Ninth Circuit "Provocation" rule struck down.

[KeeFus]

The ninth circuit with its rulings...

https://medium.com/coffee-house-writers/provocation-rule-rejected-5d0ae6b289ea

Thoughts?

[voodoo_man]

The ninth circuit with its rulings...

https://medium.com/coffee-house-writers/provocation-rule-rejected-5d0ae6b289ea

Thoughts?

That ruling never made any sense and should have been struck previously. I read the scotus explanation and it makes perfect sense. You can't just try to find something to stick an officer with retroactively, even if the case itself was sort of messed up to begin with.

[Erick Gelhaus]

If you thought the original stuff in Mendez v. County of Los Angeles was interesting and flawed, spend sometime looking at Hayes v. County of San Diego, both the federal circuit ruling and the one from the Cal Supreme Court.

[voodoo_man]

If you thought the original stuff in Mendez v. County of Los Angeles was interesting and flawed, spend sometime looking at Hayes v. County of San Diego, both the federal circuit ruling and the one from the Cal Supreme Court.

I remember reading it and thinking to myself, "were they high on that legal weed when they wrote it?"

[TAZ]

Not quite sure I am grasping the ruling correctly. When you have an arrest warrant for a person and you have reason to believe he is in location A does that automatically mean you have a right to search location A? What about other locations on the same property?

[Duelist]

I'm kind of scratching my head. Since when do you get to shoot somebody because they had a gun in their hand?

But the ruling by SCOTUS seems to make sense.

[TAZ]

I'm kind of scratching my head. Since when do you get to shoot somebody because they had a gun in their hand?

But the ruling by SCOTUS seems to make sense.

I'm ok with a cop shooting someone that poses a reasonable threat to their safety, and a man with a gun would be that. I'm trying to figure out why the cops had a right to be there to begin with and why they can shoot someone if they didn't announce or ID themselves. Seems odd to me that a cop can kick a door down without identifying themselves and then shoot someone who reacts to a potential threat. I'm obviously missing the sequence of events here.

[ssb]

I'm ok with a cop shooting someone that poses a reasonable threat to their safety, and a man with a gun would be that. I'm trying to figure out why the cops had a right to be there to begin with and why they can shoot someone if they didn't announce or ID themselves. Seems odd to me that a cop can kick a door down without identifying themselves and then shoot someone who reacts to a potential threat. I'm obviously missing the sequence of events here.

From the article, I'll say that I'm a little put off by their description of the ruling. My work experience has been bad initial seizure = bad everything that follows (including further seizures), but that's evidentiary stuff and also context-specific. But, I need to do some research to say anything further. If there's anything that I've learned about the internet, it's that it sucks at explaining complex legal issues to me.

[Erick Gelhaus]

My work experience has been bad initial seizure = bad everything that follows (including further seizures), but that's evidentiary stuff and also context-specific. But, I need to do some research to say anything further.
If I'm understanding this right, the Court did not do away with the Exclusionary Rule. They are only looking at whether or not a use of force was justified at the time it occurred. And looking at it just that way rather than through "provocation" or the DoJ's segmentation path as forced on departments in the various consent decrees.

Now that I'm kicking this around in my head its pretty interesting. All force is evaluated under the 4th Am and the Exclusionary Rule comes from the 4th. I've got a guy who specializes in Terry issues and has a more than passing interest in Use of Force. I need to run the idea past him.


If there's anything that I've learned about the internet, it's that it sucks at explaining complex legal issues to me.
Absolutely. Excellent observation.

[ssb]

If I'm understanding this right, the Court did not do away with the Exclusionary Rule. They are only looking at whether or not a use of force was justified at the time it occurred. And looking at it just that way rather than through "provocation" or the DoJ's segmentation path as forced on departments in the various consent decrees.

Now that I'm kicking this around in my head its pretty interesting. All force is evaluated under the 4th Am and the Exclusionary Rule comes from the 4th. I've got a guy who specializes in Terry issues and has a more than passing interest in Use of Force. I need to run the idea past him.


