Amicus Curiae Brief — Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtian Barnes, Deceased, Petitioner v. Roberto Felix, Jr., et al.

No. 23-1239

In the Supreme Court of the United States

__________

JANICE HUGHES BARNES, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,

DECEASED,

Petitioner,

v.

ROBERTO FELIX, JR. , et al.,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________

BRIEF OF THE CATO INSTITUTE, THE LAW

ENFORCEMENT ACTION PARTNERSHIP, AND

THE CENTER FOR POLICING EQUITY AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________

Clark M. Neily III

Counsel of Record

Matthew P. Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

June 24, 2024

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I. THE FIFTH CIRCUIT’S APPROACH

CONFLICTS WITH THE ORIGINAL

MEANING OF “UNREASONABLE

SEIZURE.” ........................................................ 3

II. FAILING TO HOLD OFFICERS

ACCOUNTABLE FOR EXCESSIVE

FORCE HARMS LAW

ENFORCEMENT BY ERODING

PUBLIC TRUST AND

UNDERMINING THE RULE OF

LAW. .................................................................. 9

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) ........... 8

Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024)

...................................................................... 3, 5, 7, 8

Brower v. County of Inyo, 489 U.S. 593 (1989) ....... 6, 8

Caldwell v. State, 41 Tex. 86 (1874)............................ 4

California v. Hodari D., 499 U.S. 621 (1991) ............. 3

Graham v. Connor, 490 U.S. 386 (1989) ..................... 8

Harris Cnty. v. Coats, 607 S.W.3d 359

(Tex. Ct. App. 14th Dist. 2020) .............................. 18

Head v. Martin, 85 Ky. 480 (1887) .................... 5, 6, 18

Holloway v. Moser, 193 N.C. 185 (1927) ............. 4, 5, 6

Holmes v. State, 5 Ga. App. 166 (1908) ................... 5, 7

Miers v. State, 34 Tex. Crim. 161 (1895)..................... 7

Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S.

658 (1978) ............................................................... 18

Reneau v. State, 70 Tenn. 720 (1879) .......................... 6

Rhode v. Denson, 776 F.2d 107 (5th Cir. 1985) ........ 18

Rios v. State, No. 14-18-00886-CR, 2021 Tex.

App. LEXIS 6212 (14th Dist. Aug. 3, 2021) .......... 18

State v. Campbell, 107 N.C. 948 (1890) ...................... 4

State v. Pugh, 101 N.C. 737 (1888) ......................... 5, 7

State v. Smith, 127 Iowa 534 (1905) ............... 4, 5, 6, 7

iii

Tennessee v. Garner, 471 U.S. 1 (1985)

.......................................................... 3, 4, 6, 8, 11, 16

Wilson v. Arkansas, 514 U.S. 927 (1995) .................... 3

Other Authorities

Adam Shaw, Barr Sounds Call to Push Back

against Anti-Cop Attitudes, Adopt ‘Zero

Tolerance’ to Resisting Police, FOX NEWS

(Feb. 27, 2020) ........................................................ 17

Aimee Ortiz, Confidence in Police Is at Record

Low, Gallup Survey Finds, N.Y. TIMES

(Aug. 12, 2020) ....................................................... 13

BISHOP ON CRIMINAL LAW ............................................ 4

Cedric L. Alexander, Ex-cop: Atatiana

Jefferson’s killing further erodes police

legitimacy, CNN (Oct. 14, 2019) ............................ 13

DATA RELEASE: GUN VIOLENCE CLEARANCE

RATES AND CASE OUTCOMES, PHILA. CITY

CONTROLLER (Jan. 15, 2022) .................................. 12

David Kirkpatrick et al., Why Many Police

Traffic Stops Turn Deadly, N.Y. TIMES (Oct.

31, 2021) ................................................................. 10

E.D. Cauchi & Scott Pham, County Sheriffs

Wield Lethal Power, Face Little

Accountability: “A Failure of Democracy,”

CBS NEWS (May 20, 2024) ..................................... 10

Eric Dexheimer et al., Want to Sue a Harris

County Constable’s Office for Violating Your

Rights? You Can’t., HOUS. CHRON. (Mar. 19,

2024) ................................................................. 17, 18

iv

Eric Dexheimer, Drivers Pay for 160

Constables to Patrol Sam Houston Tollway,

Even When There’s Little Road to Cover,

HOUS. CHRON. (Mar. 18, 2024), .............................. 12

Fred O. Smith, Abstention in the Time of

Ferguson, 131 HARV. L. REV. 2283 (2018) ............. 15

Gary Langer, Confidence in Police Practices

Drops to a New Low: POLL, ABC NEWS

(Feb. 3, 2023) .......................................................... 13

HOUSING NOT HANDCUFFS 2019: ENDING THE

CRIMINALIZATION OF HOMELESSNESS IN U.S.

