CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, June 8, 2018

Balisacan on Police Provocation and Fourth Amendment Reasonableness

In some cases that involve the deployment by police officers of coercive force against a citizen, there arise allegations that the police officers provoked the violent encounter–that by their own antecedent acts, they created the situation which necessitated their eventual resort to force. Some federal circuits factor this type of “police provocation” into their analysis of whether police officers used excessive force under the Fourth Amendment and under Graham v. Connor’s “reasonableness” calculus. Other federal circuits, however, confine their analyses to the exact moment when force was deployed, thereby excluding all prior events, including any possible event of police provocation. To further add to this doctrinal divergence, the Ninth Circuit promulgated its own “provocation rule,” which incorporated police provocation into the “reasonableness” calculus, but only if the police officers’ provocative acts amounted to independent Fourth Amendment violations. This discord in jurisprudence, which scholars have previously weighed in on, affords differentiated justice for injured parties based on a mere accident of geography, and hinders efforts to raise standards of accountable policing across the United States. Using as a starting point the Supreme Court’s 2017 decision in Los Angeles v. Mendez, this paper builds on and updates previous scholars’ works and proposes a way forward. It argues that the issues that the Mendez court settled (e.g., the rejection of the “provocation rule”), and those that it left open (e.g., the proper interpretation of the Graham test; the use of a “proximate cause” approach to pleading police provocation) can provide a framework for short-term and long-term plans of action. In light of Mendez’s redrawing of the doctrinal map, this paper proposes an agenda that litigants and courts can pursue. This proposed agenda advances a coherent doctrine where the Fourth Amendment is approached from a holistic perspective and police provocation is incorporated into the “reasonableness” calculus. This paper argues that this legal regime is most consistent with the demands of justice for police violence victims and encourages judicious use of force by the police.

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