SCOTUS Will Likely ‘Iron Out’ Inconsistent 9th Cir. Doctrine

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By Jessica DaSilva

Dec. 6 — The U.S. Supreme Court will likely overturn a ruling from the Ninth Circuit that found police officers personally liable after they unconstitutionally entered a backyard shack and shot a defendant who had been pointing a BB gun at them in the leg, according to a criminal procedure professor ( Los Angeles County v. Mendez, U.S., No. 16-369, review granted 12/2/16 ).

The U.S. Court of Appeals for the Ninth Circuit ruled that the officers were not entitled to qualified immunity under the provocation doctrine, which finds officers personally liable when a violent confrontation is provoked by an intervening constitutional violation. Here, the claimant argued the warrantless search of the shack broke the seal of qualified immunity.

The Supreme Court granted review in the case Dec. 2.

Because the Ninth Circuit is such an outlier as the only circuit that used the provocation doctrine in this fashion, it is likely the court granted certiorari to bring it into compliance with the rest of the circuits, said Professor Bennett Gershman at Pace University’s Elisabeth Haub School of Law in White Plains, N.Y.

Both the district court and Ninth Circuit found that the officers acted reasonably, Gershman pointed out. However, both ruled that even though the officers didn’t use excessive force, they weren’t entitled to qualified immunity.

It’s unlikely the argument would sway the high court, which Gershman said tends to give police officers the benefit of the doubt, especially in dangerous situations.

Here, he said the officers’ actions weren’t obviously unconstitutional. The couple who were shot in this case lived in a shack on someone else’s property. Officers had the permission of the owner to enter the shack, but not the couple living inside it, he noted.

Gershman said that set of facts makes it believable that officers likely acted reasonably in thinking they complied with their constitutional duties by getting permission from the owners. In fact, that’s exactly what the Ninth Circuit and district court found, he added.

“In a way it’s kind of ironic because in [this] case, the police officers’ shooting of both individuals was found to be reasonable because one of them had a BB gun that looked like a shotgun,” Gershman said, and yet they weren’t granted qualified immunity. “The court is really trying to iron out this rule for uniformity.”

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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