CITIES, NATIONAL LAW CENTER ON

HOMELESSNESS & POVERTY (2019) ......................... 15

J. David Goodman & Al Baker, Wave of

Protests After Grand Jury Doesn’t Indict

Officer in Eric Garner Chokehold Case,

N.Y. TIMES (Dec. 3, 2014) ....................................... 15

JACK MCDEVITT, AMY FARRELL & RUSSELL

WOLFF, PROMOTING COOPERATIVE

STRATEGIES TO REDUCE RACIAL PROFILING ............ 16

Jeff Asher & Ben Horwitz, How Do the Police

Actually Spend Their Time?, N.Y. TIMES

(Nov. 8, 2021) ......................................................... 12

Julie Tate et al., Fatal Force, WASH. POST

DATABASE .................................................................. 9

Lydia Saad, Historically Low Faith in U.S.

Institutions Continues, GALLUP (July 6,

2023) ....................................................................... 13

MATTHEW A. GRAHAM ET AL., RACIAL

DISPARITIES IN USE OF FORCE AT TRAFFIC

STOPS (2024) ............................................... 10, 11, 14

v

Mike Baker et al., Three Words. 70 Cases. The

Tragic History of ‘I Can’t Breathe.’, N.Y.

TIMES (June 29, 2020) ............................................ 14

Mike Morris et al., How Did Constables

Acquire Unprecedented Power in Harris

County? Local Leaders Let Them., HOUS.

CHRON. (Mar. 19, 2024) .......................................... 12

Monica C. Bell, Police Reform and the

Dismantling of Legal Estrangement, 126

YALE L. J. 2054 (2017) ............................................ 15

Nathan DiCamillo, About 51,000 People

Injured Annually By Police, Study Shows,

NEWSWEEK (Apr. 19, 2017) ...................................... 9

Neena Satija et al., What Is a Constable, and

Why Are Harris County’s ‘Contract

Deputies’ in the News?, HOUS. CHRON. (Mar.

18, 2024), ................................................................ 12

Rich Morin et al., Behind the Badge, PEW

RSCH. CTR. (2017) ....................................... 14, 16, 17

Rick Rouan, Fact check: Police Rarely

Prosecuted for On-Duty Shootings, USA

TODAY (June 21, 2021) ........................................... 15

Sunil Dutta, I’m a Cop. If You Don’t Want to

Get Hurt, Don’t Challenge Me., WASH. POST

(Aug. 19, 2014) ....................................................... 17

TOM R. TYLER, WHY PEOPLE OBEY THE LAW

(2006) ...................................................................... 15

U.S. DEP’T OF JUST., INVESTIGATION OF THE

FERGUSON POLICE DEPARTMENT (Mar. 4,

2015) ....................................................................... 16

vi

Constitutional Provisions

U.S. CONST. amend. IV ................................................ 3

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

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engagements, media appearances, testimony, and

1 Rule 37 statement: All parties were timely notified of the filing

of this brief. No part of this brief was authored by any party’s

counsel, and no person or entity other than Amici funded its

preparation or submission.

2

support of allied efforts, LEAP reaches audiences

across a wide spectrum of affiliations and beliefs,

calling for more practical and ethical policies from a

public safety perspective.

The Center for Policing Equity (CPE) is a racial

justice non-profit that provides leaders with data,

stories, and relationships to facilitate change that’s

bold, innovative, and lasting. CPE gathers and

analyzes data on behaviors within public safety

systems and uses those data to help communities

achieve safer policing outcomes. This work is also the

basis of CPE’s National Justice Database, the nation’s

first database tracking national statistics on police

behavior. This database allows CPE to provide others

with a clearer picture of the approaches, measures,

and methods that work best in redesigning public

safety to better keep vulnerable communities safe.

SUMMARY OF ARGUMENT

The Fifth Circuit’s moment of threat test truncates

the evidence a court can use to assess the

reasonableness of an arrest in ways incompatible with

the common law. By blocking accountability for

officers who use excessive force, it also helps

undermine public confidence in law enforcement.

