The most closely watched news out of the Supreme Court on Thursday was the argument in Trump v. CASA, a case asking whether President Donald Trump has power to cancel many Americans’ citizenship. The justices appeared skeptical that Trump’s executive order on birthright citizenship is constitutional, but may hand him a temporary victory on a procedural question about whether a single trial judge may block his order nationwide.
Just minutes before that hearing began, however, the Court also handed down an important — and unanimous — decision rebuking a federal appeals court’s bizarre approach to police violence cases. That case is known as Barnes v. Felix.
Barnes arose out of what began as a routine traffic stop over “toll violations.” Shortly after Officer Roberto Felix Jr. stopped driver Ashtian Barnes in Houston, Barnes started to drive away while the officer was still standing next to his vehicle. Felix decided to jump onto the moving car, with his feet resting on its doorsill and his head over the car’s roof.
After twice shouting, “don’t fucking move” while clinging to Barnes’s car, Felix fired two shots, killing Barnes.
The ultimate question in this case is whether Felix used excessive force by blindly firing into the car while he was precariously clinging to the side of a moving vehicle. But the Supreme Court did not answer this question. Instead, it sent the case back down to the US Court of Appeals for the Fifth Circuit to reconsider the case under the proper legal rule, in a victory for Barnes’s family — albeit one that may not amount to much in the long run.
The Fifth Circuit is the most right-wing appeals court in the federal system, and it is known for handing down slapdash opinions that are later reversed by the Supreme Court. Barnes fits this pattern.
The admittedly quite vague rule courts are supposed to apply in excessive force cases against police officers requires courts to determine whether the use of force was justified from “the perspective of a reasonable officer on the scene.” This inquiry, as Justice Elena Kagan explains in the Court’s Barnes opinion, requires judges to consider the “totality of the circumstances” that led to a shooting or other use of force.
But the Fifth Circuit applies a different rule, holding that its “‘inquiry is confined to whether the officer’ was ‘in danger at the moment of the threat that resulted in [his] use of deadly force.’” This rule requires judges to disregard the events “leading up to the shooting,” and focus exclusively on the moment of the shooting itself.
In a case like Barnes, in other words, the Fifth Circuit told judges to act as if Felix magically found himself transported to the side of a moving vehicle, forced to make a split-second decision about how to extract himself from this situation without being injured or killed. The question of whether it was reasonable for Felix to jump onto the side of a moving car in the first place is irrelevant to the Fifth Circuit’s inquiry.
Kagan’s opinion holds that this was wrong. “The ‘totality of the circumstances’ inquiry into a use of force has no time limit,” she writes, noting that “earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”
The problem with the Fifth Circuit’s rule wasn’t that it was too pro-police. It was that it simply did not make sense.
As Kagan notes, a wider lens will not necessarily favor either police or people who are injured by police. “Prior events may show, for example, why a reasonable officer would have perceived otherwise ambiguous conduct of a suspect as threatening,” she writes, “or instead they may show why such an officer would have perceived the same conduct as innocuous.”
Indeed, Kagan compares this case to Plumhoff v. Rickard (2014), a harrowing case where a suspect led six police cruisers on a high-speed chase that exceeded 100 miles per hour. After the car collided with one of the cruisers and briefly came to a near stop, the driver put the car into reverse and attempted to resume his flight, but the chase ended after police shot him and he crashed into a building.
The Supreme Court held in Plumhoff that the shooting was reasonable, because the driver showed that he was “‘intent on resuming’ his getaway and, if allowed to do so, would ‘again pose a deadly threat for others.’” But, under the Fifth Circuit’s “moment of the threat” test, it’s unclear that Plumhoff would have come down the same way. Judges would only ask whether it was reasonable to shoot someone who was reversing away from a crash after colliding with a police car, without considering the high-speed chase that led up to that crash.
It’s also far from clear that the courts will ultimately determine that Felix acted unreasonably in Barnes. Notably, a total of four justices joined a concurring opinion by Justice Brett Kavanaugh, which reads like a paean to the peril faced by police during traffic stops. When a suspect flees such a stop, Kavanaugh writes, “every feasible option poses some potential danger to the officer, the driver, or the public at large—and often to all three.”
Still, Barnes wipes away a Fifth Circuit rule that all but ensured absurd results. It makes no sense to evaluate a police officer’s use of force — or, for that matter, nearly any allegedly illegal action committed by any person — by divorcing that use of force from its context.
