The Death of Provocation
The U.S. Supreme Court reverses the Ninth Circuit’s controversial “provocation rule” in excessive force cases
Wednesday, November 15, 2017
by: Brian Augenthaler

Section: Fall 2017

Author Biography

Brian Augenthaler is an associate attorney at Keating, Bucklin & McCormack and has worked at KBM since he graduated law school in 2011. His practice focuses on civil rights law, including law enforcement, employment, and land use. Brian has tried ten civil cases to verdict, both as a solo attorney and as a second chair.
One night in the late-90s, off-duty Boise police detective David Smith drove an unmarked patrol car with his wife and daughter. They had just finished working a Neil Diamond concert (the officer as security and his family as ushers). Detective Smith was suddenly overtaken by a speeding car. The speeding car careened into the oncoming lane. It nearly collided with another motorist. Little did Detective Smith know, the driver (Ryan Hennessey) had just been involved in a hit-and-run. Detective Smith activated his lights and chased Hennessey. Hennessey cut his own lights and accelerated. Hennessey crashed. Detective Smith walked to the wrecked car with a gun in one hand and his flashlight in the other. Hennessey looked unconscious but was just drunk. Detective Smith identified himself. Hennessey tried to race away, but his car was inoperable. Detective Smith told his daughter to bring him his handcuffs from the patrol car. Hennessey started hitting Detective Smith. Detective Smith yelled for his daughter to radio dispatch. Hennessey grabbed Detective Smith by the throat and tie. Hennessey yelled, “Shoot me, mother-,” and came out of the car at Detective Smith swinging. Detective Smith hit him repeatedly with his flashlight. Hennessey kicked Detective Smith in the stomach and groin. Detective Smith backed away. Hennessey grabbed Detective Smith’s gun barrel. Hennessey bashed Detective Smith’s head, catapulting them away from the patrol car’s headlights into the darkness. Detective Smith continued to block blows to his head. He felt Hennessy prying his thumb off his pistol. Detective Smith fired, striking Hennessy. Detective Smith told his daughter to bring his first aid kit. His wife radioed, “shots fired.”
The Krupski decision is a clear and unambiguous interpretation of FRCP 15(c).  Any state rule that is based on this federal rule is highly likely to be interpreted similarly.  Washington’s CR 15(c) is clearly based on the federal rule (as noted in Perrin) and thus the next time this issue is addressed by the Washington Supreme Court, the inexcusable neglect exception to relation back doctrine is likely to disappear.  Until that time, however, inexcusable neglect is embedded in Washington case law and can be used to prevent amended pleadings from relating back if the circumstances warrant. It was under the law of Billington that deputies from the L.A. Sheriff’s Department searched for a dangerous parolee named Ronnie O’Dell. The task force searching for O’Dell learned from a confidential informant that O’Dell was seen at a home owned by Paula Hughes. As law enforcement planned O’Dell’s apprehension, they learned Angel Mendez lived in the backyard of the Hughes residence. In executing the plan, which was done without a search warrant, two deputies searched the backyard and walked toward a plywood shack. The deputies did not announce their presence. Unbeknownst to the deputies, Mendez and his wife were asleep in the shack. Mendez kept a BB gun in the shack to shoot rats. Upon hearing the door to the shack opening (Mendez thought it was Ms. Hughes), Mendez stood up with the BB gun with the intention of placing it on the floor. The deputies saw Mendez pointing at them with what appeared to be a small caliber rifle. The deputies shot Mendez. He lost his leg but survived.
It is far from clear how the federal district courts in Washington will deal with the abrogation of the provocation rule.
In a bench trial, the district court found the deputies liable on the basis that they had intentionally or recklessly provoked a violent response and that provocation was itself a constitutional violation. The Ninth Circuit affirmed in part, holding that entering the shack without a warrant brought about the shooting.  

In an 8-0 opinion delivered by Justice Alito (Justice Gorsuch did not take part in the decision), the U.S. Supreme Court reversed the Ninth Circuit and abrogated the provocation rule. Mendezsupra. ‎The U.S. Supreme Court reasoned that the provocation rule mistakenly conflated distinct Fourth Amendment claims, which allowed excessive force claims to proceed that would not “succeed on their own terms.” The Court noted that the provocation rule was an unwarranted and illogical expansion of Graham v. Connor (the case setting forth the standard for excessive force).
It is far from clear how the federal district courts in Washington will deal with the abrogation of the provocation rule. On one hand, the Mendez decision should lessen the probability that our law enforcement clients will be forced to defend excessive force cases that depend on negligence theories. At the very least, a lesser constitutional violation will no longer breathe life into an otherwise meritless excessive force case. On the other hand, claimants will likely seek to expand language found toward the end of the Mendez decision, which signals that the claimants can still pursue wrongful death damages proximately caused by those lesser constitutional violations. The Court gives as an example the Mendez plaintiffs proving that Mendez’s lost leg was proximately caused by the warrantless entry. It is easy to imagine that theory could stretch past even the limits previously set by Billington to encompass all manner of “creative” factual theories. It will be up to the Washington civil rights defense bar to see that Mendez is applied as the U.S. Supreme Court intended. After 15 years of Billington, we should not expect Mendez to be received without some growing pains.