3

ARGUMENT

I.

THE

FIFTH

CIRCUIT’S

APPROACH

CONFLICTS

WITH

THE

ORIGINAL

MEANING

OF

“UNREASONABLE

SEIZURE.”

“A routine traffic stop has again ended in the death

of an unarmed black man, and again” the Fifth Circuit

has shielded an officer from liability.2 That court did

so due to its moment of threat test, which ahistorically

and erroneously curtails judicial inquiry into the

reasonableness of a seizure.

The Fourth Amendment protects the right of

Americans to be free from unreasonable seizures.3

That right’s scope is determined with reference to the

common law.4 Common law seizures included arrests,

defined in relevant part as the intentional “application

of physical force” to subdue the arrestee.5 This

definition of arrest includes killing a person by

shooting him,6 as Respondent Roberto Felix did to

Petitioner’s decedent Ashtian Barnes here.

Whether an arrest was reasonable at common law

depended on the totality of the circumstances—a

holistic approach that the Fifth Circuit has mistakenly

truncated. The common law considered the life of

arrestees to hold great worth. Even a “poor, friendless

2 Barnes v. Felix, 91 F.4th 393, 398 (5th Cir. 2024) (Higginbotham,

J., concurring).

3 U.S. CONST. amend. IV.

4 Wilson v. Arkansas, 514 U.S. 927, 931 (1995).

5 California v. Hodari D., 499 U.S. 621, 624 (1991).

6 Tennessee v. Garner, 471 U.S. 1, 11 (1985).

4

prisoner” could not be killed “simply to prevent an

escape.”7 This rule ensured that the “thorough and

solemn scrutiny” of the law, not an officer acting as an

“arbitrary judge,” decided their fate.8

The common law distinguished arrestees accused

of felonies from those accused of misdemeanors. An

officer could use deadly force to subdue a fleeing

accused felon.9 However, an officer could use deadly

force against an accused misdemeanant only if the

arrestee was forcefully resisting.10 Otherwise, the

officer was guilty of murder.11 The rule concerning

accused felons in flight has now been limited by this

Court; an officer can use deadly force only with

probable cause to believe that the fleeing suspected

felon poses a significant risk to another’s life or limb.12

The ancient rationales for respecting the right to

life of non-violent, low-level offenders like Mr. Barnes

still hold true.13 Historically, “[t]he dictates of

humanity” forbade killing a fleeing petty offender; the

officer had “no more right to kill him than he would

7 Caldwell v. State, 41 Tex. 86, 98 (1874).

8 State v. Smith, 127 Iowa 534, 537 (1905), cited approvingly by

Garner, 471 U.S. at 12; State v. Campbell, 107 N.C. 948, 956

(1890); accord Garner, 471 U.S. at 9–10.

9 Holloway v. Moser, 193 N.C. 185, 187 (1927), cited approvingly

by Garner, 471 U.S. at 12.

10 Id.

11 Id. (quoting 2 BISHOP ON CRIMINAL LAW §§ 662–63).

12 Garner, 471 U.S. at 3.

13 See id. at 14 (holding that a bright-line felon-misdemeanant

distinction no longer makes sense due to changing classifications

of offenses).

5

have if the offender were to lie down and refuse to

go.”14 It was better for such a person to escape “than

that his life be taken, in a case where the extreme

penalty would be a trifling fine or a few days’

imprisonment.”15 The offense for which Constable

Felix killed Mr. Barnes just barely met that low bar:

driving a car with unpaid toll violations was not even

an arrestable infraction.16 Now, as a century ago,

“[t]he law values human life too highly to give an

officer the right to proceed to the extremity of shooting

one whom he is attempting to arrest for a violation of”

a petty law.17

Further, several courts held that an arrestee’s

resistance authorized the use of deadly force only

because it made such force necessary, as assessed

based on the facts of the specific case. Officers had the

right to be “properly protected.”18 However, if an

officer used “any greater force than is reasonably and

apparently necessary for his protection,” then he

violated the law.19 Officers could “forfeit” their

14 Head v. Martin, 85 Ky. 480, 483 (1887)

15 Smith, 127 Iowa at 537; see also Holloway, 193 N.C. at 189.

16 Barnes, 91 F.4th at 395, 399 (majority op. and Higginbotham,

J., concurring).

