During oral arguments in a case involving Ashtian Barnes, a 24-year-old man who was fatally shot on the side of Texas highway by officer Roberto Felix Jr. during a traffic stop that quickly escalated, several of the court's justices signaled that they might want to send the case back to the lower courts for further review.
"It seems as though we should kick it back and let you guys fight it out," Justice Elena Kagan told the attorneys who spoke before the court. Justice Kagan's remark reflected a desire to allow lower courts to reassess the case using a broader analysis, incorporating not only the moment of the threat but also preceding events that may have influenced Felix's actions.
The case, Barnes v. Felix
, could have broad implications for civil rights litigation nationwide dealing with use of force during traffic stops. Courts have used different standards in determining what makes use of force reasonable under the Constitution.The three liberal-leaning justices appeared concerned that the "moment-of-the-threat" doctrine, which four courts of appeals endorse, might run afoul of Supreme Court precedent instructing courts to look at the broader circumstances leading up to the use of force by an officer.
The Fourth Amendment prohibits a police officer from using "unreasonable" force. In 1989, while deciding Graham v. Connor
, the high court held that, when determining whether an officer's use of force is unreasonable, courts have to consider "the totality of the circumstances," including things such as the severity of the crime at issue, whether the suspect poses an immediate threat or whether he is attempting to evade or resist an arrest.Twelve courts of appeals are currently split on how they apply the Graham ruling. Eight federal courts of appeals use the totality of circumstances approach, including by considering the officer's actions leading up to the use of force.
But four other courts of appeals — the Second, Fourth, Fifth and Eighth circuits — use a much narrower test, looking at an officer's actions only in the moment he or she is threatened and disregarding the events leading up to the threat.
At the hearing on Wednesday, several justices appeared frustrated by what they saw as an attempt by the attorney representing Felix, Charles L. McCloud of Williams & Connolly LLP, to seek the court's intervention on issues beyond the question presented, which asked solely whether the moment of the threat doctrine was sound under the Fourth Amendment.
In particular, McCloud appeared eager to convince the justices to reject the totality of circumstances approach as faulty, saying it is used in litigation to support claims about danger created by police officers during traffic stops.
"I'm very confused now," Justice Ketanji Brown Jackson told McCloud. "It seems as though the moment of the threat doctrine as it exists, and as everybody has understood it, is about evidence ... You seem to be now suggesting that it is about liability."
Justice Kagan appeared to double-down on that.
"The question presented, that we took certiorari on, is whether courts should apply the moment of the threat doctrine when evaluating an excessive force claim," Justice Kagan said. "What we did not take cert on is the question that you're raising ... the question of what weight to give the fact that, or the possibility that, the officer created the danger in the reasonableness inquiry."
It wasn't just the court's liberal justices that indicated an openness to Barnes' arguments. Justices Amy Coney Barrett and Neil Gorsuch also appeared open to remanding the case to the Fifth Circuit, and Justice Clarence Thomas also suggested that the arguments raised by McCloud were beyond the scope of the certiorari.
On April 28, 2016, Barnes was stopped on a highway in Houston by Felix due to unpaid toll violations linked to the rental car he was driving. During the stop, Felix instructed Barnes, who was unarmed, to exit the vehicle, but Barnes instead began to drive away at a low speed.
Felix jumped onto the moving car, clinging to the roof. As Barnes continued to drive, Felix fatally shot him. The officer claimed he shot Barnes because he feared for his life, as Barnes' driving allegedly placed him in danger.
The estate of Barnes, represented by his mother Janice Hughes Barnes, sued Felix and Harris County, Texas, in state court under the federal civil rights statute, arguing the officer used excessive force in violation of her son's Fourth Amendment rights. Felix claimed qualified immunity, a doctrine that shields police officers from civil suits unless their actions are found to violate the U.S. Constitution or federal law.
The case was removed to a federal district court, which found the officer's use of force was reasonable under the Fifth Circuit's doctrine. In reaching its conclusion, the district court identified the moment of the threat as the two seconds before Felix fired the first shot, but the court criticized the doctrine saying it was too narrow.
On appeal, a Fifth Circuit panel agreed with the lower court that Felix acted reasonably, calling the moment of the threat doctrine "well established." The court declined to consider whether Felix's earlier decision to jump onto the moving vehicle contributed to the dangerous situation.
"We may only ask whether officer Felix was in danger at the moment of the threat," the panel said. "Any of the officers actions leading up to the shooting are not relevant."
But in a concurring opinion, U.S. Circuit Court Judge Patrick Errol Higginbotham expressed concerns that the doctrine goes against the instructions the Supreme Court gave in the Graham case, lessening the Fourth Amendment's protection of the American public and calling on the Supreme Court to solve the circuit split.
In a certiorari petition filed on May 22, attorneys for Janice Hughes Barnes called the moment of threat doctrine "profoundly wrong," arguing that Ashtian Barnes was no threat to Felix, and there was no government interest in killing him.
Arguing on behalf of Barnes, Nathaniel Avi Gideon Zelinsky of Hogan Lovells told the justices that Justice Antonin Scalia, in his 2007 opinion in Scott v. Harris
— a case involving a man who was rendered quadriplegic after an officer rammed his police cruiser into his car during a chase, causing a crash — said that courts must consider the granular facts surrounding a use of force incident.But in Barnes' case, Zelinsky said, the Fifth Circuit didn't do that. He argued that the Fifth Circuit's approach — limiting the inquiry to the moment Felix was in danger — ignored established precedent.
"This kind of legal amnesia is incompatible with precedent, conflicts with common law and defies common sense," Zelinsky told the justices, asking the high court to reject the moment of the threat doctrine and remand the case to the lower courts.
McCloud said Felix used deadly force when, as he was clinging to the side of a Barnes' fleeing car, he believed that his life was in imminent danger.
"That conclusion should end this case," he said.
McCloud's arguments were appealing to Justice Brett Kavanaugh, who appeared skeptical of Barnes' view.
"What's an officer supposed to do when at a traffic stop and someone pulls away, just let them go?" he asked.
Zelinsky responded with various actions Felix could have taken instead of firing his gun — he could have let police monitor Barnes' movements through cameras installed along the highway or through his license plate number; gotten back into his police car and followed Barnes; or asked a different police unit to follow him.
"We're not suggesting that somebody should just get away scot-free, but it is unreasonable to use deadly force," Zelinsky said. "Officer Felix put himself in a position where he had no alternative but to shoot the driver. And that's unreasonable, and you have to look at the whole picture, not just the two seconds in which he's on the car."
Janice Hughes Barnes and the Estate of Ashtian Barnes are represented by Nathaniel Avi Gideon Zelinsky of Hogan Lovells US LLP.
Roberto Felix Jr. and Harris County, Texas, are represented by Charles Luther McCloud of Williams & Connolly LLP.
The case is Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtian Barnes, Deceased, Petitioner v. Roberto Felix Jr. et al., case number 23-1239, in the Supreme Court of the United States.
--Editing by Jay Jackson Jr.