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.; COUNTY OF HARRIS, TEXAS,

Respondents.

____________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

____________________

BRIEF OF THE NATIONAL URBAN

LEAGUE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

____________________

RACHEL A. CHUNG

ANNA T. PLETCHER

MELISSA C. CASSEL

Counsel of Record

ALEXANDER K. MCDONALD O’MELVENY & MYERS LLP

O’MELVENY & MYERS LLP 1625 Eye Street, NW

Two Embarcadero Center Washington, DC 20036

28th Floor

rchung@omm.com

San Francisco, CA 94111 (202) 383-5264

HANA STODDER

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF THE ARGUMENT .......................... 1

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

I. Federal Courts Have Historically Played

An Important Role In Protecting

Individuals From Excessive Force. ..................... 3

II. The Totality Of The Circumstances

Analysis Ensures A Balance Between

Individual Rights And State Interests................ 7

III.The Moment Of Threat Doctrine Impedes

Courts’ Ability To Balance Individual

Rights And State Interests. ............................... 11

A. The moment of threat doctrine limits

courts’ ability to consider relevant

aspects of deadly force encounters. .............. 11

B. The moment of threat doctrine

disincentiviezes de-escalation tactics. ......... 16

C. The moment of threat doctrine

especially harms African American

communities. ................................................ 19

CONCLUSION ........................................................ 20

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Barnes v. Felix,

91 F.4th 393 (5th Cir. 2024) ............................... 11

County of Los Angeles v. Mendez,

581 U.S. 420 (2017) ............................................. 11

Graham v. Connor,

490 U.S. 386 (1989) ............................... 2, 9, 10, 12

Health & Hosp. Corp. of Marion Cnty. v.

Talevski,

599 U.S. 166 (2023) ............................................... 3

Johnson v. Glick,

481 F.2d 1028 (2d Cir. 1973) ............................ 7, 8

Mitchum v. Foster,

407 U.S. 225 (1972) ....................................... 4, 5, 7

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) ........................................... 5, 6

Monroe v. Pape,

365 U.S. 167 (1961) ........................................... 5, 6

Saucier v. Katz,

533 U.S. 194 (2001) ............................................. 10

Scott v. Harris,

550 U.S. 372 (2007) ............................................. 10

Tennesee v. Garner,

471 U.S. 1 (1985) ..................................... 2, 8, 9, 12

Timbs v. Indiana,

586 U.S. 146 (2019) ............................................... 4

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Statutes

42 U.S.C. § 1983 ......................................................... 5

Other Authorities

Andrew DeMillo and Hannah

Grabenstein, Prosecutor: No Charges

Against Arkansas Officer in Shooting,

Associated Press (Apr. 19, 2019) ........................ 13

Barbara A. Armacost, Organizational

Culture and Police Misconduct, 72

Geo. Wash. L. Rev. 453 (2004) ............................. 5

Benjamin I. Whipple, The Fourth

Amendment and The Police Use of “Pain

Compliance” Techniques on Nonviolent

Arrestees, 28 San Diego L. Rev. 177 (1991).......... 7

Bryan Borodkin, Officer-Created Jeopardy and

Reasonableness Reform: Rebuttable

Presumption of Unreasonableness Within 42

U.S.C. § 1983 Police Use of Force Claims, 55

U. Mich. J. L. Reform 919 (2022) ....................... 17

Cong. Globe, 42d Cong., 1st Sess. App. 78

(1871) ..................................................................... 4

Frank Edwards et al., Risk of Being

Killed by Police Use of Force in the

United States by Age, Race-Ethnicity,

and Sex, 116 PNAS 16,793 (2019)...................... 20

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Gabriel L. Schwartz et al., Mapping

Fatal Police Violence Across U.S.

Metropolitan Areas: Overall Rates

and Racial/Ethnic Inequities, 20132017, PLOS ONE (June 24, 2020) ...................... 19

Gail P. Hardy, Report of the State’s Attorney

General for the Judicial District of

Hartford Concerning the Use of Deadly

Physical Force on April 20, 2019, by

Wethersfield Police Resulting in the Death

of Anthony Vega-Cruz (Mar. 3, 2020) ........... 14, 15

National Consensus Policy on Use of

Force (Jan. 2017) ................................................ 18

Note, Evelyn Michalos, Time Over Matter:

Measuring the Reasonableness of

Officer Conduct in § 1983 Claims, 89

Fordham L. Rev. 1031 (2020) ......................... 6, 19

Note, Jeremy R. Lacks, The Lone

American Dictatorship: How Court

Doctrine and Police Culture Limit

Judicial Oversight of the Police Use

of Deadly Force, 64 N.Y.U. Ann.