17 Holmes v. State, 5 Ga. App. 166, 170 (1908).

18 Head, 85 Ky. at 483.

19 Id. at 485, cited approvingly by Holloway, 193 N.C. at 188; cf.

State v. Pugh, 101 N.C. 737, 739–40 (1888) (criticizing overly

technical scrutiny but allowing for liability if an officer

“arbitrarily and grossly abused the power confided to him, and

whether he did or not was an inquiry to be submitted to the jury”).

6

authority to use deadly force if they “misbehave[d]

themselves in the discharge of their duty.”20

An officer was liable for using unnecessary force

even if an arrestee committed neglect contributing to

the arrestee’s injury, because the arrestee could not

expect that an officer “would go beyond the limit of the

law” in response.21 The law impressed upon officers

“their duty to use such means to secure” people “as will

enable them to hold them in custody without resorting

to the use of fire-arms or dangerous weapons.”22 When

officers took human life that could have been

preserved through their “diligence and caution,” they

could be culpable.23

These restrictions applied even if an arrestee first

threatened an officer’s life.24 In the 1908 case Holmes

20 Holloway, 193 N.C. at 189 (citation omitted).

21 Head, 85 Ky. at 486; see also Brower v. County of Inyo, 489 U.S.

593, 595 (1989) (“Brower’s independent decision to continue the

chase can no more eliminate respondents’ responsibility for the

termination of his movement effected by the roadblock than

Garner’s independent decision to flee eliminated the Memphis

police officer’s responsibility for the termination of his movement

effected by the bullet.”).

22 Reneau v. State, 70 Tenn. 720, 722 (1879), cited approvingly by

Garner, 471 U.S. at 12.

23 Id.; see also Smith, 127 Iowa at 539–40 (holding that killing

someone engaged in the felony of helping another escape had to

be “the only reasonably apparent method” available and done “for

the honest and non-negligent purpose of preventing the felony,

and not for some other reason”).

24 Head, 85 Ky. at 485 (“If the offender puts the life of the officer

in jeopardy, the latter may se defendendo slay him; but he must

not use any greater force than is reasonably and apparently

necessary for his protection.”).

7

v. State, the Georgia Court of Appeals noted that when

an officer used “more force than is necessary,” the

officer was guilty of assault and battery.25 If the

underlying arrest was unlawful, then the arrestee

could even use deadly force to resist.26

The common law, then, looked at much more than

the Fifth Circuit deems relevant under its unduly

parsimonious moment of threat test. The common law

required a more searching inquiry into the nature of

the arrestee’s suspected infraction, consideration of

whether the officer had options other than deadly

force, and a determination of whether the amount of

force used by the officer was appropriate under the

totality of those circumstances. If the officer’s use of

force failed at any point as a matter of law, then the

seizure was unreasonable.

Thus, it would certainly have been relevant at

common law that Mr. Barnes was stopped for unpaid

toll violations related to a car his girlfriend had rented.

A common-law analysis would certainly take into

account the fact that Constable Felix chose to step onto

the rolling car when he did not have to do so. At

common law, it would also have mattered that

Constable Felix fired repeatedly into Mr. Barnes’s

car—starting before he could even see inside it.27

Finally, the common law would tasked a jury, not a

judge, with determining the significance of these

considerations.28 At common law, as under this Court’s

25 5 Ga. App. at 169.

26 Id. at 170 (citing Miers v. State, 34 Tex. Crim. 161 (1895)).

27 Barnes, 91 F.4th at 395–96 & n.2, 401.

28 Smith, 127 Iowa at 539; Pugh, 101 N.C. at 740.

8

precedents and that of the majority of federal courts,

the jury would have considered the totality of the

circumstances.29 As Graham v. Connor reiterated, it

would have weighed “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.”30 It would have given “careful attention to

the facts and circumstances.”31

But none of this happens in the Fifth Circuit. As

Judge Higginbotham wrote, the Fifth Circuit’s

moment of threat rule “starves the reasonableness

analysis by ignoring relevant facts to the expense of

life.”32 The Fifth Circuit pays this Court’s precedent

“merely performative” respect.33 It completely removes

“the gravity of the offense at issue” from

consideration.34

This Court should reject the Fifth Circuit’s

idiosyncratic and ahistorical “moment of threat test”

Barnes, 91 F.4th at 399–400 & n.13 (Higginbotham, J.,

concurring); Graham v. Connor, 490 U.S. 386, 396 (1989) (citing

Garner, 471 U.S. at 8–9); Abraham v. Raso, 183 F.3d 279, 292 (3d

Cir. 1999) (“[I]f preceding conduct could not be considered,

remand in Brower would have been pointless, for the only basis

for saying the seizure was unreasonable was the police’s preseizure planning and conduct.”).

