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A makeshift memorial dedicated to Tamir Rice at the park in Cleveland where the 12-year-old boy was shot to death by a police officer in 2014.

After Creating Danger, Can Cops Use Force with Impunity?

A recent Supreme Court decision left open that possibility. That’s bad for the public, and for police.

Imagine police officers enter your home, without permission and without warning, while you’re sleeping. In a daze, you might think they were criminals breaking in. You might even seek to exercise your Second Amendment right to protect yourself and your family. But if the officers shoot you upon seeing that you’ve raised a weapon in self-defense, have they used excessive force? In other words, are police officers allowed to unreasonably provoke a response that will cause them to open fire?

This commentary was published in partnership with Slate.

A recent Supreme Court decision leaves that question unresolved. In County of Los Angeles v. Mendez, the court rejected a rule that would have held officers accountable for such conduct and sent the case back to the lower court for further consideration. In doing so, the court failed to address a recurring question, one that’s often a matter of life and death for police officers and the public.

The case involved Angel Mendez and his partner Jennifer Lynn Garcia. In the fall of 2010, Garcia was five months pregnant and they were just a step above homelessness, living in a 7-by-7-foot shack in a friend’s rat-infested backyard. Things went from bad to worse one October afternoon, when two Los Angeles County sheriff’s deputies showed up.

The deputies had come to the property to search for a man who had violated the terms of his parole. The couple was napping when, without a warrant and without announcing themselves, the deputies entered their shack. Not knowing it was the police, Mendez picked up a BB gun he kept by the bed and began to rise. The deputies opened fire, hitting Mendez 14 times and Garcia once in her back. Astonishingly, both Mendez and Garcia survived, though injuries from the shooting caused Mendez to have his right leg amputated.

The couple sued the deputies and L.A. County for violation of their Fourth Amendment rights. At the center of the case was whether the shooting was reasonable or excessive. The deputies argued that the inquiry should be limited to the moment they fired, when they were reacting to a gun pointed in their direction. Mendez and Garcia countered that the court should take into account the earlier misconduct of the deputies—the warrantless, unannounced entry of the home—that provoked Mendez to pick up the gun.

Mendez and Garcia won their case and a $4 million judgment. They won on appeal, too. Both the trial and appellate courts first looked at the isolated moment of the shooting and concluded the force was reasonable. They then held that the deputies were nonetheless liable for excessive force because they had violated the Constitution’s warrant requirement. But the Supreme Court ruled that this was “illogical,” in a decision released just weeks ago. Justice Samuel Alito wrote for the unanimous court, “once a use of force is deemed reasonable … it may not be found unreasonable by reference to some separate constitutional violation.” He didn’t address whether the force could have been deemed excessive in the first place, based on the entire sequence of events.

Mendez is not the first time the court has ruled in favor of officers whose poor choices led to preventable harm. In 2015, the court dismissed a suit against two officers who forced their way into the room of a mentally ill woman who was armed with a knife and had threatened to kill anyone who entered. Unsurprisingly, their entry provoked a confrontation, which resulted in them shooting her seven times. She survived and sued the city and county of San Francisco, but the court decided the law was unsettled and shielded the officers from liability, even though they had acted against their training in bursting into the woman’s room.

A better-known case of officer recklessness is the 2014 police killing of 12-year-old Tamir Rice. Tamir was playing in a Cleveland park when two officers, responding to calls of a man pointing a gun, drove to the scene. They pulled up less than 10 feet from Tamir, dangerously close given that they believed he was armed. One of the officers, Timothy Loehmann, jumped out of the car with his sidearm drawn. The boy reached into his waistband—probably to show the officers the gun was a toy, the prosecutor on the case said—and Loehmann shot him within two seconds of arriving. The prosecutor declined to bring charges, explaining that he could not prove “the officers acted outside the constitutional boundaries set forth by the Supreme Court.”

These cases show that the courts need to bring common sense back into this area of the law. Precedent requires that an officer’s use of force be judged based on the “totality of the circumstances,” including the suspect’s actions leading up to the moment force is used—whether the person allegedly committed a violent crime, threatened anyone, or resisted arrest. Officer conduct instigating the use of force should count, too. Police officers should not be allowed to create dangerous situations that leave them with no choice but to use deadly force. Instead, our system should discourage such reckless conduct by making officers liable when they do.

This wouldn’t compromise officer safety. Liability should apply only to officer conduct that is objectively unreasonable, not judgment calls on the margins. Moreover, many police departments are already training officers to engage people they think are armed from a covered position, communicate from a distance, and work to defuse rather than escalate situations. The idea is to keep officers out of unnecessary danger, and these measures would reduce the risk for individuals who interact with the police.

Making officers responsible for clearly reckless decisions would also go a long way toward repairing relations between law enforcement and disaffected communities—which, in turn, could improve public safety. After all, people who trust the police are more likely to cooperate with them to fight crime. There can be no trust, however, without accountability.

The Supreme Court is likely to face the issue raised in Mendez again. When it does, it should clarify that officers cannot escape liability when their own unreasonable conduct leads them to use avoidable force. This would encourage safer interactions on the street for police and the public, leaving both better off.

Chiraag Bains (@chiraagbains) is a senior fellow at Harvard Law School’s Criminal Justice Policy Program and a Leadership in Government Fellow at the Open Society Foundations. From 2010 to 2017, he investigated and prosecuted officer misconduct at the Justice Department’s Civil Rights Division.