Originally published on the Force Science Institute website. Republished here with permission.
By Lewis “Von” Kliem, MCJ, JD, LLM
The U.S. Supreme Court’s decision to hear Barnes v. Felix offers a long-awaited opportunity to clarify how officers’ pre-seizure actions are assessed in use-of-force cases. The case is pivotal, as it directly confronts the “officer-created jeopardy” theory, which invites hindsight bias and outcome-driven judgments that challenge the Fourth Amendment’s objective reasonableness standard.
Barnes v. Felix: A moment to reflect
In Barnes v. Felix, No. 22-20519 (5th Cir. 2024), Officer Roberto Felix shot and killed Ashtian Barnes during a traffic stop after Barnes attempted to flee in his vehicle. The Fifth Circuit upheld Felix’s actions, applying the “moment-of-threat” doctrine, which asserts that officers should be judged based on their immediate perception of danger at the time force was used, without considering actions taken earlier in the encounter. However, Barnes’ family argues that Felix’s pre-shooting actions — such as stepping onto the vehicle — contributed to escalating the confrontation. This case raises a fundamental question: Should officers be judged solely on the moment they used force, or should their earlier tactical decisions become part of the reasonableness inquiry?
The theory of officer-created jeopardy and its challenges
Officer-created jeopardy is an academic theory gaining traction in reform advocacy, prosecutions and civil litigation. Under this theory, if an officer’s actions “unjustifiably” or “unnecessarily” created or increased the risk of a deadly confrontation — even if the subsequent force was reasonable at the time — the officer should bear civil or criminal liability. For officers experiencing a critical incident, the difficulty lies in determining what will later be deemed unjustifiable or unnecessary. Pre-seizure tactical decisions are shaped by limited information, evolving threats, and high-pressure environments, making it nearly impossible for officers to predict all possible outcomes in the moment.
The traditional federal standard, as outlined in Graham v. Connor, relies on reasonableness without the benefit of hindsight. The question is whether an officer’s actions were reasonable, not whether better choices could have been imagined after the fact. However, the growing trend of applying officer-created jeopardy demands second-guessing, pretending that officers should have predicted the negative outcome and simply avoided escalation and violence as a matter of choice.
Criminalizing discretionary tactics: A growing concern
One of the most troubling aspects of officer-created jeopardy is the increasing effort to criminalize officers’ discretionary tactical decisions. Officers are trained to rely on their admittedly imperfect judgment in chaotic and evolving situations. Yet, this controversial theory opens the door to criminal prosecution if, in hindsight, different tactics could have arguably de-escalated the situation. This trend shifts accountability from the suspect, who should be held responsible for their violent or threatening behavior, to the officer, who is now expected to predict and mitigate the suspect’s unpredictable actions and escalating threats.
In federal civil cases, qualified immunity protects officers, shielding them from liability unless their actions violate established legal standards. Qualified immunity recognizes that officers must make difficult, split-second decisions in unpredictable situations. Unless the excessive quality of force would have been obvious to any reasonable officer — meaning beyond debate — officers are shielded from civil liability. However, state criminal prosecutions can bypass these protections, subjecting officers to liability based on jurors or judges second-guessing their tactics, even when those tactics are consistent with generally accepted police practices.
State criminal prosecutions and the role of training
While Barnes v. Felix is a federal civil case, its implications may extend to state criminal jurisdictions. Notably, many state police training organizations, through their Police Officer Standards and Training bodies (POST), emphasize Graham v. Connor and the importance of reasonableness in their use-of-force training. Officers are taught that their actions will be evaluated based on what a reasonable officer would have done under the circumstances. However, prosecutors have increasingly disregarded the Graham standard in some states, pursuing criminal charges based on hindsight assessments of whether the officer could have theoretically done more to de-escalate a situation. While these state prosecutors can lawfully ignore federal precedent, doing so raises ethical concerns and leaves officers vulnerable to unpredictable and inconsistent legal standards.