29

30 Graham, 490 U.S. at 396.

31 Id. at 396; see also Brower, 489 U.S. at 599–600 (remanding for

further consideration of the facts leading up to a driver striking a

roadblock).

32 Barnes, 91 F.4th at 400 (Higginbotham, J., concurring).

33 Id. at 401.

34 Id.

9

and confirm the continued vitality of the common law

approach that better respects and implements core

constitutional values of due process, limited

government, and the sanctity of human life.

II. FAILING

TO

HOLD

OFFICERS

ACCOUNTABLE FOR EXCESSIVE FORCE

HARMS LAW ENFORCEMENT BY ERODING

PUBLIC TRUST AND UNDERMINING THE

RULE OF LAW.

Police misconduct undermines the public’s trust in

government, particularly when it causes unnecessary

loss of life without subsequent accountability. Though

only a small proportion of law-enforcement officers

each year are involved in a lethal confrontation, even

those few generate a shocking number of fatalities.

From 2015 to 2017, law-enforcement officers fatally

shot, on average, nearly a thousand Americans each

year.35 Tens of thousands more were wounded or

injured, to say nothing of those harmed without

obvious physical effects.36 As CBS News recently

reported, Americans are killed by law enforcement

officers throughout the country: “More people were

killed by U.S. law enforcement in 2023 than any other

year in the past decade, outpacing population growth

eightfold. But despite a focus on urban areas, fatal

See Julie Tate et al., Fatal Force, WASH. POST DATABASE,

available at https://tinyurl.com/59v6mt2k.

35

36 See Nathan DiCamillo, About 51,000 People Injured Annually

By Police, Study Shows, NEWSWEEK (Apr. 19, 2017), available at

https://tinyurl.com/38dt9x97.

10

police violence is increasingly happening in small town

America at the hands of sheriffs . . . .”37

Both civilians and officers face danger in just about

any interaction, not merely those that involve stopping

in-progress crimes, serving warrants on armed

suspects, or other higher-risk police activity. Part of

this danger is because officers are “trained to presume

danger” in virtually any encounter, and they react

accordingly in ways that increase the likelihood of

“anticipatory killings.”38 Police responses to nonemergency situations, then, impose real dangers on

individuals, communities, and police themselves. This

contention is borne out by research from the Center for

Policing Equity showing that “when police pull people

over for non-safety violations and search them for

evidence of crimes, there is a greater likelihood of

police use of force.”39 The Center concluded that

“limiting routine stops for non-safety offenses has the

potential to reduce the likelihood of police use of

force”40—thereby promoting safety for officers and

drivers alike.

37 E.D. Cauchi & Scott Pham, County Sheriffs Wield Lethal Power,

Face Little Accountability: “A Failure of Democracy,” CBS NEWS

(May 20, 2024), available at https://tinyurl.com/bdep5a9z.

38 David Kirkpatrick et al., Why Many Police Traffic Stops Turn

Deadly, N.Y. TIMES (Oct. 31, 2021), available at:

https://tinyurl.com/mr3yvm63. From 2016–2021, that manifested

in more than 400 killings of unarmed people by law enforcement

during vehicle stops. Id.

MATTHEW A. GRAHAM ET AL., RACIAL DISPARITIES IN USE OF

FORCE AT TRAFFIC STOPS

7

(2024), available

at

https://tinyurl.com/3zarcnpe.

39

40 Id.

11

A rule like the moment of threat test only heightens

the risk that an officer will kill where there is not an

objectively reasonable need to do so. Indeed, this Court

noted in 1985’s Tennessee v. Garner that “laws

permitting police officers to use deadly force to

apprehend unarmed, non-violent fleeing felony

suspects actually do not protect citizens or law

enforcement officers, do not deter crime or alleviate

problems caused by crime, and do not improve the

crime-fighting ability of law enforcement agencies.”

