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Martin A. SchwartzMartin A. Schwartz (NYLJ/Rick Kopstein)

Physical entry into the home is the chief evil the Fourth Amendment was designed to prevent. Absent consent or exigent circumstances, the police need a warrant to enter a person’s home. But what if the police intentionally make an unconstitutional entry into a home and, once inside, reasonably fearing they are in imminent danger of serious physical harm, employ deadly force? Under the circumstances the use of force was reasonable, but it may not have been necessary if the police had not conducted the unconstitutional entry. The Ninth Circuit had formulated the “provocation doctrine” for this type of situation. Under this doctrine the officer could be held liable for injuries from the use of force which was otherwise reasonable, but which was a foreseeable consequence of his intentional or reckless unconstitutional search.

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