In its amicus brief in County of Los Angeles v. Mendezthe State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, where any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.

Everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them. The Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant in violation of the Fourth Amendment to search the shack thereby “provoking” Mendez.

Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.

In this case the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “[W]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

The SLLC urges the Supreme Court to reject the “provocation” rule for a number of reasons. First, it holds officers liable even when they use reasonable force, contrary to Supreme Court precedent holding officers liable only for excessive force. Second, it punishes officers who may need to use force to save lives. For example, imagine if in this case Mendez really had a rifle and intended to shoot to officers at his door. Finally, the brief points out that the absence of a warrant in this case didn’t cause Mendez’s injuries. The exact same injuries would have occurred if the officers had performed the same search the same way with a warrant.

Dan Collins, Mark Yohalem, and Seth Fortin of Munger, Tolles & Olson wrote the brief which was joined by the National Association of Counties, National League of Cities, International City/County Management Association, International Municipal Lawyers Association, California State Association of Counties, League of  California Cities, and the National Sheriffs Association.