SCOTUS rejects 5th Circuit's narrow 'moment of threat' test to evaluate officer's shooting of fleeing man
Updated: The U.S. Supreme Court unanimously ruled Thursday that a federal appeals court used a too-narrow time frame to evaluate whether a police officer’s fatal shooting of a fleeing man was reasonable under the Fourth Amendment.
The 5th U.S. Circuit Court of Appeals at New Orleans had wrongly considered only two seconds of time using its “moment of threat” test to evaluate the fatal shooting, said Justice Elena Kagan in her May 15 opinion for the high court.
The driver, Ashtian Barnes, was pulled over outside Houston in April 2016 for suspected toll violations. He opened his door but began to drive away after the officer ordered him to get out of his Toyota Corolla. The officer jumped on the door sill and fired two shots into the car as it continued to move. Barnes’ family sued for alleged excessive force in violation of the Fourth Amendment.
The 5th Circuit considered the danger to the officer at the moment of the threat that led him to use deadly force—the two seconds that the officer was clinging to a moving car. Using that test, the appeals court found no constitutional violation.
Kagan said the 5th Circuit test conflicts with the Supreme Court’s requirement that excessive force claims be considered from “the perspective of a reasonable officer at the scene.” That inquiry analyzes reasonableness under the “totality of the circumstances”—which has no time limit.
“A court deciding a use-of-force case cannot review the totality of the circumstances if it has put on chronological blinders,” Kagan wrote.
“To assess whether an officer acted reasonably in using force,” Kagan said, “a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.”
The case, Barnes v. Felix, returns to the courts below for a new evaluation.
Justice Brett Kavanaugh concurred in an opinion joined by Justice Clarence Thomas, Justice Samuel Alito and Justice Amy Coney Barrett.
Kavanaugh said he agreed that the case should be evaluated based on the totality of the circumstances. He said he wrote separately “to add a few points about the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of the stop.”
He noted that Oklahoma City bomber Timothy McVeigh was stopped for a missing license plate, leading to his arrest in the bombing. Serial killer Ted Bundy was pulled over because of a stolen-vehicle alert in Florida, leading to a scuffle and Bundy’s arrest.
Kavanaugh said an evaluation under the Fourth Amendment should consider not only the underlying traffic violation but also whether a driver’s flight presents risks to public safety.
Milbank associate Nathaniel Zelinsky argued the case, according to a May 15 press release. He was assisted by other Milbank lawyers who worked alongside co-counsel at Hogan Lovells.
Hat tip to SCOTUSblog, which included coverage and commentary on the decision as it was released.
Updated May 15 at 3:20 p.m. to add information on the associate who argued the case.
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