471 U.S. at 19 (citation omitted). Restricting the use of

deadly force to cases of necessity had not “been difficult

to apply or has led to a rash of litigation involving

inappropriate second-guessing of police officers’ splitsecond decisions.” Id. at 20. It had saved lives.

It is difficult to imagine a setting where taking a

human being’s life is less necessary than it was here.

Laws that criminalize toll fees put police in a position

where they do work well outside of the scope of their

core responsibilities. The only service Constable Felix

was providing in pulling over Mr. Barnes was

collecting revenue for the county. There is no bona fide

public-safety rationale that justifies stopping a driver

for unpaid toll fees—nor that justifies many of the

millions of other low-level traffic stops conducted

nationwide each year.41 There is, however, a clear

economic incentive for doing so: the Harris County Toll

Road Authority pays the salaries of many Houston

constables.42

41 Id. at 2.

See id. (noting that officers nationwide often have financial

incentives to conduct low-level traffic stops); Eric Dexheimer,

Drivers Pay for 160 Constables to Patrol Sam Houston Tollway,

42

12

Municipal governments’ reliance on police officers

as petty debt collectors not only poses a greater risk of

violence, it also displaces higher-social-value police

work. For instance, the Harris County budget for

constables is over eighty percent of the amount

allocated for patrol officers, even though constables

arrested just six percent of the county jail population

(and in most of Texas, do not engage in traditional

policing at all).43 Law enforcement resources should be

used efficiently, with a focus on combating actual

threats to public safety. Police officers typically spend

only a fraction of their time responding to violent

crimes like homicide, robbery, rape, and aggravated

assault.44 This has contributed to declining clearance

rates, which has predictable and negative effects on

public safety. See, e.g., DATA RELEASE: GUN VIOLENCE

CLEARANCE RATES AND CASE OUTCOMES, PHILA. CITY

CONTROLLER (Jan. 15, 2022) (describing 36.7%

clearance rate of fatal shootings and 18.9% clearance

rate of non-fatal shootings in 2020, and noting rising

homicides). But these violent crimes are precisely the

issues we train and expect police officers to focus on.

Even When There’s Little Road to Cover, HOUS. CHRON. (Mar. 18,

2024), https://tinyurl.com/27ueashm.

43 Neena Satija et al., What Is a Constable, and Why Are Harris

County’s ‘Contract Deputies’ in the News?, HOUS. CHRON. (Mar.

18, 2024), available at https://tinyurl.com/2stem2de; Mike Morris

et al., How Did Constables Acquire Unprecedented Power in

Harris County? Local Leaders Let Them., HOUS. CHRON. (Mar. 19,

2024), available at https://tinyurl.com/4f2a436m (noting that

most constables elsewhere in Texas work as courtroom guards

and process servers).

44 Jeff Asher & Ben Horwitz, How Do the Police Actually Spend

Their Time?, N.Y. TIMES (Nov.

https://tinyurl.com/2nuybezx.

8,

2021),

available

at

13

Restricting the use of police in collecting toll-road

debts enables them to prioritize combatting serious

and violent crimes over the social issues for which they

are ill-suited and ill-prepared to address.

Unnecessary killings by officers are likely to

contribute to a further loss of public confidence in

police.45 Given the ubiquity of smartphones and other

personal recording devices, citizens are documenting

these encounters more frequently than ever, making

them harder to ignore and further raising the stakes

for a judiciary that too often ensures that the conduct

depicted goes without adjudication or remedy. In the

aftermath of many high-profile police killings—most

notably, the video-recorded murder of George Floyd at

by Minnesota police in May 2020—Gallup reported

that trust in police officers had reached a 27-year

low.46 For the first time, fewer than half of Americans

reported placing confidence in the police.47 Confidence

in the police has not recovered.48

One reason for the crisis of confidence is disparities

in policing. The Center for Policing Equity found that

45 See Cedric L. Alexander, Ex-cop: Atatiana Jefferson’s killing

further erodes police legitimacy, CNN (Oct. 14, 2019), available at

https://tinyurl.com/37vxd9dy.

46 Aimee Ortiz, Confidence in Police Is at Record Low, Gallup

Survey Finds, N.Y. TIMES (Aug. 12, 2020), available at

https://tinyurl.com/4y4n9kbt.

