The Supreme Court On Excessive Force

BY Herschel Smith
4 years, 11 months ago

The U.S. Supreme Court on Tuesday unanimously agreed that sheriff’s deputies used reasonable force when in a 2010 shooting that left two wounded.

Falling back on a longstanding objective reasonableness argument in use-of-force case law, the high court overturned a previous ruling in the case of Angel Mendez and Jennifer Garcia, between them shot 15 times by Los Angeles County deputies conducting a search.

Two deputies, Christopher Conley and Jennifer Pederson, were part of a larger force of officers looking for a dangerous parolee when they came across the couple living inside a primitive shack behind the property being searched. Without a warrant or announcing their presence, the officers opened the door to the shack which prompted a napping Mendez, who had a BB gun on his futon that he used to kill rats with, to stand. Conely yelled, “Gun!” and the deputies opened fire, hitting both individuals. Mendez, shot 14 times, had to have a leg amputated while Garcia, pregnant at the time of the shooting and hit once in the back, feared to lose her child.

Citing excessive force and civil rights allegations, the couple sued the county in 2011 in federal court, with U.S. District Judge Michael W. Fitzgerald in August 2013 granting over $4 million in damages to Mendez and Garcia. The ruling, upheld by the U.S. 9th Circuit on appeal last year, was overturned by the Supreme Court this week.

The deputies, previously cleared after the shooting by the LASD’s Office of Independent Review, used reasonable force as noted by the Supreme Court in an opinion written by Justice Samuel Alito for the eight-jurist panel that did not include newly added Justice Neil Gorsuch, who was not part of the court when the case was argued.

The court fell back on the 1989 Graham v. Connor ruling which held that objective reasonableness must be used when determining if excessive force was used by police, with courts basing their decisions on the information the officers had at the time.

What Alito took exception to was the 9th Circuit’s use of the so-called provocation rule to find the deputies liable for $4 million in damages, pinning it on a “murky” connection to a Fourth Amendment violation of search and seizure rights to label it excessive force. The logic of the 9th Circuit’s decision in citing the provocation rule was that the deputies lost their immunity from damages after they entered the shack without a warrant.

While I’m not a legal scholar, with all due respect to the writeup at, this is a complex ruling and the Supreme Court is famous for deciding cases within a very limited framework.

The decision can be found here.  Alito had a problem with invoking a Ninth Circuit rule that he believed didn’t apply and could be used for nefarious reasons in the future.  Here is the money quote.

The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an exces­sive force claim where one would not otherwise exist.

But if Alito has destroyed the Ninth Circuit “provocation” rule, in one and the same sentence he has destroyed the notion that there can ever be such a thing as excessive force.  He takes aim at the provocation rule, but in the process he runs roughshod over the specifics of the case where LEOs shot up two people who posed no danger to them because of “information they had at the time.”

Whether they should have had better information is left unaddressed, as it always will be.  Whether the safety of the innocents should be as important (or more important) than safety of the officers is left unaddressed.  Moreover, while the Supreme Court is protected by their own security, Alito doesn’t address the fact that we – the ordinary peasants – simply cannot wait for alleged LEOs to finish their business while we lie around unmoved as I’ve observed before concerning a case of armed men dressed in SWAT uniforms who invaded a home.

In addition to your felt need to “go home safely at the end of your shift,” we have an equivalent need to be safe in our own homes, to prevent flash-bang grenades from being thrown into our toddler’s cribs, to prevent your reflexively shooting our family dogs, and to prevent street thugs like this from raiding our homes under the guise of being police officers.

You see, we can’t just lay down and let people screaming “police, police, get the fuck on the floor, police, police” … come into our homes without countering those efforts with close quarters battle.  Because they may not be police.”

But in fact the 11th U.S. Circuit Court of Appeals did just this, i.e., the gave LEOs a pass for shooting an innocent man on bad information because they invaded his home and he resisted, not knowing who the invaders were.  So while the 11th U.S. Circuit Court of Appeals beclowned themselves with an idiotic ruling that could make the founders turn in their graves, the U.S. Supreme Court played one-upmanship in the parade of the ridiculous.

