Barnes v. Felix: Will SCOTUS Harmonize Consideration of Pre-Shooting Conduct?

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, APC

The Supreme Court recently granted review in Barnes v. Felix, 91 F.4th 393, 394 (5th Cir. 2024), cert. granted, No. 23-1239, 2024 WL 4394125 (U.S. October 4, 2024), a case that is likely to clarify the amount of weight given to the pre-shooting conduct of the officer and the suspect, as well as provide direction on evaluating the totality of the circumstances. The issue of appeal is framed as whether a court looks at the reasonableness of an officer’s actions only at the moment when an officer’s safety was threatened, or the totality of circumstances, including any actions officers took that may have unnecessarily increased the danger they faced.

The Fifth Circuit, and a minority of other federal circuit courts, employs the “moment of the threat” standard for reviewing deadly force, whereby “the focus of the inquiry should be on the act that led the officer to discharge his weapon.” Any of the officer’s actions leading up to the shooting are not considered relevant for the purposes of an excessive force inquiry. The petitioners in the present case argue that under the Fifth Circuit’s approach, officers can create the threat that justifies force, so long as the force was justified at the moment the weapon was fired. The appeal is predicated on the flawed assumption that an otherwise reasonable use of force cannot be justified if the officer’s conduct contributed to the threat posed by the suspect.

 The Ninth Circuit examines “the facts and circumstances” when evaluating whether the use of force was reasonable, including the “events leading up to the shooting” (Hung Lam v. City of San Jose, 869 F.3d 1077, 1087 [9th Cir. 2017]). Although the case ostensibly does not affect the Ninth Circuit, which already considers the totality of circumstances, this case is of particular importance in California, where the Legislature recently codified the definition of the “[t]otality of the circumstances’ [to] mean all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force” (Cal. Penal Code § 835a[e][3]).

Although this definition was plucked from Graham v. Connor, 490 U.S. 386 (1989) and its progeny, some civil rights attorneys have misconstrued this simple definition to resurrect the defunct “provocation theory,” which argues that a police officer may be held liable for an otherwise defensive use of deadly force if they intentionally or recklessly provoke a violent confrontation. While the Supreme Court is likely to expand the Fifth Circuit’s “moment of threat” review to include the pre-shooting conduct, this appeal also provides an opportunity to clarify that “officer-created jeopardy” is just one of the many factors to be considered and expressly reject the argument that any conduct in overcoming resistance that arguably contributed to the likelihood of confrontation, including failure to utilize de-escalation tactics, automatically negates an officer’s right of self-defense and defense of others.

Since Force Science published an article on Barnes v. Felix, many California peace officers have expressed concern that the Court may issue an opinion that supports an interpretation of A.B. 392’s totality of the circumstance definition as a provocation rule. While this concern may be overblown, this appeal presents an opportunity for the Court to confirm that the evaluation of the totality of circumstances cannot narrowly fixate on a tactical mistake to negate an officer’s self-defense justification for deadly force.

Because this case addresses whether courts should apply the “moment of the threat” doctrine when evaluating an excessive force claim under the Fourth Amendment, PORAC is filing an amicus brief to protect peace officer self-defense rights in California and nationally. We anticipate the Court clarifying the extent officers’ pre-seizure actions that should be considered in use-of-force cases and also likely examine the “officer-created jeopardy” theory. The amicus brief will urge the Court to affirm its holding in Cnty. of Los Angeles, Calif. v. Mendez, 581 U.S. 420 (2017) that the totality of the circumstances analysis cannot be miscast as a provocation rule wherein an officer is liable for an otherwise reasonable use of deadly force even where the officer’s actions intentionally or recklessly provoke a violent confrontation.

Trial Court and Fifth Circuit Holdings

Officer Felix was a traffic enforcement officer with the Harris County Constable’s Office. Officer Felix was advised of a Toyota Corolla on the tollway with outstanding toll violations. Officer Felix located the vehicle and conducted a traffic stop of the driver, Mr. Barnes. The car had been rented by Barnes’ girlfriend, and the unpaid toll fees had been incurred by her, not Barnes.

Barnes initially stopped and opened his door. Barnes stated that he did not have identification on him. Officer Felix smelled marijuana in the vehicle. Officer Felix ordered Barnes to turn off the vehicle. Barnes complied, removed the key, and placed the keys on the dashboard. Barnes then stated that his identification documents might be in the trunk of the vehicle and popped the trunk. With the trunk open, Barnes grabbed his keys and restarted the vehicle.

Noticing that Barnes had restarted the vehicle, Officer Felix stepped up onto the floorboard of the open driver’s door, drew his gun and pointed it at Barnes, ordering him not to move the vehicle. Barnes then put the car into gear and started to drive away with Officer Felix standing on the floorboard of the car. Officer Felix, fearing for his safety, shot and killed Barnes.

