City of Tahlequah, Oklahoma, et al. v. Austin P. Bond, as Special Administrator of the Estate of Dominic F. Rollice, Deceased

Four years ago, this Court unanimously rejected the Ninth Circuit’s so-called “provocation rule,” under which a police officer’s objectively reasonable use of force to effect a seizure could nonetheless be deemed a Fourth Amendment violation if the officer engaged in some “independent constitutional violation” that “intentionally or recklessly provoked a violent response.” Cnty. of Los Angeles v. Mendez, 137 S.Ct. 1539, 1545 (2017). But the Court declined to decide whether courts may “tak[e] into account” whether “unreasonable police conduct prior to the use of force … foreseeably created the need to use it” when assessing whether a seizure was reasonable. Id. at 1547 n.*. Although most circuits have continued to answer that question with a resounding no, the Ninth and Tenth Circuits have now repeatedly held that an objectively reasonable use of force can nonetheless violate the Fourth Amendment if police “deliberately or recklessly created the situation that led to the” need to use it. App.26. In the decision below, the Tenth Circuit declared that such pre-seizure conduct was “determinative” in concluding that petitioners could be held liable for responding with lethal force when an intoxicated individual they had been asked to remove from a private residence grabbed a clawed hammer, wielded it at them, and repeatedly refused their commands to drop it. App.18. The court then held that petitioners lacked qualified immunity to boot. The questions presented are:

1. Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force.

2. Whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.