Breaking SCOTUS News! Barnes v. Felix and Police Created Use of Force

Dear Blue to Gold Followers:

I wanted to provide an update and analysis on the oral argument in Barnes v. Felix, a case raising an important question under the Fourth Amendment. To provide context, the case examines whether courts should apply the “moment of the threat” doctrine when evaluating excessive force claims. Specifically, the question presented is this: Should courts limit their analysis of excessive force to the moments immediately preceding the use of force, or must they evaluate the totality of the circumstances, including any relevant pre-seizure conduct by the officer?

Having listened to the oral arguments, my sense is that the Supreme Court may issue a narrow ruling vacating the Fifth Circuit’s judgment and remanding the case. This decision would likely emphasize that courts must assess the totality of the circumstances, not just the immediate moments preceding the application of deadly force.

Interestingly, Felix’s position at oral argument was that the “moment of the threat” doctrine is not a formally recognized standard, and that courts already consider the totality of the circumstances—but with an important caveat. Felix argued that courts should exclude pre-seizure conduct by officers that might be characterized as unwise or poorly executed. This nuanced position appeared to frustrate some Justices, particularly Justices Jackson and Sotomayor, who viewed it as an attempt to indirectly introduce an officer-created jeopardy standard, which is not the issue for which certiorari was granted.

Justice Kavanaugh expressed pragmatic concerns about adopting Barnes’s interpretation of the Fourth Amendment, but his concerns seemed to deviate from the narrower legal issue at hand. Meanwhile, Justices Gorsuch, Jackson, Sotomayor, Kagan, Barrett, and likely Alito appeared focused on addressing only the question presented. Justice Sotomayor acknowledged the broader relevance of officer-created jeopardy, noting that it is a significant issue causing uncertainty in the lower courts, but emphasized that this case is not the appropriate vehicle to resolve it on the merits.

Given these dynamics, I anticipate a narrow, likely unanimous ruling authored by Justice Alito. Such a decision would clarify that the “moment of the threat” doctrine is not a valid framework and that the appropriate standard is always the totality of the circumstances. However, the Court would likely make no comment on the broader issue of officer-created jeopardy. We may also see a concurrence in the judgment from Justice Sotomayor, addressing the importance of clarifying the officer-created jeopardy doctrine in a future case.

In sum, while many in law enforcement were concerned about the potential implications of this case, the oral arguments suggest that the Court will not address officer-created jeopardy at this time. Instead, the ruling will likely reaffirm a broader, contextual approach to evaluating excessive force claims.

I hope this helps bring you up to speed with this important case.

Zach Miller
Legal Instructor