Attorneys for Barnes’ family argued Officer Felix’s conduct in jumping on the floorboard of the vehicle created the danger that led to his use of deadly force. They argued that if he had remained standing on the ground, then there would have been no danger to him when Barnes decided to flee, and under those circumstances, the use of deadly force to apprehend him would not have been justified. Notably, this theory affords little weight to the officer’s authority to detain a suspect and prevent their flight, as well as the suspect’s elevation of the threat to the officer by accelerating while he was standing on the floorboard.

The District Court found that Officer Felix’s actions prior to the moment of threat, including that he “jumped onto the door sill,” had “no bearing” on the ultimate use of force. The Court determined that the moment of threat occurred in the two seconds before Barnes was shot. At that time, “Felix was still hanging onto the moving vehicle and believed it would run him over,” which could have made Officer Felix “reasonably believe his life was in imminent danger.” This “moment of threat” test means that “the focus of the inquiry should be on the act that led the officer to discharge his weapon. Any of the officer’s actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.” Petitioners appealed the decision to the Fifth Circuit.

The Fifth Circuit affirmed the District Court’s judgment, holding that Officer Felix’s use of deadly force was presumptively reasonable, the force was not excessive, and no constitutional injury was found. It based its opinion on other Fifth Circuit precedent, holding “[r]egardless of what had transpired up until the shooting itself, [the suspect’s] movements gave the officer reason to believe, at that moment, that there was a threat of physical harm.” Even without considering qualified immunity, the Court affirmed granting summary judgment in favor of Officer Felix, noting the petitioner failed to demonstrate a genuine issue of material fact as to a constitutional injury. Overall, the Fifth Circuit affirmed, applying its “moment of threat” analysis.

Strikingly, Circuit Judge Patrick E. Higginbotham wrote a concurring opinion to urge the U.S. Supreme Court to revisit the “moment of threat” doctrine and resolve the Circuit split. Judge Higginbotham criticized the moment of threat analysis as an “impermissible gloss on Garner that stifles a robust examination of the Fourth Amendment’s protections” and held “the totality of the circumstances merits finding that Officer Felix violated Barnes’ Fourth Amendment right[s].” The judge stated, “[i]t is plain that the use of lethal force against this unarmed man preceded any real threat to Officer Felix’s safety” because Barnes had begun to flee before Felix stepped on the floorboard. Notwithstanding that Officer Felix could have made better tactical decisions, the judge’s reasoning strongly resembles the discredited “provocation rule” in that he equates the decision to step on the floorboard with the decision to use deadly force. This reasoning ignores the officer’s legal authority to detain Barnes. It also ignores the conduct of the suspect in both attempting to flee and endangering an officer by accelerating with the officer attached to the vehicle. Is evading a toll fine worth a human life?

Totality of the Circumstances Considerations in the Ninth Circuit

Applying Graham, the Ninth Circuit has long conducted a “totality of the circumstances” review of Fourth Amendment claims brought against deadly force applications, albeit that the U.S. Supreme Court has stepped in to prevent the distortion of this analysis into a dispositive “provocation” test. Graham held that “all claims that law enforcement officers have used excessive force-deadly or not … should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard” (Graham v. Connor, 490 U.S. 386, 395 [1989]). What matters is whether the officer’s use of force was objectively reasonable. “The operative question in excessive force cases is ‘whether the totality of the circumstances justifie[s] a particular sort of search or seizure’” (Mendez, supra, at 427–28 [quoting Graham, supra, at 8–9]). “When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.” Id.

Graham identified non-exhaustive factors to consider, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” This holistic inquiry is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and “must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain and rapidly evolving.” Id. at 396-397.

While the Fifth Circuit’s analysis may ultimately be determined to be too restrictive, the appeal appears poised to relitigate the efficacy of the provocation rule under the guise of considering the totality of the circumstances. In Mendez, the U.S. Supreme Court corrected the Ninth Circuit in holding that the totality of the circumstances analysis cannot be miscast as a provocation rule wherein an officer is liable for use of deadly force where the officer intentionally or recklessly provokes a violent confrontation. The highest court rejected the Ninth Circuit’s “two-prong test” for provocation, which required: (1) the separate constitutional violation must “creat[e] a situation which led to” the use of force, and (2) the separate constitutional violation must be committed recklessly or intentionally. Id. at 430. The Supreme Court explained the provocation rule has no basis in the Fourth Amendment and erroneously conflates multiple Fourth Amendment violation claims.

The Supreme Court criticized the provocation rule as essentially searching for a different Fourth Amendment violation during an encounter that can be used to render an otherwise reasonable use of force unreasonable. The Supreme Court held this analysis cannot be constrained to “only those distinct Fourth Amendment violations that in some sense ‘provoked’ the need to use force.” Because this rule uses one constitutional violation to manufacture an excessive use of force claim that has already been rejected under established Fourth Amendment precedent, it is an improper rule that lacks a constitutional basis. If the defendant has multiple Fourth Amendment violation claims, they should each be analyzed separately.