This trend has created a legal minefield for officers, where their actions are scrutinized not only for their legality at the moment but for every discretionary choice leading up to the use of force. Officers who act according to their training and federal law may still face criminal charges at the state level, judged by jurors who, with the benefit of hindsight, may fail to appreciate the complexities of real-time decision-making.
A call for consistency in standards
Without a limiting principle, the theory of officer-created jeopardy threatens to undermine the standards that have long guided use-of-force evaluations. As outlined in Graham v. Connor, the federal standard of reasonableness is essential because it recognizes the difficult, imperfect, high-pressure decisions officers must make. It allows for disagreement among reasonable people, reflecting the reality that decisions made at the moment are merely educated, but imperfect, judgments.
A key issue with officer-created jeopardy is determining which of an officer’s pre-seizure conduct should be considered in evaluating the reasonableness of their use of force. Should courts require that the officer’s actions be reckless or deliberate before factoring them into the analysis, or should any conduct that unintentionally increased the risk of a deadly confrontation be considered?
Some courts may lean toward requiring that the officer’s prior actions be reckless or intentional, imposing a higher threshold for scrutiny and limiting liability to more blatant misconduct. Others might allow even negligent actions to be examined, meaning officers could be held accountable for discretionary tactical decisions that may have unintentionally escalated a situation. Meanwhile, there are courts that reject any consideration of pre-seizure conduct, focusing solely on the moment force was used. This inconsistent treatment leaves officers vulnerable to varying interpretations of their actions based on where their cases are heard.
If officer-created jeopardy is allowed to expand unchecked, officers will face growing uncertainty about whether their conduct will be deemed lawful. This unpredictability erodes their confidence in making decisions in high-stress situations. Simply approaching a suspect, conducting a traffic stop, or attempting to arrest someone can escalate tensions. Routine interactions like confronting and inquiring about possible criminal activity may predictably increase the risk of violence, exposing officers to liability for the very thing communities expect them to do.
Human factors and decision-making under stress
One of the most significant concerns is that officer-created jeopardy analysis fails to consider the human factors that affect officers during critical incidents. Decision-making in high-stress situations often involves fast, intuitive, heuristic thinking rather than the slow, deliberate, and analytical thinking that occurs in less stressful circumstances.
Expecting officers to engage in optimal, rational decision-making in real-time disregards the perceptual and cognitive performance issues they can face under stress, including tunnel vision, auditory exclusion, and stress hypervigilance. Courts and juries, using post-event analysis, apply slow, analytical thinking, which does not reflect the reality of human performance during life-threatening events. Failing to account for these human factors may result in standards that exceed what is realistically achievable.
Limited only by imagination
The Supreme Court’s review of Barnes v. Felix presents a critical opportunity to reaffirm the long-standing legal recognition that officers are imperfect human beings, subject to the natural limitations of human performance. This understanding has traditionally shaped the reasonable officer standard that governs police conduct, ensuring officers are judged based on the realities of decision-making in high-stress, rapidly evolving situations rather than through the lens of unrealistic expectations or perfect hindsight.
Though Barnes v. Felix is a federal civil case, its implications for state criminal prosecutions could be profound. If the Court reaffirms that officers should be judged based on the moment force is used, it will provide much-needed guidance and help preserve officers’ ability to make discretionary decisions in the field without the threat of criminal prosecution based on unrealistic second-guessing. Expecting officers to predict every possible outcome of their tactical decisions — and those of their colleagues — could have a chilling effect, leading to hesitation in life-or-death situations, which would endanger both officers and their communities.
It is important to recognize that after-action reviews are vital for the ongoing improvement of law enforcement. However, such reviews must focus on enhancing training, communication, and tactics rather than imposing liability based on post-event speculation that is too often disconnected from the realities of policing. The unacceptable risk is that officers will be held criminally liable — not for their actual actions — but for what others, with the benefit of hindsight, believe they could have done differently.
About the author
Lewis “Von” Kliem, MCJ, JD, LLM, has worked as a civilian police officer, attorney, educator and author. Von is the executive editor of Force Science News and co-owner of Von Kliem Consulting, LLC, where he trains and consults on constitutional policing, use of force analysis, crisis communications and trauma-informed interviewing.