Absolutely. Excellent observation.

I didn't mean to suggest that they've somebow done away with the Exclusionary Rule, but rather that it seems off to me that despite a bad initial search/seizure, that's completely removed from the analysis of a subsequent seizure (use of force) that arguably stems from the bad initial search/seizure.

I'm not saying cops shouldn't shoot people who point guns at them. I am, however, having a hard time with the potential ramifications of such a case. I really need to find time to read the ruling, as it's generated a fair bit of outrage among some people whose opinion I respect.

[TAZ]

I didn't mean to suggest that they've somebow done away with the Exclusionary Rule, but rather that it seems off to me that despite a bad initial search/seizure, that's completely removed from the analysis of a subsequent seizure (use of force) that arguably stems from the bad initial search/seizure.

I'm not saying cops shouldn't shoot people who point guns at them. I am, however, having a hard time with the potential ramifications of such a case. I really need to find time to read the ruling, as it's generated a fair bit of outrage among some people whose opinion I respect.

I'm in the same boat here. Would like to have some commentary from folks who are familiar with the case and ruling to offer more insight.

The way the article makes it sound is that even though the cop had no right to enter the property, didn't announce his presence to the person inside he can still shoot the person there.

I certainly hope there is a LOT of missing info there. I'm not sure I like the idea of where that ruling will lead us.

[TGS]

I'm in the same boat here. Would like to have some commentary from folks who are familiar with the case and ruling to offer more insight.

The way the article makes it sound is that even though the cop had no right to enter the property, didn't announce his presence to the person inside he can still shoot the person there.

I certainly hope there is a LOT of missing info there. I'm not sure I like the idea of where that ruling will lead us.

I'm similarly confused about the case, but where do you think this ruling will lead us? The rest of the country didn't have this Provocation Rule, and didn't seem to go down any dark path without it.

[Wondering Beard]

The way the article makes it sound is that even though the cop had no right to enter the property, didn't announce his presence to the person inside he can still shoot the person there.


I had a slightly different take: the fact that the police violated the 4th amendment, doesn't remove their right to self defense, so long as the use of force is appropriate. In effect, the use of force is a separate legal argument from the illegal entry and the two shouldn't be linked.

Wasn't there a case a year or so ago in which the police violated the 4th amendment (entering a home illegally) and got shot, or shot at, by the home owner? I believe The state tried to convict the homeowner of murder or attempted murder, and when that went to SCOTUS (or just the circuit appellate court?), the court found against the state since the home owner didn't get to lose his right of self defense because the police had entered illegally. Can anyone confirm the above?

[TAZ]

I'm similarly confused about the case, but where do you think this ruling will lead us? The rest of the country didn't have this Provocation Rule, and didn't seem to go down any dark path without it.

Having grown up in a dark place as you put it, where LEO were untouchable, so I am SUPER sensitive to cases and rulings where LEO are seemingly given a free pass for illegal activity and the damage they cause. I am a FIRM supporter of law enforcement and law abiding folks in general so long as they remain law abiding. I am not a supporter of politicians getting free passes cause they are too big to take down, or rich folks or any folks getting a free pass when they break the law. Im one of those old fogies who feels the law applies equally to all, hence the whole blindfold symbology. You may not admit it, but we are on a dark path. You just saw not a few month ago some politician get a free pass for breaking laws that others have been jailed for. Thats a dark path.

If I am understanding this ruling, it states that when it comes to LEO we dont need to look at the totality of the situation. That all we need to look at is that the LEO had a right to self defense from a man with a gun. Thats a dark path because it does not apply the law the same to all. If I kick your door in and shoot you when you grab a gun would we look at the totality of the situation or claim that I was defending myself from a MWG? There has to be some mitigating circumstance that justifies the rulings that I am missing.