For LEOs, it’s okay to shoot a man who poses you no danger if he has a BB gun, as long as the information you have at the time, correct or incorrect, makes you believe you are in danger.  Warrant or no warrant.  It makes no difference.  Alito found that there was no excessive force.  Nothing else matters, and there will never be any recollection of the Ninth Circuit’s “provocation” rule or what Alito said about it.  This is all that matters.

If you were ever waiting on the Supreme Court to come to your aid regarding overbearing and dangerous police actions, you can disavow yourselves of the notion that there will be any aid forthcoming.  You’ve been taken.

Trackbacks & Pingbacks


  1. On June 1, 2017 at 2:10 am, Hanzo said:

    It seems Alito gave an out for the case to be revisited, at least from the warrantless angle.

    “The case is not over as Alito held that the lower court on remand should revisit the liability for damages under the warrantless entry claim, “based on the deputies’ failure to secure a warrant at the outset.”
    From the article you quoted.

  2. On June 1, 2017 at 4:37 am, David Landro said:

    Shoot first, ask questions later… bust in hard, carried out stiff… maybe me too… Rather that than live with a boot on my face…

    The only way this changes: People unlearn a life time of obedience training and defend themselves.

  3. On June 1, 2017 at 8:44 am, Dav said:

    So then, it is better to die fighting than to just be shot dead. Shoot first is now the only viable response.

  4. On June 1, 2017 at 9:18 am, Ned said:

    Of course. Some animals are more equal than others.

  5. On June 1, 2017 at 10:17 am, Matt said:

    The federal court should not even have the power to order a state or local agency to pay money. Would you want a United Nations court ordering around a state agency? There should be not constitutional claim against a state. One should have to sue in state court. States originally had sovereignty and I wish they still did. A big problem even in the Liberty movement is that people look for the federal government to protect us. Unfortunately, the vast majority of people have accepted the Lincolnian version of the constitution.

  6. On June 1, 2017 at 10:49 am, Herschel Smith said:


    I doubt the people who sued are part of the “liberty movement.”

    As for me, where did you read that I want money granted to anyone? I would rather these cops be made an example and imprisoned for their actions for violation of rights.

    You are reading too much into the prose attached to the analysis because my commentary is strictly limited to dangerous and unconstitutional police actions. Just because someone links another article doesn’t mean they agree with every word of that article. I frequently link articles with which I totally disagree.

  7. On June 1, 2017 at 12:14 pm, revjen45 said:

    Does this kind of crap justify not calling the Kripos in time of peril (e.g. home invasion) until it’s all over with but the shouting? You already have all the thugs you can handle, why summon more against whom you have no chance to prevail?

  8. On June 1, 2017 at 12:28 pm, Jack Crabb said:

    “If you were ever waiting on the Supreme Court to come to your aid regarding overbearing and dangerous police actions, you can disavow yourselves of the notion that there will be any aid forthcoming. You’ve been taken.”

    Exactly,m Herschel, exactly.

    The magic black robed ones are just as bad as the magic blue costumed ones.

  9. On June 1, 2017 at 1:25 pm, Archer said:

    I’m no fan of the use of unnecessary force, but lacking more information I have to respectfully disagree on a few points, Herschel. Alito is correct in pointing out that a violation of another Constitutional right doesn’t automatically make it excessive force; the two issues must be argued separately. That particular 9th Circuit rule needed to be struck down.

    The rest of the case hinges on the information the officers had at the time, which is an appropriate frame of reference to examine.

    Based on that information (as reported), a “primitive shack” behind a house they were searching (legitimately, seeking a suspect known to be dangerous) would appear at the time to be a tool shed or kids’ fort or some other out-building — part of the property they were authorized to search. The possibility it was someone else’s domicile (Constitutionally, another property) is so unlikely that it probably never occurred to them. Based on this, I believe the search was lawful.

    Then, when they (reasonably) entered the “building”, someone inside had a “gun” near-at-hand. It turned out to be a BB gun, but what kind of BB gun was this? Was it an obvious toy made of bright-colored plastic, or a realistic replica? This is an important point; if the Tamir Rice shooting was justified because officers can’t be expected to tell the difference — at distance and in a split second — between a real pistol and an Airsoft pistol modeled after a real pistol. Based on this, I believe the shooting was probably justifiable.

