WASHINGTON — Supreme Court Justices heard arguments on Wednesday about what time frame courts must consider when ruling on whether law enforcement used excessive force.
In 2016, Ashtian Barnes, 24, was fatally shot by a Texas police officer after being pulled over because the rental car he was driving had unpaid tolls. During the traffic stop, Barnes turned on the car, which prompted the officer to pull out his gun. As Barnes started to drive away, the officer jumped on the door sill and then shot Barnes.
At issue in Barnes v. Felix was whether the court was allowed to just consider the two seconds before Harris County police officer Roberto Felix shot his gun or if the court had to consider the entire episode.
It took only five minutes from the moment Felix flashed his lights to get Barnes to pull over, to the time backup arrived and found a fatally wounded Barnes. It’s all visible on dashcam footage.
In eight of the 12 U.S. Circuit appellate courts, the entire five-minute encounter could be considered in a Fourth Amendment excessive force case. They use the ‘totality of circumstance’ doctrine.
However, four of the 12 appellate courts, including the 5th Circuit which heard Barnes’ case, consider only the “moment of threat,” which in this case was the two seconds right before Felix shot his gun.
The 5th Circuit Court ruled Felix did not violate Barnes’ Fourth Amendment rights. However, in his majority opinion, Judge Higginbotham recommended bringing the case to the Supreme Court “to resolve the circuit divide over the application of a doctrine deployed daily across this country.”
At the Supreme Court, a lawyer for Barnes argued it distorted the truth for the judges to look at just the two seconds before the officer shot his gun.
“This kind of legal amnesia is incompatible with precedent, conflicts with common law and defies common sense,” said Nathaniel A.G. Zelinsky, a lawyer for Barnes, in reference to the ‘moment of threat’ doctrine.
Hearing arguments in Barnes’ favor, Justice Kavanaugh asked many general questions about what an officer can and cannot reasonably do.
“Was it reasonable for the officer to jump on the side of the car?” Kavanaugh asked. “What’s an officer supposed to do at a traffic stop when someone pulls away?”
Zelinsky repeatedly answered that reasonability is considered on a case-by-case basis, and “that’s precisely what the 5th Circuit couldn’t engage in in this case” because they were restricted by the ‘moment-of threat’ doctrine.
“Looking at the ‘totality of circumstances’ is important because at least it leaves open the opportunity for accountability,” said Portia Allen-Kyle, Interim executive director of Color of Change, which filed an amicus brief in support of Barnes. She notes the long history of police violence toward Black people like Barnes. Barnes’ case was brought by his mother, Janice Hughes Barnes.
In an amicus brief supporting Felix, the National Fraternal Order of Police said, that scrutinizing police officers’ actions leading up to the ‘moment of threat’ could, “discourage proactive policing” and “limit officers’ willingness to engage in necessary interventions.”
If the Supreme Court rules in favor of Barnes, rejecting the ‘moment of threat’ doctrine, they could standardize the way circuit courts consider Fourth Amendment excessive force cases.
“Allowing people to take into consideration all of the relevant facts is more likely to lead to more just results,” said Clark Neily, Senior Vice President for legal studies at the Cato Institute which filed an amici brief in support of Barnes.
However, in defense of Felix, Charles L. McCloud argued, that courts should not “second-guess” decisions officers made in “stressful circumstances.”
The arguments in favor of Felix centered on the concept of ‘officer created danger.’ It is a legal theory that deems a reasonable use of force to be a violation of the Fourth Amendment if the officer’s actions prior to the use of force are negligent and cause danger.
McCloud argued rejecting the ‘moment of threat’ doctrine would open officers up to Fourth Amendment liability based on officer-created danger.
Justice Sonia Sotomayor reiterated that Barnes’ was not bringing up “officer created danger.”
McCloud also claimed the ‘moment of threat’ doctrine already considers the ‘totality of circumstances.’
“There is no split on the question of whether you can consider proceeding events. Every court in the country considers proceeding events,” said McCloud.
Justices Thomas, Jackson, Kagan, Gorsuch and Sotomayor repeatedly argued against this claim, citing Judge Higginbotham’s majority opinion.
The Court could remand Barnes v. Felix back to the 5th Circuit which could re-examine the case with the ‘totality of circumstance’ doctrine and potentially find Felix guilty of violating Barnes’ Fourth Amendment Rights.
“Given the rapid sequence of events and Officer Felix’s role in drawing his weapon and jumping on the running board, the totality of the circumstances merits finding that Officer Felix violated Barnes’s Fourth Amendment right to be free from excessive force,” Judge Higginbotham wrote in his majority opinion.
A ruling is expected in June 2025.
