Currently, a circuit split exists regarding the Ninth Circuit’s Provocation Rule. The deputies argue that Graham applies and that officers need to be free to make split‑second choices to respond to threats of force without stopping to replay their prior actions and evaluate whether someone might later accuse them of provoking the situation. Although this is true, some argue that officers should also be required to follow the Constitution in the first place and held liable if they cause the force to be used. The holding in Scott supports this type of analysis. While Graham allows for qualified immunity by looking to what an objectively reasonable officer would do in the situation, the Mendezes propose that Scott also be applied for a totality of the circumstances approach.
Lakosil, Natalie, "Supreme Court to Rule on Police Shooting Case: Excessive Force and Qualified Immunity" (2017). GGU Law Review Blog. 46.