The U. S. Supreme Court has agreed to review an appeal from the U.S. Court of Appeals for the Fifth Circuit which has the potential to alter the outcome of police use of force cases dramatically.
The case, Barnes v. Felix [1], involved a police shooting that occurred after Officer Roberto Felix, with the Harris County (Texas) Constable’s Office, stopped Ashtian Barnes for a minor traffic infraction on April 28, 2016. During the interaction, Felix warned Barnes to stop “digging around” in the front seat and smelled marijuana. Barnes shut the motor off and was told to exit the vehicle. Instead, he started the vehicle. Felix drew his firearm and ordered Barnes not to move. Barnes began to accelerate and Felix jumped onto the door sill of the vehicle while the vehicle moved forward. Felix shot two rounds into the car, fatally wounding Barnes.
Barnes’ family sued Felix and Harris County pursuant to 42 U.S.C. § 1983 (federal civil rights statute), alleging excessive force in violation of the Fourth Amendment. Both the lower court and the Fifth Circuit ruled in favor of the officer and county, explaining that, at the moment of the shooting, deadly force was objectively reasonable. The Supreme Court’s decision in this case will likely settle a significant split among the federal circuits regarding the factual scope of the constitutional threat standard in police use of force cases. Moreover, the decision can potentially have a substantial negative impact on law enforcement officers going forward.
In the Fifth Circuit Barnes decision, Judge Higginbotham described, in a concurring opinion, the split among the federal circuits regarding the factual scope of the standard used to judicially review officer-involved shootings. The judge explained that in the Fifth Circuit and three others (Second, Fourth and Eighth), the standard used is generally known as the “moment of the threat” standard.
The judge explained further: “We, and three of our sister courts, have narrowed the totality of circumstances inquiry by circumscribing the reasonableness analysis of the Fourth Amendment to the precise millisecond at which an officer deploys deadly force. ‘[Our] excessive force inquiry is confined to whether the [officer] was in danger at the moment of the threat that resulted in the [officer]'s shooting. Under this ‘moment of threat’ doctrine, courts are prohibited from looking to ‘what has transpired up until the moment of the shooting itself[;]’ instead, the sole focus is on ‘the act that led the officer to discharge his weapon.’”
The judge lamented the necessity of applying the “moment of the threat” standard in Barnes and agreed with the majority of federal circuits [2] that apply a “totality of circumstances” standard to police use of force cases. The “totality of circumstances” standard permits the majority circuit courts to consider not only the moment and degree of threat faced by the officer [and his response] but also all relevant facts that lead up to the actual shooting.
The judge explained that if the “totality of circumstances standard was applied in Barnes,” then “it is plain that the use of lethal force against this unarmed man preceded any real threat to Felix’s safety — that Barnes’ decision to flee was made before Felix stepped on the running board. His flight prompted Felix to jump on the running board and fire within two seconds. This case should have enjoyed full review of the totality of the circumstances.”
Judge Higginbotham’s analysis fails to consider the fact that the “moment of the threat” standard has its origin in the Supreme Court’s Graham v. Connor [3] police use of force landmark decision. After all, it was the Supreme Court that stated in Graham, “with respect to a claim of excessive force, the same standard of reasonableness at the moment applies.” [4] Moreover, we find in Graham additional supporting language for the “moment of threat” standard. For example, the Court stated, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” [5]
Further, the Court states, “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain and rapidly evolving.” [6] By this language, the Graham Court counsels that reviewing judges in future cases should not be dissecting frame by frame every officer-made decision and tactic leading up to a deadly shooting. Instead, the focus of the examination should be narrow/not expansive and directed toward the suspect’s life-threatening action and the officer’s response.
Barnes v. Felix will hopefully resolve the federal circuit split on this significant issue in favor of law enforcement. We can only hope that the current array of justices will carefully consider the favorable law enforcement view and analysis of its predecessor justices as articulated in Graham in reaching its decision.
References
1. Barnes v. Felix, (No. 23-1239) (Cert granted, 10/4/24); Case Below: 91 F. 4th 393 (5th Cir. 2024).
2. For a list of the majority of federal circuits and case law that adhere to the more expansive “totality of the Circumstances” standard, See, Barnes v Felix, 91 F. 4th 393 (5th Cir. 2024) (Footnote 13).
3. 490 U.S. 386 (1989).
4. Id. at 396.
5. Id.
6. Id.