    To change gears, however, all that might justify the shooting generally, but did the guy really need to be shot 14 times? 15 hits (counting the hit on the pregnant girlfriend) is a full magazine IF we assume perfect accuracy, which is a stretch (if LASD deputies’ skills are anything like NYPD officers’, they very likely fired at least a full magazine each to get 15 hits). Whatever happened to controlled pairs? (Plus, it’s a shack, not a mansion — surely the back wall is not out of Taser range?) The original $4 million award might also be justified for the lawful-but-unnecessary use of force.

    All that said, my bigger concern is this: Did SCOTUS just declare that the cry of “Gun!” is now carte blanche permission to empty a magazine and not worry about unnecessary/excessive force? How will this affect lawful open or concealed carriers, where a gun is known to be present? What about traffic stops or any other situation where a gun (or another object that bears a passing resemblance to a gun) might be present?

    As I said above, lacking more information I think this particular shooting could be justified under the circumstances. My worry is about the yet-to-be-seen ramifications of the SCOTUS precedent.

  10. On June 1, 2017 at 1:28 pm, Johnathan said:

    WOW — this could happen to anyone. If a person responds to an unexpected “visitor” at their home, with a sidearm in hand or on their belt, all the cop has to do is yell “GUN” and claim he was in fear for his life…

    This reads like the deputies were on a “Search & Destroy” mission, especially given that they had no warrant.

    Out of curiosity: If they had a warrant, would they have been required to knock and present it?

  11. On June 1, 2017 at 1:32 pm, Herschel Smith said:


    I haven’t thought about the issue of the Ninth’s “provocation” rule since it wasn’t necessary to say what I thought about this issue. I would have to study it and think about it some before weighing in.

    At issue with me wasn’t the Ninth’s ruling, but rather, the assumption behind application of the rule to begin with. The SCOTUS could have easily reached another decision, to wit, remand the case to the Ninth Circuit and tell them to find that this was excessive force.

    But this is an easy one for me since I don’t believe there is ever an excuse for forcible entry into a domicile by anyone, including LEOs, except under immediate and obvious duress to protect life from imminent loss or injury. A man’s home is his castle, period. That means for everyone, excepting loss or injury to life, in which case the protection of God’s image in mankind takes precedence.


    As you know as warrant means only that a corrupt judge has agreed to something.

  12. On June 1, 2017 at 1:56 pm, Archer said:

    (sorry for that uber-comment ;) )

  13. On June 1, 2017 at 4:26 pm, Lt. Greyman, NVA said:

    A simple question.

    I am asleep at my home and armed men break in at the far side of the house screaming something and shooting our dog, which has gone into Overdrive. I hunker down and return fire, killing several. Then I find out that I have shot police that have the wrong address?

    Is that self defense based on “What I knew and what a reasonable man would know at the time?”

  14. On June 1, 2017 at 11:37 pm, Landroll said:

    To Lt. Greyman, NVA: No I don’t think that would play with most blue suiters. I , of course, would think as you probably do that it is sufficient reason. How ever, taking on a TAC Team, you better be using some really high power stuff which would be really unwieldy in your bedroom or den. Alao right wrong or indifferent, you’d need to be ready for a major poop storm.

  15. On June 2, 2017 at 11:55 am, revjen45 said:

    1)Judges are just .gov shysters in black robes. They know who they work for and it ain’t the peons.
    2) If you engaged the Einsatzgruppen and killed several the legal fallout would be irrelevant, since you would not survive. Ref. the Branch Dividians. They would burn the place down around you and everybody else inside. You would die and they would walk. See 1).

  16. On June 7, 2017 at 1:41 pm, A Freeman said:

    We should do what they do in “prison”. When the toll the bell, we all just lay down, if you don’t lay down, you invoke probable cause, if you do lay down, you may be searched for officer safety. Then no innocent persons would be harmed. If you have nothing to hide, then you have nothing to be afraid of.

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You are currently reading "The Supreme Court On Excessive Force", entry #17208 on The Captain's Journal.

This article is filed under the category(s) Police,Supreme Court and was published May 31st, 2017 by Herschel Smith.

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