9th Circuit Court of Appeals Provocation Rule & SCOTUS

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Judge a LEO by hindsight or reasonableness while a non-LEO is judged by the hindsight standard?

LEOs should be judged using reasonableness standard.
4
24%
LEOs should be judged using hindsight like other citizens.
12
71%
Other, please explain below.
1
6%
 
Total votes: 17

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High Power
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9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by High Power »

On March 22nd the SCOTUS will hear the case 16-369 LOS ANGELES COUNTY, CA V. MENDEZ.

In a nut-shell the Mendez couple were living in a shack in a friend's back yard when the LEOs, suspecting that an armed fugitive was in their dwelling, open fired first.

The LEOs didn't have a warrant. Fearing for their lives the husband reached for his BB gun and returned fire. Both husband and pregnant wife were injured. The husband lost a leg due to the wounds he received.

As expected the Mendez couple sued and the case went to the 9th Circus (excuse me I meant to say Circuit). The 9th Circuit held that the LEOs didn't use excessive force but had violated the "provocation rule." Now if I understand that rule correctly, a citizen who is illegally provoked by a LEO can respond with force and the the same LEOs cannot be immune from prosecution or civil penalties.

The Mendez's won a $4 million lawsuit. The County of Los Angeles is appealing the case to the SCOTUS who have agreed to hear the case.

The 9th Circuit's "provocation rule" conflicts with a previous ruling by the SCOTUS in Graham v. Connor 1989. In that case, the SCOTUS came up with the “reasonableness” rule. In that rule the SCOTUS said:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
What bothers me about this, is that a private citizen using lethal force against a BG is judged by the 20/20 hindsight standard but a LEO gets a break when it comes to reasonableness.

To fully grasp the importance of Mendez (and no knock warrants & excessive force) read the links below about the Graham V. Conner first. Then read about County of Los Angeles v Mendez. I'm hoping that the "provocation rule" is upheld by the SCOTUS as it will cause LEOs to think twice before shooting first and asking questions later. This is one instance in which I am in agreement with the 9th Circuit.

Graham V. Conner Links:

http://www.policemag.com/channel/patrol ... onnor.aspx

https://en.wikipedia.org/wiki/Graham_v._Connor

http://caselaw.findlaw.com/us-supreme-c ... 0/386.html

County of Los Angeles V. Mendez Links:

http://www.huffingtonpost.com/entry/los ... f37fe46648

https://www.supremecourt.gov/qp/16-00369qp.pdf

http://www.scotusblog.com/case-files/ca ... -v-mendez/
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by Javelin Man »

That's certainly a lot to think about.
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by djthomas »

High Power wrote:What bothers me about this, is that a private citizen using lethal force against a BG is judged by the 20/20 hindsight standard but a LEO gets a break when it comes to reasonableness.
Is there a citation for that? In my experience staying reasonably current on the news is that a good shoot is a good shoot. When a private citizen claims self defense they are also judged from what was known at the time, not what came to be known later.

When I think back over the major headlines in the past few years where a bad guy winds up dead because the good guy stops a crime in progress or defends themselves against an unknown assailant the grand jury almost never indicts anybody (private citizen or law enforcement).

Now, there may be a perception that private citizens are treated differently but I think that's because the circumstances surrounding the shooting are often less clear cut than with law enforcement self defense. When private citizens are involved it's more likely that the parties know each other. Think drug deals gone bad, domestic/neighbor disputes, etc. One of the first prongs of self defense is that the person claiming it must not have had a hand in provoking it. If that point is at all in dispute then it becomes a jury question.
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High Power
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by High Power »

djthomas wrote:
High Power wrote:What bothers me about this, is that a private citizen using lethal force against a BG is judged by the 20/20 hindsight standard but a LEO gets a break when it comes to reasonableness.
Is there a citation for that? In my experience staying reasonably current on the news is that a good shoot is a good shoot. When a private citizen claims self defense they are also judged from what was known at the time, not what came to be known later.

When I think back over the major headlines in the past few years where a bad guy winds up dead because the good guy stops a crime in progress or defends themselves against an unknown assailant the grand jury almost never indicts anybody (private citizen or law enforcement).

Now, there may be a perception that private citizens are treated differently but I think that's because the circumstances surrounding the shooting are often less clear cut than with law enforcement self defense. When private citizens are involved it's more likely that the parties know each other. Think drug deals gone bad, domestic/neighbor disputes, etc. One of the first prongs of self defense is that the person claiming it must not have had a hand in provoking it. If that point is at all in dispute then it becomes a jury question.
George Zimmerman?
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by WestonDon »

High Power wrote:
djthomas wrote:
High Power wrote:What bothers me about this, is that a private citizen using lethal force against a BG is judged by the 20/20 hindsight standard but a LEO gets a break when it comes to reasonableness.
Is there a citation for that? In my experience staying reasonably current on the news is that a good shoot is a good shoot. When a private citizen claims self defense they are also judged from what was known at the time, not what came to be known later.

When I think back over the major headlines in the past few years where a bad guy winds up dead because the good guy stops a crime in progress or defends themselves against an unknown assailant the grand jury almost never indicts anybody (private citizen or law enforcement).

Now, there may be a perception that private citizens are treated differently but I think that's because the circumstances surrounding the shooting are often less clear cut than with law enforcement self defense. When private citizens are involved it's more likely that the parties know each other. Think drug deals gone bad, domestic/neighbor disputes, etc. One of the first prongs of self defense is that the person claiming it must not have had a hand in provoking it. If that point is at all in dispute then it becomes a jury question.
George Zimmerman?
Umm, let's not forget that Zimmerman's actions were initially deemed to be reasonable until POTUS sent the rabid hounds of political correctness to persecute him. Even then he was exonerated. This proves the point that due process works even for a flaming idiot.
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by schmieg »

Both LEO and private citizens should be judged by the reasonableness standard, but remember that what is reasonable for an LEO to do in certain circumstances may be different than what is reasonable for a private citizen. But, in either case, the determination should be based upon what the individual reasonably knew at the time of the incident. The "reasonable man" standard has been around for many years.
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High Power
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Re: 9th Circuit Court of Appeals Provocation Rule & SCOTUS

Post by High Power »

I probably should have also worded my question a little differently. What got me started down this trail was the 9th Circuit's "provocation" rule. If I understand the 9th Circuit's rule correctly, if a private citizen is illegally provoked by a government official or LEO, the citizen can take whatever steps are necessary to defend themselves including the use of lethal force.

That's why this case, which is to be heard on March 22nd is so important. Right now the legal experts think that the County of Los Angeles will prevail over the Mendez couple.

I would like to see the tables turned. Too many no-knock warrants have been executed on the wrong homes. I'm not LEO bashing here but some cops have egos as big as the vehicles they drive and think that they are the law. Some of them will stomp on any citizen that doesn't kiss their badge.

I admire the work that the good LEOs do and respect them for laying their life on the line but it's unfair for a citizen (who's done nothing wrong) to act like a sheep led to slaughter when a LEO(s) have gone rouge and are trying to kill the citizen.

What are everyone's thoughts on the "provocation" rule? Does anyone else have any other insight on this case?

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