47 See id.

See Lydia Saad, Historically Low Faith in U.S. Institutions

Continues, GALLUP (July 6, 2023), https://tinyurl.com/59ffy57y

(identifying 2023 as the low-water mark for public confidence in

police); Gary Langer, Confidence in Police Practices Drops to a

New

Low:

POLL,

ABC

NEWS

(Feb.

3,

2023),

https://tinyurl.com/32dunn2p.

48

14

in some jurisdictions, Black drivers were five times

likelier to be searched by police than white drivers.49

This was so even though in most jurisdictions, they

were no likelier—and frequently less likely—to have

contraband than white drivers.50 Disparities extend to

the use of force context: police are likelier to use force

against Black drivers “regardless of stop reason,

whether the stop involved a search, whether a search

found contraband, and whether the encounter resulted

in a warning, arrest, or citation.”51

Public concerns about policing have also been

driven by the perception that officers who commit

misconduct

are

rarely

held

accountable.52

Remarkably, a majority of police agree with this basic

perception: according to a recent survey of more than

8000 police officers, 72 percent disagreed with the

statement that “officers who consistently do a poor job

are held accountable.”53 Between 2005 and 2021,

despite thousands of police shootings, only “142

officers have been arrested for murder or

manslaughter, but only seven have been convicted of

murder. An additional 37 were convicted of lesser

49 See Graham et al., supra, at 4.

50 Id.

51 Id. at 7.

See Mike Baker et al., Three Words. 70 Cases. The Tragic

History of ‘I Can’t Breathe.’, N.Y. TIMES (June 29, 2020),

https://tinyurl.com/u6rn9hm2.

52

53 Rich Morin et al., Behind the Badge 40, PEW RSCH. CTR. (2017),

available at https://pewrsr.ch/2z2gGSn.

15

offenses, and 53 were not convicted.”54 Many more are

never indicted at all.55

Such a lack of accountability has dire social

consequences. “[W]hen a sense of procedural fairness

is illusory, this fosters a sense of second-class

citizenship, increases the likelihood people will fail to

comply with legal directives, and induces anomie in

some groups that leaves them with a sense of

statelessness.”56 Burgeoning public distrust makes

people much less likely to report crimes or cooperate

with the police as witnesses.57 HOUSING NOT

HANDCUFFS, supra, at 65. This suspicion of law

enforcement and lack of cooperation ultimately erodes

public safety, because there is a direct relationship

between trust in law enforcement and better outcomes

for police and the communities they serve.58

54 Rick Rouan, Fact check: Police Rarely Prosecuted for On-Duty

Shootings, USA TODAY (June

https://tinyurl.com/59593wcj.

21,

2021),

available

at

55 See, e.g., J. David Goodman & Al Baker, Wave of Protests After

Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case,

N.Y. TIMES (Dec. 3, 2014), available at https://nyti.ms/2z0kbZl.

56 Fred O. Smith, Abstention in the Time of Ferguson, 131 HARV.

L. REV. 2283, 2356 (2018).

57 HOUSING NOT HANDCUFFS 2019: ENDING THE CRIMINALIZATION

OF HOMELESSNESS IN U.S. CITIES, NATIONAL LAW CENTER ON

HOMELESSNESS & POVERTY 15 (2019).

58 See, e.g., TOM R. TYLER, WHY PEOPLE OBEY THE LAW 5 (2006)

(“Of particular importance is the impact of [people’s] experiences

[with legal authorities] on views of the legitimacy of legal

authorities, because legitimacy in the eyes of the public is a key

precondition to the effectiveness of authorities.”); Monica C. Bell,

Police Reform and the Dismantling of Legal Estrangement, 126

YALE L. J. 2054, 2059 (2017) (“Empirical evidence suggests that

feelings of distrust manifest themselves in a reduced likelihood

16

When properly trained and supervised, the

majority of police who follow their constitutional

obligations will benefit if the legal system reliably

holds rogue officers accountable.59 But under the

status quo, “[g]iven the potency of negative

experiences, the police cannot rely on a majority of

positive interactions to overcome the few negative

interactions. They must consistently work to overcome

the negative image that past policies and practices

have cultivated.”60 The moment of threat doctrine

unhelpfully—and unlawfully—shields the minority of

officers who bring discredit upon the entire vocation

and flout the law, and so it erodes relationships

between communities and law enforcement.

In a recent survey, a staggering 93 percent of lawenforcement officers reported increased concerns

about their safety in the wake of high-profile police

shootings.61 Responding officers also strongly

supported more transparency, and—most importantly

among African Americans to accept law enforcement officers’

directives and cooperate with their crime-fighting efforts.”)