I had a slightly different take: the fact that the police violated the 4th amendment, doesn't remove their right to self defense, so long as the use of force is appropriate. In effect, the use of force is a separate legal argument from the illegal entry and the two shouldn't be linked.

Wasn't there a case a year or so ago in which the police violated the 4th amendment (entering a home illegally) and got shot, or shot at, by the home owner? I believe The state tried to convict the homeowner of murder or attempted murder, and when that went to SCOTUS (or just the circuit appellate court?), the court found against the state since the home owner didn't get to lose his right of self defense because the police had entered illegally. Can anyone confirm the above?

The question for me is why was the use of force appropriate for the LEO? Think of it from a general standpoint. Person A enters a dwelling when he has no legal right to do so. Resident reacts with a gun. Person A shoots resident. Is that murder or self defense? AFAIK in TX thats a home invader killing a resident aka murder. From what I have read, we have a case where no search warrant exists (why I asked if arrest warrant = search warrant), no announcement that LEO were on the site looking to enter. Why should the resident assume that its cops and not gangbanger entering his place? He has no reason to believe that LEO are searching for something (unless he knew what was going on around him and was not mentioned in the article) so a reasonable person would believe that its criminals entering his place without his permission. In that case he has a right to self defense. This is why I am hoping form more information about what actually happened and not the snippets from the article. This ruling seems to contradict other cases where citizens have legally defended themselves from LEO acting outside the law as in the case you mentioned.

[DpdG]

I believe the deputies in Mendez can still be found civilly liable for Mendez's injuries, but under a claim for conducting an unlawful search with subsequent injury, rather than a claim of excessive force. Although it is not clearly addressed, I suspect this ruling also means the deputies, or any police officers in a similar situation, cannot be prosecuted criminally for the shooting. I base this on the statement that the use of force itself was justified, even if the search was not.

I think the biggest take away from this case is the Supreme Court reigning in the 9th Circuit for creating a test that conflicts with SCOTUS precedent.

Here is an analysis from the SCOTUS Blog that discusses the nuances further: http://www.scotusblog.com/2017/05/opinion-analysis-finding-fourth-amendment-unanimity-allowing-fourth-amendment-justice/

[TGS]

TAZ,

I completely agree with your concerns.

After reading the various discussion, I think I get the jist behind the decision but would need an in person explanation by an astute person. The FLETC legal division has some very talented lawyers hired on as instructors. They have a weekly podcast on top of their monthly legal review email chain, and I am looking forward to the podcast next week.

On face value I am okay with this decision for no reason other than it was a unanimous decision. The Provocation Rule was even shot down by justices who are outspoken anti-LE and have openly said their court unfairly favors LE. Think about that.

[ssb]

After reading the opinion, I agree that the 9th Circuit's so-called provocation rule is unfounded. I prefered their alternative justification (proximate cause) for holding the officers liable. However, the lower courts shit the bed on creating a basis for liability based upon proximate causation, as seen on pp. 10-11.

My basic position is, an officer's failure to knock-and-announce -- especially in a situation where, for example, they hit the wrong place or from this particular case, they lack justification to even be in the domicile -- would reasonably lead to the occupant responding with force... because forcible entry without lots of shouts of "POLICE" is more consistent with a home invasion than police warrant service. I think the opinion leaves room for holding an officer liable under such circumstances, and I'm OK with that.

[TAZ]

Appreciate the explanations from folks with a better understanding of the intricacies of the case. When it comes to legalese I'm at a stage where I don't know what I need to know so I could know what I don't know. So appreciate the patience.

[HCM]

Not quite sure I am grasping the ruling correctly. When you have an arrest warrant for a person and you have reason to believe he is in location A does that automatically mean you have a right to search location A? What about other locations on the same property?

In general, if LE has a felony arrest warrant, LE can enter and search a location for that individual if there is reason to believe the location is the suspects residence (sometimes referred to as "first party" residence) and reason to believe the suspect is present.

