Restore the Fourth recently filed an amicus brief with the Supreme Court in Barnes v. Felix, urging the Court to go beyond the “moment of threat doctrine” or “totality of circumstances” test and look to common law for Fourth Amendment protections against excessive police force.
The Facts
On April 28, 2016, Janice Hughes Barnes’s son, Ashtian, was pulled over for minor toll violations by officer Roberto Felix, Jr on the Harris County Tollway. Felix requested documentation, and Barnes began “digging around” in the car. Claiming he smelled marijuana, Felix questioned Barnes, who then turned off his vehicle and suggested checking the trunk for the requested documents. Barnes opened the trunk and exited the vehicle per Felix’s orders. The car’s blinker came on and started to move. Felix, with gun in hand, stepped onto the moving car and pressed his weapon against Barnes’s head. Felix held onto the car frame with his head above the roof, precluding his view of inside the vehicle, and fired two shots. Barnes’s vehicle stopped and he was pronounced dead at the scene.
The district court granted summary judgement to the defendants. They focused on the two seconds prior to the shooting when Barnes’s car began to move with Felix holding onto it. The court ruled that because Felix reasonably believed he was in danger in that moment, his use of deadly force was justified regardless of the sequence of events that led to the shooting, including jumping onto the moving vehicle. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s decision.
The Question
To determine whether Felix used excessive force, should judges focus on the moment of the shooting or generally “examine the actions of the government officials leading” up to the incident?
The distinction above can be broken down into two legal doctrinal tests – the ‘”moment of threat” (St. Hilaire v. City of Laconia, 1995) and the “totality-of-circumstances” (Cole v. Bone, 1993) doctrine.
RT4’s Argument
Rather than decide between two tests, we argue that the Court should consider a third option: the Tenth Circuit’s approach to excessive force cases, which requires courts to review both the immediate threat that officers faced when they used force and whether an officer’s own reckless conduct created the need for force.
Mahesha P. Subbaraman, chair of RT4’s Litigation Working Group, draws on common law Fourth Amendment principles to make the argument.
Based on a review of existing case law, we find that courts may manipulate either test in dispute to ignore the crucial factor on which Barnes’s case turns; whether police officers brought upon themselves the need to use lethal force. Critics of the “moment of threat” doctrine claim it “excludes evidence that helps the plaintiff show the force [used] was excessive” (Abraham v. Raso, 1999). Similarly, the totality of circumstances approach allows justices to overweight facts related to the “moment of threat” and underweight facts showing police officers’ reckless conduct that created the need to use deadly force. Therefore, since either test can be used to reach the same or similar ends, the choice is spurious.
Common law makes “necessity” a central part of evaluating the appropriateness of an officer’s use of force. To take the case at hand as an example, we argue that Felix’s conduct needlessly created a situation wherein force may be justified when he jumped onto the car’s door still. In short, he brought the danger upon himself.
Our argument has broader implications for future police abuse cases. The common law developed rules to deter police-created necessities to use lethal force. For example, knock-and-announce rules. The modern trend of wrong-house raids makes clear why courts must consider police-created necessity in excessive force cases.
In sum, “No man shall take advantage of his own wrong.”