Police officers burst into an apartment with guns drawn and without a warrant or notice. An unsuspecting homeowner instinctively pulls a gun off a bedside table and turns towards the intruders. The officers shoot the homeowner.
The U.S. Supreme Court soon will hear argument in a case that presents the question whether officers in these types of scenario have used excessive force in violation of the U.S. Constitution. The case before the court comes out of the Ninth Circuit, which has developed a “provocation doctrine” under which lower courts are to consider the sequence of events leading up to the use of force in determining whether force was excessive and which allows a finding of excessive force when police officers provoke the situation that in turn prompted them to use force. Other U.S. Courts of Appeals, including the Second Circuit, have held that the constitutional reasonableness of force must be assessed taking into account only the circumstances of the moment when the officers acted.
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