Barnes v. Felix:  Supreme Court rejects “moment-of-threat” rule in police shootings

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           Courts must consider the totality of circumstances – not just circumstances during the “moment of threat” — in determining whether police use of deadly force is objectively reasonable under the Fourth Amendment, the U.S. Supreme Court held May 15 in Barnes v. Felix.

           Houston police officer Roberto Felix Jr. stopped Ashtian Barnes’ car for unpaid toll violations. 

           When Felix walked up to the driver-side door, Barnes said he didn’t have his driver’s license on him, and began rummaging through papers in the car.  Felix told him several times to stop “digging around.”

           Felix smelled marijuana, and asked Barnes if there was anything in the car he should know about.

           Barnes said he might have identification in the trunk, so Felix asked him to open the trunk from his seat.  Meanwhile, Barnes turned off the ignition.

           Dashcam footage showed all of that happened in about two minutes.

           Felix then told Barnes to get out of the car.  Barnes opened the door, but instead of getting out, turned the ignition back on and began to move forward.

           Felix jumped onto the car door, and twice shouted not to move.

           As the car continued to move, Felix could not see in the car because his head was above it. 

           Felix fired two shots into the car, killing Barnes.

           Barnes’ mother brought a Sec. 1983 suit against Felix for use of excessive force. 

           The District Court granted summary judgment for Felix under the “moment-of-threat rule”, which allows a court to examine only the time during the moment of threat in deciding if force was justified.  

The court examined only the “two seconds” before Felix fired his gun.  The court found that, at that moment, Felix could reasonably think he was at risk of serious harm.

           The Fifth Circuit affirmed.

Holding

           The Supreme Court reversed, in a unanimous opinion by Justice Kagan.

           “A police officer’s use of deadly force violates the Fourth Amendment when it is not ‘objectively reasonable’”, the Court said.  This requires consideration of “all the relevant circumstances, including facts and events leading up to the climactic moment.”

           The “moment-of-threat-rule” improperly narrows the requisite analysis, the Court said.

           Deciding whether use of force was objectively reasonable demands careful consideration of all facts and circumstances then known to the officer, the Court said.

           Factors to consider include the severity of the offense for which a person is stopped, the officer’s actions during the stop, and the stopped person’s conduct.

           “Most notable here, the ‘totality of circumstances’ inquiry into a use of force has no time limit”, the Court said.  “[E]arlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”

           Here, the District Court and Fifth Circuit considered only the “two seconds” before the shooting in their analysis, the Court said.

           “So, for example, they could not consider the reasons for the stop or the earlier conduct of, and interactions between, the suspect and officer”, the Court said.  “And 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.”

           “A court deciding a use-of-force case cannot review the totality of circumstances if it has put on chronological binders.”

           The Court reversed and remanded for further proceedings.

Concurring Opinion

           Justice Kavanaugh wrote a separate concurring opinion in which he emphasized the dangers to police and the public from traffic stops in which drivers try to flee.

           “[J]udges should keep in mind that it is one thing to dissect and scrutinize an officer’s actions with the ‘20/20 vision of hindsight,’ ‘in the peace of a judge’s chambers’”, Kavanaugh said.  “It is quite another to make ‘split-second’ judgments on the ground”.

           “In analyzing the reasonableness of an officer’s conduct at a traffic stop, particularly traffic stops where the driver has suddenly pulled away, courts must appreciate the extraordinary dangers and risks facing police officers and the community at large”, he said.

Justices Thomas, Alito and Barrett joined his concurrence.