In Barnes v. Felix, the United States Supreme Court concluded that, in evaluating a police shooting, a rule used by the Fifth Circuit that looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot improperly narrows the requisite Fourth Amendment analysis. In rejecting this “moment-of-threat” rule, the Supreme Court expressed that to assess whether an officer acted reasonably in using force, a court must assess the totality of the relevant circumstances, including facts and events leading up to the moment of the shooting.
Background
In April 2016, Roberto Felix, Jr., a law enforcement officer patrolling a highway outside Houston, received a radio alert about a car on the road with outstanding toll violations. Felix spotted the car, a Toyota Corolla, and turned on his emergency lights to initiate a traffic stop. The driver, Ashtian Barnes, pulled over to the highway’s shoulder.
Felix went to the Corolla’s driver-side door and asked Barnes for his license and proof of insurance, but Barnes replied that he did not have his license with him, and that the car was a rental in his girlfriend’s name. As he spoke, Barnes rummaged through some papers inside the car, prompting Felix to tell him several times to stop “digging around.” Felix also commented that he smelled marijuana, and asked Barnes if there was anything in the car he should know about. Barnes responded that he might have some identification in the trunk. Felix told him to open the trunk from his seat. Barnes did so, while also turning off the ignition. The dashcam recording of the incident showed all this occurring in less than two minutes.
With his right hand resting on his holster, Felix told Barnes to get out of the car. Barnes opened the door but did not exit; instead, he turned the ignition back on. Felix unholstered his gun and, as the car began to move forward, jumped onto its doorsill. He twice shouted, “Don’t fucking move.” With no visibility into the car (because his head was above the roof), Felix fired two quick shots inside. Barnes was hit, but managed to stop the car. Felix then radioed for back-up. By the time it arrived, Barnes was dead. About five seconds elapsed between when the car started moving and when it stopped. Within that period, two seconds passed between the moment Felix stepped on the doorsill and the moment he fired his first shot.
Barnes’s mother sued Felix on her son’s behalf under 42 U. S. C. Section 1983, alleging that Felix had violated Barnes’s Fourth Amendment rights by using excessive force against him. The District Court granted summary judgment to Felix, applying the Fifth Circuit’s “moment-of-threat” rule. The Court of Appeals affirmed, explaining that it too was bound by the Circuit’s moment of threat doctrine, under which the inquiry was confined to whether the officer was in danger at the moment of the threat that resulted in his use of deadly force. Under that rule, any prior events leading up to the shooting, including actions the officer took, were not relevant. Here, the precise moment of threat was the two seconds when Felix was clinging to the moving car. Because Felix could then have reasonably believed his life in danger, the Fifth Circuit panel concluded, his decision to shoot did not violate Barnes’s constitutional rights. The United States Supreme Court granted certiorari to address whether, in resolving Fourth Amendment excessive-force claims, courts may apply the moment-of-threat rule.
Discussion
The Supreme Court explained that a claim that a law enforcement officer used excessive force during a stop or arrest is analyzed under the Fourth Amendment, which requires that the force deployed be objectively reasonable from “the perspective of a reasonable officer at the scene.” Graham v. Connor, 490 U. S. 386, 396 (1989). The inquiry into the reasonableness of police force requires analyzing the “totality of the circumstances.” County of Los Angeles v. Mendez, 581 U. S. 420, 427-428 (2017); Tennessee v. Garner, 471 U. S. 1, 9 (1985). That analysis demands “careful attention to the facts and circumstances” relating to the incident. Graham, 490 U. S., at 396. For example, the “severity of the crime” prompting the stop can carry weight in the analysis. See id.; Garner, 471 U. S., at 11. Actions the officer took during the stop, such as giving warnings or otherwise trying to control the encounter can also be relevant. See id., at 12; Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015). The stopped person’s conduct is always relevant because it indicates the nature and level of the threat he poses, either to the officer or to others. See id.; Graham, 490 U. S., at 396.
The Supreme Court stated, “Most notable here, the ‘totality of the circumstance’ inquiry into a use of force has no time limit.” The Court explained that while “the situation at the precise time of the shooting will often matter most, … earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.” In-the-moment facts cannot be hermetically sealed off from the context in which they arose. Taking account of that context may benefit either part in an excessive-force case. Prior events may show why a reasonable officer would perceive otherwise ambiguous conduct as threatening, or instead as innocuous.