Petitioners’ arguments in this appeal potentially go further than the rule rejected in Mendez, as the judge advocates a de facto provocation rule that does not even require a separate Constitutional violation. Standing on the car’s floorboard may represent questionable tactics, but it is not a Fourth Amendment violation. The petitioners’ interpretation of the totality of the circumstances would reverse Mendez if adopted by the Supreme Court. Mendez criticized the “vague causal standard” that failed to incorporate the requisite proximate cause standard. Id. at 430. The Court rejected requiring “only a murky causal link” between the purported tactical error and the injuries attributed to them.           

This appeal should affirm Mendez and clarify that the totality of the circumstances review must properly focus on proximate cause. The Court should affirm that liability must be limited to circumstances where an officer’s Fourth Amendment violation itself proximately causes the harm. “Proper analysis of this proximate cause question required consideration of the ‘foreseeability or the scope of the risk created by the predicate conduct,’ and required the Court to conclude that there was ‘some direct relation between the injury asserted and the injurious conduct alleged.’” Id. at 431 (citations omitted). The moment of threat necessarily must be given heightened weight when evaluating these factors and doing so is consistent with an evaluation of the totality of the circumstances.

Totality of the Circumstances Considerations in California

Under California law, courts evaluate the totality of the circumstances in a deadly force encounter, including pre-shooting conduct of the suspect and the officer. The California Supreme Court opined that “the reasonableness of … pre-shooting conduct should not be considered in isolation, however; rather, it should be considered as part of the totality of circumstances surrounding the fatal shooting” (Hayes v. San Diego [2013] 57 Cal.4th 622, 638). The Court found “no sound reason to divide plaintiff’s cause of action artificially into a series of decisional moments … and then to permit plaintiff to litigate each decision in isolation, when each is part of a continuum of circumstances surrounding a single use of deadly force.” Id.

In 2019, California enacted AB 392, which codified these Graham principles by requiring that the officer’s decision to “use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time.” Cal. Penal Code 835a(a)(4) (emphasis added). The totality of the circumstances “includ[es] the conduct of the officer and the subject leading up to the use of deadly force.” Id. § 835a(e)(3).

The California Legislature considered and rejected the enactment of a provocation rule in the new use of force statute. The bill’s predecessor, AB 931, expressly sought to strip officers of the justification defense if their conduct is “such a departure from the expected conduct of an ordinarily prudent or careful officer under the same circumstances as to be incompatible with a proper regard for human life, and where an officer of ordinary prudence would have foreseen that the conduct would create a likelihood of death or great bodily harm.” Early versions of AB 392 included a similar provision denying a justification defense “unless there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person” (AB 392, as introduced on February 6, 2010). This language was even more expansive than the Ninth Circuit’s provocation rule. On April 10, 2019, Sacramento Deputy Julie Robertson and Attorney Kathleen Mastagni Storm testified before the California Assembly Public Safety Committee in opposition to this provision’s impairment of Constitutional self-defense rights. In response to their powerful testimony, the language was amended out of the bill.

Despite the removal of the provocation rule, some misguided, purported experts have attempted to interpret the totality of the circumstances review as a reincarnation of the provocation rule. This argument is at odds with principles of statutory construction. “Generally, the Legislature’s rejection of a specific provision which appeared in the original version of an act supports the conclusion that the act should not be construed to include the omitted provision” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal. 4th 412, 454, [2007]); see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (holding, “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.”)

Moreover, since the enactment of AB 392, California courts have continued considering “an officer’s pre-shooting conduct … as part of the totality of circumstances surrounding the use of force,” while rejecting these variants of the provocation rule (Koussaya v. City of Stockton [2020] 54 Cal.App.5th 909, 935-936). Koussaya warned “we must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” Id. The Court confirmed that under California’s new use of force standards, “[l]aw enforcement personnel have a degree of discretion as to how they choose to address a particular situation.” Id. at 936. “As long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the ‘most reasonable’ action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect, in order to avoid liability….” Id. (affirming Hayes, supra, 57 Cal.4th at p. 632.) 

Conclusion

In short, this appeal presents an opportunity for PORAC to encourage the Court to harmonize Graham’s consideration of the totality of the circumstances with Mendez’s repudiation of the provocation rule. The appeal presents an opportunity for the Court to clarify that lower courts must conduct a holistic review of the pre-shooting conduct of both the officer and the suspect in considering all factors under the totality of the circumstances review, but the primary focus should remain on the moment of threat. Pre-shooting conduct, even if unreasonable or reckless, should be but one of many factors considered, and the Court should affirm the requirement in Mendez that separate claims for constitutional violations must be analyzed separately. In so doing, the U.S. Supreme Court can also protect California peace officers from efforts to misconstrue the definition of totality of the circumstances in AB 392 as a de facto provocation rule by mirroring the analysis of Koussaya.

About the Author

David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC. David has been a PORAC LDF panel attorney for over 25 years and provided use-of-force legal analysis and representation to PORAC during Legislative negotiations and hearings over AB 931, AB 392, SB 230 and, most recently, SB 2.