Incorporating Police Provocation into the Fourth Amendment 'Reasonableness' Calculus: A Proposed Post-Mendez Agenda

Abstract

When police officers provoke a violent encounter that leads to the shooting of a civilian, should they be held liable for damages? Intuitive notions of justice suggest that they should, but Fourth Amendment jurisprudence has yet to provide a clear answer. Circuits split on whether courts can consider officers’ earlier provocations. Using a “totality-of-the-circumstances” approach, some federal circuits hold that a police officer’s prior provocative acts leading to a shooting should be factored into the Fourth Amendment “reasonableness” calculus. Using an “at-the-moment approach,” other federal circuits limit their reasonableness analyses to the exact moment of the shooting, which excludes police officers’ antecedent acts even if those acts arguably provoked the civilian. A third approach, under the Ninth Circuit’s now-defunct “provocation rule,” provides that police officers’ provocative acts leading to the shooting can be considered only if those prior acts amount to independent Fourth Amendment violations. This circuit split raises procedural and ethical concerns. This Note argues that this discord in Fourth Amendment jurisprudence should be resolved in favor of the totality-of-the-circumstances approach. Police officers should not be deemed to have acted reasonably under the Fourth Amendment if they themselves created the situation that necessitated their use of violent force. This Note further proposes a blueprint for moving the law in this direction using lessons from the 2017 case Los Angeles v. Mendez. Proceeding from the holdings of the Mendez court, this Note outlines and provides legal support for a three-fold agenda: first, for the Ninth Circuit to adopt the totality-of-the-circumstances approach in the wake of the demise of its provocation rule; second, for litigants to follow the Mendez court’s suggestion of using the proximate cause approach to alleging police provocation more often—i.e., to assert that police officers’ previous acts proximately caused the resulting injury, as compared to arguing that those acts affect the reasonableness of their eventual use of force; third, for the Supreme Court, at the first available opportunity, to declare the totality-of-the-circumstances approach as the uniform Fourth Amendment standard in all courts, incorporating police provocation into the reasonableness calculus.