Justice, SCOTUS, Supreme Court

Supreme Court To Decide If Cops Can Troll You, Then Shoot You

The 9th Circuit has held that if the cops provoke a violent confrontation, and then deal with you, violently, they can be held liable.

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We live in a world where this is a controversial sign. (Photo by David McNew/Getty Images)

We live in a world where this is a controversial sign. (Photo by David McNew/Getty Images)

The Ninth Circuit has adopted a pretty reasonable position when it comes to officer-involved shootings. “Provocation.” Police officers are generally not liable for the force they use against you in the course of their duties. But the Ninth Circuit has held that if the cops provoke a violent confrontation, and then deal with you, violently, they can be held liable.

The other circuits have not followed suit. In most of the country, a cop can kick you in the balls, then shoot you for being a “threat” if you crumple within the grabbable area of a gun.

On Friday, the Supreme Court granted cert in a case that is a direct challenge to the Ninth Circuit’s provocation rule. The case is Los Angeles County v. Mendez. Angel Mendez and wife Jennifer Mendez were homeless, living in a shack in a friend’s backyard. Police, searching for someone else, barged into their windowless shack. No knock. No warrant.

Police allege that Mendez reached for a BB gun, which he owned for shooting rats. The cops opened fire, unleashing 15 shots. Angel was shot multiple times; Jennifer — who was pregnant — was shot in the back.

A federal judge ruled that the police action itself was not “excessive.” Because I guess firing 15 shots at homeless people is just a love tap from LAPD. But the judge did award the Mendezes $4 million because the police “provoked” the confrontation by barging in without a warrant.

The Ninth Circuit affirmed on appeal, but now the Supreme Court wants to take a look. From the ABA Journal:

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The Supreme Court agreed to consider two issues in the cert petition. The first issue is whether the provocation rule should be barred. The other is whether an incident giving rise to a reasonable use of force is an intervening event that breaks the chain of causation from a prior unlawful entry.

This does not look good for those who hope that there is some limit on police action.

First, there’s the problem that the trial judge initially ruled the force used as “reasonable.” It seems to me that spraying a backyard shack with 15 bullets because someone has a BB gun, and shooting a pregnant woman in the back while you’re doing it, would be “un”reasonable force. Excessive force. You wouldn’t waste 15 bullets on a homeless pregnant woman and her husband in a video game.

But this case is stuck with that determination. The Supreme Court will not be looking again at whether the actual use of force was in fact reasonable. Which means they’re already talking about the wrong thing. We’re already forced to pretend that disarming a man with a BB gun and turning a shack into Fallujah are the same thing.

Is there an intervening incident that can give rise to a reasonable use of force that breaks the chain of an unlawful entry? Sure. Theoretically, of course there is. The problem to me is that shooting a pregnant woman in the back because her husband was startled and reached for his BB is not reasonable.

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But the bigger issue is that the Court wants to take a look at the provocation holding. By the time the Court hears this case, Trump will likely have appointed whoever the next Scalia is going to be. My guess will be that he or she will be a real “law and order” type. And the law-and-order crowd doesn’t appear to think that the cops are capable of doing anything wrong.

The concept that the cops could be at fault for a violent confrontation seems like a stretch for people who think death without trial is a reasonable punishment for refusing to comply with an officer’s orders.

So, I don’t know what to tell you. The cops can shoot you if you are just trying to do what they say. They can shoot you if you are lying on the ground. They can shoot you if you have a gun, a toy gun, or a BB gun. They can shoot you if you are running away. They can shoot you if they don’t have a warrant. They can shoot you if they are looking for someone else. They can shoot you if you are pregnant, or if your kids are in the car, or if you are a kid.

Cops can shoot you for any reason, or no reason at all. They’re dangerous. Try to avoid them if you can.

Supreme Court accepts police shooting case involving 9th Circuit’s ‘provocation’ rule [ABA Journal]

Earlier: Jury Can’t Decide If Shooting A Fleeing, Unarmed Black Man Five Times In The Back Is A Crime

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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