Although I love writing, I have encountered a considerable amount of difficulty recently finding the time to do so. And given that I spend most of my working hours writing legal stuff, I find it doubly difficult to write about legal issues when I don’t have to. I mean, I’ll bet on their off hours OBGYNs don’t . . .
Well, never mind.
Anyway, despite my customary reluctance to write on legal topics, I’ve been seeing way too much chatter about the United States Supreme Court’s decision in Barnes v. Felix to just let it pass. Particularly the uproar in the law enforcement world, which seems to think the sky is falling. Which isn’t really surprising, when I think about it. The cop world is an interesting subculture, with a lot of fun idiosyncracies the outside world would probably never see. One of those is an inherent paranoia of anything that appears to subject police conduct to increased second-guessing by armchair (or judicial chair) quarterbacks. Such paranoia is not entirely unfair, especially given the events of the last 10-15 years and the negative light those events have thrown (usually unjustifiably) on law enforcement. Nevertheless, such negative treatment has originated primarily in the press, not in the courts.
Which brings us to Barnes v. Felix which, for the most part . . . does nothing. At least for law enforcement officers in most of the country. If you are a law enforcement officer in Louisiana, Mississippi, or Texas, however, you may want to take notes. Got your pen and paper? Good. Here we go.
The facts in Barnes are pretty simple. Officer Felix, a Harris County, Texas law enforcement officer, pulled over Barnes because of outstanding unpaid toll violations. (Note to self: send a check to New Orleans for all those parking tickets.) Felix ordered Barnes to exit the vehicle, but Barnes began to drive away. At that point, Felix jumped onto its doorsill of the open door and fired two shots inside. Barnes was hit, but managed to stop the car before expiring. There are additional facts, the details of which for our purposes here are unimportant. What is important is that there are, in fact, additional facts. That’s kinda’ the point of the SCOTUS opinion.
Warning: legal brief imminent!
Barnes’s mother sued Officer Felix, claiming that the shooting was excessive force in violation of her son’s rights under the Fourth Amendment to the U.S. Constitution, which prohibits unlawful search and seizure (any use of force is considered a “seizure” under the 4th Amendment). The federal District Court granted summary judgment to Felix, stating that, pursuant to a standard developed by the United States Court of Appeals for the Fifth Circuit, when an officer has used deadly force, the plaintiff (Barnes) would have to show that officer Felix’s actions were unreasonable considering the situation existing “at the moment of the threat” that sparked the fatal shooting. This standard had developed in the 5th Circuit over several years and several court cases (Fraire v. City of Arlington, 1992; Bazan ex rel. Bazan v. Hidalgo County, 2001; and most recently, Rockwell v. Brown, 2011). Under the “moment of threat” standard, when determining whether Felix’s actions were reasonable, the federal District Court felt that it could consider only “the two seconds before Felix fired his first shot,” when he was standing on the doorsill of Barnes’s moving car. The court decided that, at that precise moment, an officer could reasonably think himself “at risk of serious harm,” and that fact alone decided the case. Importantly, the federal District Court explained that it did not think it could consider “what had transpired up until” those last two seconds, including Felix’s decision to jump onto the doorsill. The District Court allowed as how although a “more robust examination” might have aided in assessing the reasonableness of the shooting, the court was “duty bound” by 5th Circuit precedent — the “moment of threat” standard — to “limit [its] focus” to the “exact moment Felix was hanging onto Barnes’s” moving car.
The Fifth Circuit Court of Appeals affirmed the District Court’s decision, explaining that it too was “[b]ound” by “this Circuit’s moment of threat doctrine.” The 5th Circuit panel agreed that, under the moment of threat standard,
the “inquiry is confined to whether the officer[ ]” was “in danger at the moment of the threat that resulted in [his] use of deadly force.” Any prior events “leading up to the shooting,” . . . were simply “not relevant.” And here . . . the “precise moment of the threat” was the “two seconds” when Felix was clinging to a moving car. Because Felix could then have reasonably believed his life in danger, the panel concluded, his decision to shoot “did not violate Barnes’s constitutional rights.”
Barnes appealed to the U.S. Supreme Court, and here’s where the kerfluffle starts.
In a unanimous opinion — again, unanimous (yes, that can still happen, though it’s rare) — the Court held that the 5th Circuit had wandered off the reservation by creating its own use of force standard. The Court reminded the 5th Circuit that the standard for use of deadly force, as every cop knows, was established in 1989 in the case of — say it with my, all you thin blue line brothers — Graham v. Connor. Under Graham, the test for whether a law enforcement officer used excessive force is whether a reasonably prudent, well-trained officer on the scene, given the totality of the circumstances, acted reasonably. A “totality of the circumstances” analysis encompasses a slew of considerations. As the Supreme Court put it:
[D]eciding whether a use of force was objectively reasonable demands “careful attention to the facts and circumstances” relating to the incident, as then known to the officer. For example, the “severity of the crime” prompting the stop can carry weight in the analysis. So too can actions the officer took during the stop, such as giving warnings or otherwise trying to control the encounter. And 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.
Most notable here, the “totality of the circumstances” inquiry into a use of force has no time limit. Of course, the situation at the precise time of the shooting will often be what matters most; it is, after all, the officer’s choice in that moment that is under review. But earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.
(I teach use of force in a local police academy, and my discussion of the totality of the circumstances addresses at least 15 different factors, some more important and definitive than others. You can be sure I will be using Barnes as a case study in the future.)
Interestingly, the judge who wrote the 5th Circuit’s majority opinion also wrote a concurring opinion in which he expressed “concern” with the moment of threat standard, stating that the rule was inconsistent with the “totality of the circumstances” test established by the Supreme Court in 1989. He even went so far as to say that had he been free to utilize the totality of the circumstances standard, he would have found Felix’s use of deadly force unreasonable.
The Supreme Court’s Point
The Supreme Court held that the moment of threat rule applied by the District Court and the 5th Circuit conflicts with the previously established totality of the circumstances standard. No court — not even the 5th Circuit — can narrow the totality-of-the-circumstances inquiry previously articulated by the Supreme Court. It is notable that the Court did not address any of the other factors that might have been considered. For instance, it did not address the relevance of Felix’s decision to step onto the doorsill of Barnes’s car (a bad decision in my opinion, but that’s a discussion for another day). Or whether the fact that Barnes was pulled for unpaid tolls would change the equation. The Court only held that the lower courts must look at circumstances greater than the encounter’s final two seconds.
We still don’t know how this is going to turn out. The Supreme Court’s decision only kicks the case back down to the 5th Circuit Courts to reconsider the case. It may ultimately wind up the same. Or it may not. At this point, we don’t know.
My Point
With all that said, however, the point I really want to make to all my brothers in blue is that this changes nothing for most of us, because, contrary to so much weeping and wailing and gnashing of teeth, the Supreme Court did not change the use of force standard. The standard is now what it has always been since 1989 for the rest of the country, from Washington to Florida, Maine to Arizona. In fact, it was the 5th Circuit which, over the course of a decade or two, decided to implement their own use of force standard, and in the Barnes opinion, the Supreme Court simply brought them back onto the reservation.
There’s a lot to examine in this case, particularly as it relates to Officer Felix’s decisions and actions. AARs are an important part of our job.
But again, that’s a topic for another time.