The relevant U.S. Supreme Court case law is Payton v. New York, 445 U.S. 573 (1980).

Keep in mind Parole and probation in CA are two very different sets of circumstances.

A Parolee At Large or PAL in CA is a felon and a PAL warrant is a felony warrant. If I recall correctly parolees in CA are considered to be inmates serving their sentence in the community under parole supervision rather than in prison. As a condition of parole they have "search clauses" or "fourth amendment waivers" which allow search of their person, vehicle or residence by any CA Peace Officer.

The 9th circuit's provocation rule has always been ridiculous.

In this case, the officers failing to knack and announce and potentially exceeding the scope of their lawful search by searching the outbuilding which turned out to be a seperate residence is a completely separate issue from whether or not their use of force was "objectively reasonable" under the U.S. Supreme Courts standard in Graham vs Conner.

A note about the totality of the circumstances. In many parts of CA cost of living and housing are RIDICULOUSLY expensive. I have been in many houses chopped up into multiple indivual rooms for rent, sheds and outbuildings rented out as living space etc. these sub divisions / sublets are often illegal and not marked like a conventional apartment. They literally put up sheet rock and studs and divide living rooms, dining rooms etc and everyone, including the people in the shed in the back yard shares the bathroom and kitchen.

[john c]

If I am understanding this ruling, it states that when it comes to LEO we dont need to look at the totality of the situation. That all we need to look at is that the LEO had a right to self defense from a man with a gun. Thats a dark path because it does not apply the law the same to all. If I kick your door in and shoot you when you grab a gun would we look at the totality of the situation or claim that I was defending myself from a MWG? There has to be some mitigating circumstance that justifies the rulings that I am missing.

The question for me is why was the use of force appropriate for the LEO? Think of it from a general standpoint. Person A enters a dwelling when he has no legal right to do so. Resident reacts with a gun. Person A shoots resident. Is that murder or self defense? AFAIK in TX thats a home invader killing a resident aka murder. From what I have read, we have a case where no search warrant exists (why I asked if arrest warrant = search warrant), no announcement that LEO were on the site looking to enter. Why should the resident assume that its cops and not gangbanger entering his place? He has no reason to believe that LEO are searching for something (unless he knew what was going on around him and was not mentioned in the article) so a reasonable person would believe that its criminals entering his place without his permission. In that case he has a right to self defense. This is why I am hoping form more information about what actually happened and not the snippets from the article. This ruling seems to contradict other cases where citizens have legally defended themselves from LEO acting outside the law as in the case you mentioned.

A couple of salient points, from the article. The deputies entered the shack, but not forcibly; they did not kick down the door. In CA, unlike TX, from what I understand, residents can only use deadly force to prevent forcible entry into their home. Actually, the code section states that forcible entry entry is presumed to be a threat of death or serious bodily injury. In practice, the converse is also true.

Here's the PC section:


198.5. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

The real question here is the knock and announce. Since it was actually a residence, the deputies should have done that before entering. This is a little bit of a "gotcha" as many residences don't appear to be residences from the outside.

Arrest warrants allow officers to search any location where they have "reason to believe" that the subject of the warrant may be. See United States v. Route, 104 F.3d 59, 61 n. 1 (5th Cir. 1997). See also United States v. Barrera, 464 F.3d 496, 502 (5th Cir. 2006) (“Route offers a standard for determining the amount of due diligence required to support a reasonable belief that a defendant lives at and is present within a residence.”).

Officers can also search any part of a location where the suspect may be.

[DpdG]

I can't speak to CA's rules for arrest vs search warrants, but in my state (NH) an arrest warrant allows LE to enter the wanted person's residence for the purpose of locating him/her. If the wanted person is believed to be in the property of another, a search warrant is required. There are limited exceptions, including consent or exigency, but non-consensual exceptions are viewed quite narrowly.

Keep in mind the NH state constitution protects citizens' rights more stringently than the US Constitution, especially in regards to search and seizure.