Nahmod Law

The Supreme Court heard oral argument on January 22, 2025, in a potentially significant section 1983 Fourth Amendment excessive force case from the Fifth Circuit, Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024), cert granted 10-4-24 (No. 23-1239).

The Question Presented

The Court granted certiorari to deal with the following Question Presented (which I set out in its entirety):

“The Fourth Amendment prohibits a police officer from using “unreasonable” force. U.S. Constitution amend. IV. In Graham v. Connor, this Court held that reasonableness depends on “the totality of the circumstances.” 490 U.S. 386, 396 (1989)(quotation marks omitted). But four circuits–the Second, Fourth, Fifth, and Eighth–cabin Graham. Those circuits evaluate whether a Fourth Amendment violation occurred under the “moment of the threat doctrine,” which evaluates the reasonableness of an officer’s actions only in the narrow window when the officer’s safety was threatened, and not based on events that precede the moment of the threat. In contrast, eight circuits–the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits–reject the moment of the threat doctrine and follow the totality of the circumstances approach, including evaluating the officer’s actions leading up to the use of force.

In the decision below, Judge Higginbotham concurred in his own majority opinion, explaining that minority approach “lessens the Fourth Amendment’s protection of the American public” and calling on this Court “to resolve the circuit divide over the application of a doctrine deployed daily across this country.”

The question presented–which has divided twelve circuits–is:

Whether courts should apply the moment of the threat doctrine when evaluating an excessive force claim under the Fourth Amendment.”

The Facts In Barnes

n Barnes, the defendant county law enforcement officer fatally shot the plaintiff’s decedent following a lawful traffic stop. Plaintiff sued the officer and county under section 1983 alleging Fourth Amendment excessive force claims. The suit was filed in state court and then removed to federal court, where the district court granted the defendants’ motion for summary judgment on the ground that there was no constitutional injury. It rejected the plaintiff’s argument that the officer’s use of force was unreasonable because, even if the decedent attempted to flee the scene, he did not pose a threat to the officer. The district court also declared that the officer’s actions prior to the moment of threat had no bearing on the officer’s ultimate use of force.

The decedent had been stopped by the officer because the decedent was driving a car with outstanding toll violations; he was then asked for his driver’s license and proof of insurance. During the course of the encounter, the officer requested that the decedent open the trunk of his car and get out of his car; the door on the driver’s side opened; the car’s left blinker turned off and then on; the officer drew his weapon, pointed it at decedent and began shouting “don’t fucking move” as the car began moving; the officer then stepped into the car with his weapon drawn and pointed it at decedent, pushing his head hard to the right. As the car moved, the officer shot inside the car with “no visibility” as to where he was shooting. He fired a second shot, and the car came to a complete stop, with the bleeding decedent held at gunpoint by the officer. Decedent was pronounced dead at the scene.

The Fifth Circuit affirmed the district court in an opinion by Judge Higginbotham on the ground that the moment of threat occurred in the two seconds before decedent was shot: the officer was still hanging onto the moving car and believed it would run him over. As noted, Judge Higginbotham also concurred in his own opinion, arguing that the moment of the threat doctrine was an “impermissible gloss” on Graham and that the Fifth Circuit should either revisit its precedents or the Supreme Court should resolve the circuit split on this issue.

Comments

1. Barnes raises an issue of considerable significance in the section 1983 context: the choice between the moment of the threat doctrine and the totality of the circumstances approach will frequently determine whether there was a Fourth Amendment excessive force violation in the first place. This is so because all-too-often drivers stopped for relatively minor traffic-related offenses are tragically shot by officers who perhaps overreact to a threat of danger that they themselves have brought about. At the very least, this should be a factor in determining whether the officer used deadly force under a totality of the circumstances approach.

To the argument that this puts officers at undue risk in split-second decision making situations, the response is that qualified immunity is still available to officers. Even if their conduct violated the Fourth Amendment, their use of deadly force must have also violated clearly settled Fourth Amendment law at the time of the challenged conduct in order for them to be liable in damages. See generally Ch. 8 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 Ed.)(West/Westlaw).

2. As I wrote this yesterday, I had not yet read the transcript of the oral argument in Barnes. But having just done so, I have changed my prediction. I initially predicted that the Court would adopt the moment of the threat doctrine and thereby continue its pronounced pro-law enforcement approach in section 1983 Fourth Amendment cases as reflected not only in the Fourth Amendment setting itself but also in the qualified immunity setting. However, the transcript of the oral arguments shows that none of the parties supported the moment of the threat approach used by the Fifth Circuit. Instead, what is most like to result is a relatively narrow decision rejecting this approach, adopting the totality of the circumstances approach and making an officer’s conduct in bringing about the subsequent use of deadly force a factor in that determination.

3. The issue in Barnes reminds me of an analogous issue–the Ninth Circuit’s provocation rule–in the section 1983 proximate cause setting that similarly involved the use of deadly force. Recall County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), where police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant) and thus in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.

The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force.  The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?

The Court in Mendez unanimously reversed the Ninth Circuit which had applied its provocation rule in favor of the plaintiff. “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature, it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.

According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.” The Court went on to vacate the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.

I discuss Mendez at greater length in an earlier post: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/