The Supreme Court stated that its decision in Plumhoff v. Rickard, 572 U. S. 765 (2014) well illustrated this point. The excessive-force claim there concerned the fatal shooting of a driver at the end of a dangerous car chase lasting more than five minutes. The driver had sped away from a traffic stop on a well-used road, and tried to outrun as many as six police cruisers at speeds sometimes exceeding 100 miles per hour. Eventually, the fleeing car ran into one of the cruisers and came to a near standstill. The driver, though, still tried to escape, pumping the gas in a way that sent his wheels spinning and then putting the car into reverse. At that point, one of the officers fired several shots into the car. In a suit brought against the officer, the driver’s daughter contended that those shots were taken when the chase was “already over.” Id., at 777. The Supreme Court rejected that claim based on everything that had happened during the incident—the driver’s “outrageously reckless” behavior over the prior “five minutes,” as well as his last-second efforts to again take flight. Id., at 776. Given all of those events, the Plumhoff Court explained, a reasonable officer would have concluded that the driver was “intent on resuming” his getaway and, if allowed to do so, would “again pose a deadly threat for others.” Id., at 777. Thus, the shooting was justified “atthe moment” it occurred partly because of what had transpired in the preceding period. Id.
Here, the Supreme Court found that the moment-of-threatrule applied below prevented that sort of attention to context, and thus conflicted with the High Court’s instruction to analyze the totality of the circumstances. By limiting their view to the two seconds before the shooting, the lower courts could not consider anything preceding that final moment. So, for example, they could not consider the reasons for the stop or the earlier interactions between the suspect and officer. Because of that limit, they could not address whether the final two seconds of the encounter would look different if set within a longer timeframe. The Supreme Court explained that such a rule, which precludes consideration of prior events in assessing a police shooting, is not “reconcilable with the fact-dependent and context-sensitive approach the Supreme Court has prescribed. A court deciding a use-of-force case cannot review the totality of the circumstances if it has put on chronological blinders.”
The Supreme Court held that courts may not apply the moment-of-threat rule in resolving excessive-force claims because that rule constricts the proper Fourth Amendment inquiry into the “totality of the circumstances.” Accordingly, the Court vacated the judgment of the Court of Appeals and remanded for consideration of the reasonableness of the shooting; an analysis which must encompass all the relevant circumstances, including facts and events leading up to the shooting.
HOW THIS AFFECTS YOUR AGENCY
Agencies may note that the Supreme Court stated that it did not address the separate question about whether or how an officer’s own “creation of a dangerous situation” factors into the reasonableness analysis. This was because the Fifth Circuit Court of Appeal and the District Court never confronted that issue, and it was not the basis of the petition for certiorari. The Ninth Circuit did not follow the moment of threat doctrine prior to the decision in Felix. As such, this ruling has little practical effects on law enforcement officers in California. The test for evaluation of whether or not force used was excessive remains whether or not the force was objectively reasonable under the totality of the circumstances. Those circumstances may reflect favorably or adversely in the judgment of an officer’s use of force.
Agencies may observe that Justice Kavanaugh – joined by Justices Thomas, Alito, and Barrett – issued a concurring opinion highlighting the dangers of traffic stops for police officers, particularly when as here, the driver pulls away in the midst of the stop. The concurrence noted that even for routine traffic violations, traffic stops are “fraught with danger to police officers” Michigan v. Long, 463 U. S. 1032, 1047 (1983), and that an “inordinate risk confront[s] an officer as he approaches a person seated in an automobile.” Pennsylvania v. Mimms, 434 U. S. 106, 110 (1977) (per curiam). Considering the question of what should the officer do when a driver flees from a traffic stop, Justice Kavanaugh noted that there are no easy or risk-free answers. Every feasible option poses some potential danger to the officer, the driver, or the public at large—and often to all three. And an officer in that situation must make a split-second choice among those various dangerous options. None of the options available to the officer avoids danger to the community, and all of them require life-or-death decisions that must be made in a few seconds in highly stressful and unpredictable circumstances.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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