210: Supreme Court Provocation Ruling and No Whites Allowed on Campus

Chris Spangle, Creighton Harrington, Greg Lenz, Matt Wittlief, Cat Anagnos, and Lisa Crosby discuss the recent Supreme Court provocation ruling and the Evergreen State protest over whites being asked not to attend class.

Supreme Court Provocation Rule

  • In 2002 the U.S. Court of Appeals for the 9th Circuit said that the lawful use of deadly force by the police may be ruled unlawful if the police themselves:
  • “Created the need to use force” by acting in an illegal manner. “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation,” the 9th Circuit held in Billington v. Smith, the officer “may be held liable for his otherwise defensive use of deadly force.”
  • Otherwise known as the “provocation doctrine,” this legal standard has served as an important check on overreaching law enforcement tactics.
  • The Supreme Court heard oral arguments in County of Los Angeles v. Mendez in March.
  • The court was asked to rule on a Fourth Amendment civil rights action filed by two victims of a police shooting.
  • Two Los Angeles County sheriffs entered Angel Mendez’s home without a warrant, found by the trial court and Ninth Circuit to be a violation of the Fourth Amendment.
  • The Ninth Circuit, finding for Mendez and his girlfriend, both of whom were shot after Mendez reached for a BB gun, lower courts applied the provocation doctrine, holding that despite the “reasonableness” of the sheriff’s’ reaction, the officers had created (PROVOKED) the situation which caused the injury by failing to obtain a warrant.
  • The Supreme Court was asked to determine whether the provocation theory applies, as it allegedly conflicts with the court’s ruling in Graham v. Connor, and whether an incident giving rise to a reasonable use of force breaks the chain of causation.
  • Graham vs. Connor:
  • Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable seizures,” and must be judged by reference to the Fourth Amendment’s “reasonableness” standard.
  • The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.
  • The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
  • The US Supreme Court on Tuesday ruled 8-0 to strike down the “provocation rule”
  • The rule was created by the US Court of Appeals for the Ninth Circuit via a controversial ruling.
  • The “Provocation Rule” allows law enforcement officers to be held liable for an otherwise defensive use of deadly force if the officer provoked the violent encounter.
  • Justice Samuel Alito, in writing for the court, stated that officers cannot be held liable for excessive force under the Fourth Amendment because “a different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.” The Fourth Amendment prohibits “unreasonable searches and seizures.”
  • Justice Alito wrote, “That the issue with the provocation rule is that it instructs courts to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force.

That distinct violation, rather than the forceful seizure itself, may then serve as the foundation of the plaintiff’s excessive force claim. This approach mistakenly conflates distinct Fourth Amendment claims. Contrary to this approach, the objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional.”

  • The two plaintiffs had been living in a shack when they were shot by police who raided the structure—without a warrant and without knocking—while looking for a wanted parolee.Angel Mendez had a BB gun to kill rats, and he was holding it when the officers entered. Both officers opened fire, seriously wounding Mendez and his pregnant companion, a woman he later married. Mendez and his wife were awarded $4 million in damages.

    Alito noted that the provocation rule may be motivated by the notion that it is important to hold police officers liable for the foreseeable consequences of their constitutional torts.

    “However, there is no need to distort the excessive force inquiry in order to accomplish this objective,” Alito said. “To the contrary, both parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation.”

    If the plaintiffs in the case before the court can’t recover on their excessive force claim, they still might be able to recover for injuries proximately caused by the warrantless entry, Alito said.

  • According to Alito, “there is no need to dress up every Fourth Amendment claim as an excessive force claim.”Of course, if the police had not violated the Constitution, to begin with, in this case, the police would not have had the opportunity to use any sort of force at all. The indisputable fact is that Angel Mendez would still have the use of his right leg if the detectives had not disobeyed the Fourth Amendment, illegally entered his home, and shot him.

Evergreen State Protest


  • Chanting “Hey-hey, ho-ho, these racist teachers have got to go,” hundreds of students filled the third floor of The Evergreen State College’s Library building Wednesday and surrounded president George Bridges’ office.
  • Protesters at a Washington state college called for a day without white people.
  • ‘Day of Absence’: One involved a campus tradition called Day of Absence, which is based on a 1965 play by that name by Douglas Turner Ward. The play is about an imaginary Southern town in which all the black people disappear one day. The idea behind the play is that societies with deeply racist ideas in fact depend on the very people they subjugate.
  • Student activists at Evergreen State College in Olympia, Washington, are demanding the resignation of a professor, Brett Weinstein, who refused to participate in an event (Day of Absence) in which white students and staff were asked to leave campus.
  • For many years at Evergreen State, minority students and faculty members have observed a Day of Absence in which they meet off campus to discuss campus issues and how to make the college more supportive of all students. Weinstein said he’s been aware of the tradition for some time, and never objected to it. But this year, organizers said that on the Day of Absence, they wanted white people to stay off campus. Weinstein opposed this shift, and he posted a message on a campus email list in which he objected to the proposal to ask white people to stay off campus.
  • Students were particularly incensed by an email that surfaced on Twitter on May 25 between Professor Bret Weinstein and Rashida Love, director of First Peoples Multicultural Advising Services. Weinstein, who is white, allegedly condemned the “Day of Absence” event that asked white people to leave campus for the day. He called the day “an act of oppression in and of itself” and said he would visit campus in spite of the demonstration.
  • A group of protesters sent the following statement in a news release to The Olympian:
  • “What started out as anti-black comments on social media has turned into the dismissal of the rights of students and femmes of color, physical violence by police, and false sentencing of students protesting.

Black trans disabled students are actively being sought out and confronted by campus police constantly, police are refusing to explain their actions and harassment. Students will not stand for this anymore, as students of color have never felt comfortable on campus and have not been treated equally.”

Thank you for listening to all of the We Are Libertarians podcasts.

Support Our Work