(citations omitted); accord U.S. DEP’T OF JUST., INVESTIGATION OF

THE FERGUSON POLICE DEPARTMENT 80 (Mar. 4, 2015) (a “loss of

legitimacy makes individuals more likely to resist enforcement

efforts and less likely to cooperate with law enforcement efforts

to

prevent

and

investigate

crime.”),

available

at

https://perma.cc/XYQ8-7TB4.

59 See Garner, 471 U.S. at 10–11 (noting even in 1985 that “a

majority of police departments in this country have forbidden the

use of deadly force against nonviolent suspects.”).

60 JACK MCDEVITT, AMY FARRELL & RUSSELL WOLFF, PROMOTING

COOPERATIVE STRATEGIES TO REDUCE RACIAL PROFILING 21,

available at https://tinyurl.com/mr3jx4kt.

61 See Morin, supra, at 65.

17

for this case—did not think that problematic officers

were held accountable.62

Unfortunately, “accountability” often serves as

nothing more than a rhetorical cloak for unchecked

abuse thanks to qualified immunity. Then-U.S.

Attorney General William Barr recently told citizens

facing potentially unlawful commands from police to

meekly comply because there is “a time and place to

raise . . . concerns or complaint.”63 A Los Angeles

police officer similarly warned: “if you don’t want to get

shot, tased, pepper-sprayed, struck with a baton or

thrown to the ground, just do what I tell you”—and if

a citizen is abused anyway, “Feel free to sue the

police!”64 Words of “assurance” like these come cheap,

because rules like the moment of threat test

substantially reduce the likelihood that victims of

police misconduct will have their day in court on the

merits of their claims.

This is especially true if the offenders are

constables, who “have the least accountability of any

Texas police department.”65 The Fifth Circuit has held

that the conduct of constables does not give rise to

liability under Monell v. N.Y.C. Dep’t of Soc. Servs.,

62 See id. at 40, 68.

63 Adam Shaw, Barr Sounds Call to Push Back against Anti-Cop

Attitudes, Adopt ‘Zero Tolerance’ to Resisting Police, FOX NEWS

(Feb. 27, 2020), https://tinyurl.com/2w5sx8c3.

64 Sunil Dutta, I’m a Cop. If You Don’t Want to Get Hurt, Don’t

Challenge Me., WASH. POST (Aug. 19, 2014), available at

https://tinyurl.com/55au2zpb.

65 Eric Dexheimer et al., Want to Sue a Harris County Constable’s

Office for Violating Your Rights? You Can’t., HOUS. CHRON. (Mar.

19, 2024), https://tinyurl.com/5n938yw8 (citation omitted).

18

436 U.S. 658 (1978), because they are not county

policy-makers.66 Two justices of the Texas Court of

Appeals have said that this immunity “neuters the

protection set forth in Monell.”67 Thirty people have

died in the custody of Houston constables since 2017,

and over a hundred cases from a single precinct had to

be dismissed in 2016 due to evidence destruction, but

civil liability remains out of reach.68 Texas constables

are shielded from systematic accountability.

That makes individual accountability all the more

critical. By clarifying that constables who kill Texans

needlessly should be as liable as they would have been

at common law, the Court can take a significant step

toward restoring public confidence in police.

CONCLUSION

“Human life is too sacred” to let the Fifth Circuit’s

ahistorical moment of threat test to stand.69 This

Court should grant certiorari and reverse the

judgment below.

66 Rhode v. Denson, 776 F.2d 107 (5th Cir. 1985); but see id. at 112

(Goldberg, J., dissenting) (writing of a constable that as a

practical matter, “The bucks stop with him”).

67 Harris Cnty. v. Coats, 607 S.W.3d 359, 394 (Tex. Ct. App. 14th

Dist. 2020) (Bourliot, J., dissenting from denial of reconsideration

en banc), cited approvingly by Rios v. State, No. 14-18-00886-CR,

2021 Tex. App. LEXIS 6212, at *55 n.31 (14th Dist. Aug. 3, 2021)

(Hassan, J., dissenting from denial of en banc relief).

68 Dexheimer et al., supra.

69 Head, 85 Ky. at 483.

19

Respectfully submitted,

Clark M. Neily III

Counsel of Record

Matthew P. Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

June 24, 2024