Page 23 - FINAL EAST FOP BlueNote 2017 July August

Use of Force Developments: U.S. Supreme Court Issues
Unanimous Force Decision Favoring Officers
By Terry Mangum – Legal Aid Chairman
One of the foremost missions of FOP is to advocate for
enhanced legal protections for our membership. We advo-
cate through various means including seeking decisional
law that better protects our members. We strive to make
better precedent for our people. We therefore keep an eye
on legal trends and we seek improvements in case law by
supporting the most qualified candidates for judgeships.
In recent years, we have encountered increasing legal
attacks on officers where criminal defendants and others
have sought to change the law to make it easier to sue of-
ficers for alleged excessive force. It seems that we are hear-
ing our opponents every night on television lobbying for a
massive change in use of force law.
The status of use of force law is extremely important to
FOP and our cause. We must retain the body of use of force
law that we currently have. Force related disputes arise
more frequently now that we live in the IPhone era where
most all police encountered are filmed by someone. It
seems like our opponents are always wanting to make it
easier to retaliate against and sue our members.
In the area of use of force, FOP has always maintained
a common-sense position which has been accepted by the
United States and North Carolina Supreme Courts. The
FOP’s work is grounded in case law that affords officers
reasonable discretion to use force as needed in each circum-
stance. FOP remains vigilant in monitoring the case law in
force related cases.
In recent years, FOP believes that both the U.S Su-
preme Court and the North Carolina Supreme Court have
done a relatively good job in affording appropriate protec-
tion to officers in use of force cases. We wish that both
Courts were equally as supportive of the rights of officers
in employment disputes, but FOP shall continue to work
and advocate in that area for better case law support in em-
ployment matters.
The U.S. Supreme Court has just issued a rare unani-
mous use of force decision rejecting a line of cases from a
number of courts known as the “provocation” rule. This
provocation rule had become a substantial problem for of-
ficers nationwide. The central point of this provocation rule
is that if an officer did something that allegedly provoked
the subject into starting a confrontation with force, then the dence without a warrant violated the Fourth Amendment.
officer can be held liable for excessive force even if the
force was in reality reasonable.
First, we are very glad to see our Supreme Courtbeing
unanimous in a major decision in support of officers. We
www.ncfop.org
have seen the Court very divided in recent years in many
areas, and sometimes those divisions have resulted in con-
fusing case law.
The Supreme Court clarified the whole mess from the
provocation rule and explained that when a law enforce-
ment officer uses force that is judged “reasonable” based on
“circumstances relevant to that determination,” then “a dif-
ferent Fourth Amendment violation cannot transform rea-
sonable use of force into an unreasonable seizure.”
Trying to translate this into simpler English, if there is
a technical or other infraction by an officer in an encounter,
and force has to be later used, that does not mean that the
force used was excessive or unreasonable.
The background of the Mendez case is as follows. Two
deputy sheriffs entered a house where they had been told a
homeless couple lived. The entry was without a search war-
rant and without knocking or announcing their presence or
identity. Mendez and his girlfriend were inside. When he
heard someone entering, Mendez picked up a BB gun to
move it in order to stand up. The deputies saw that which
they reasonably viewed as a weapon pointed at them. The
deputies fired in defense, which struck the woman and
Mendez. The plaintiffs in this case were quite sympathetic.
The jury got carried away and awarded around four
million dollars for the excessive force claim. The Court of
Appeals upheld that award. The Supreme Court accepted
the case and reversed the damage award.
Mendez and his girlfriend pursued three distinct Fourth
Amendment claims: the failure to get a search warrant, the
failure to knock and announce, and excessive force. The
trial court awarded damages to them based on “why the
shooting took place,” noting that “were it not for the” fail-
ure to get a warrant and to knock and announce Mendez
would not have been startled or picked up his gun.
The trial court applied the “provocation rule,” which
“permits an excessive force claim … where an officer
intentionally or recklessly provokes a violent confrontation,
if the provocation is an independent Fourth Amendment vi-
olation.” The appellate court ruled that entering the resi-
Because the deputies’ warrantless entry had arguably “pro-
voked” the otherwise reasonable shooting, the appellate
court upheld the award to Plaintiffs.
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