Surv. Am. L. 391 (2008) ................................ 4, 5, 6

Note, Ryan Hartzell C. Balisacan,

Incorporating Police Provocation into the

Fourth Amendment “Reasonableness”

Calculus: A Proposed Post-Mendez Agenda,

54 Harv. C.R.-C.L. L. Rev. 327 (2019) ................. 5

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Paul Finkelman, John Bingham and the

Background to the Fourteenth

Amendment, 36 Akron L. Rev. 671 (2003) ........... 4

Philando Castile Death: Police Footage

Released, BBC (June 21, 2017) .......................... 17

Robert Klemko, Much of America Wants

Policing to Change. But These SelfProclaimed Experts Tell Officers

They’re Doing Just Fine, Wash. Post

(Jan. 26, 2022)............................................... 16, 17

Robin Stein et al., Before the Final

Frame: When Police Missteps Create

Danger, N.Y. Times (Oct. 30, 2021) ....... 11, 12, 13

Seth Stoughton, Law Enforcement’s

“Warrior” Problem, 128 Harv. L.

Rev. F. 225 (2015) ......................................... 16, 17

Shaila Dewan and Richard A. Oppel Jr.,

In Tamir Rice Case, Many Errors by

Cleveland Police, Then a Fatal One,

N.Y. Times (Jan. 22, 2015) ................................. 14

Stephanie Bing, Lawful But Awful:

Evaluating Reasonableness in Excessive

Force Claims Against the Mentally Ill,

Emotionally Disturbed, and Intoxicated,

47 Vt. L. Rev. 271 (2022) .................................. 7, 8

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Tad Vezner, Fiery Debate Over ‘Warrior’

Training for Officer in Philando

Castile Shooting, St. Paul Pioneer

Press (July 14, 2016) .......................................... 17

Timothy Williams and Mitch Smith,

Cleveland Officer Will Not Face

Charges in Tamir Rice Shooting

Death, N.Y. Times (Dec. 28, 2015) ..................... 14

Timothy Williams, Long Taught to Use

Force, Police Warily Learn to DeEscalate, N.Y. Times (June 27, 2015) ................ 18

Tom Jackman and Dan Morse, Police

De-Escalation Training Gaining

Renewed Clout as Law Enforcement

Seeks to Reduce Killings, Wash. Post

(Oct. 27, 2020) ..................................................... 18

Urey W. Patrick & John C. Hall, In

Defense of Self & Others …: Issues,

Facts & Fallacies—The Realities of

Law Enforcement’s Use of Deadly

Force (2005) ........................................................... 6

1

INTEREST OF AMICUS CURIAE1

The National Urban League is a civil rights

organization that for 114 years has been dedicated to

helping African Americans and historically

underserved people to achieve their highest potential,

self-reliance, power, civil rights, and social parity.

Founded in 1910 in New York City, the National

Urban League works to uplift communities through

economic empowerment, equality, and social justice.

It has a network of 91 local affiliate Urban League

organizations in 37 states and the District of

Columbia, which serve more than 300 communities

and more than two million people annually. Since its

founding, the National Urban League has worked

with historically underserved communities to

promote public safety and combat inequitable

policing. Nationally, amicus’s constituents continue

to be directly harmed by inconsistencies in regional

policing practices.

SUMMARY OF THE ARGUMENT

Since Congress enacted Section 1983 in the 1870s,

federal courts have played a critical role in balancing

individual rights against state policing interests.

This is particularly true in cases involving

government searches and seizures—from brief

investigatory stops to the use of deadly force. In its

Section 1983 jurisprudence, this Court has repeatedly

emphasized that the reasonableness of an officer’s

1 No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amicus curiae and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Counsel for the parties were

timely notified of amicus curiae’s intent to file this brief.

2

conduct “is not capable of precise definition or

mechanical application,” and that the reasonableness

analysis “requires careful attention to the facts and

circumstances of each particular case.” Graham v.

Connor, 490 U.S. 386, 396 (1989); see Tennesee v.

Garner, 471 U.S. 1 (1985). The Court has therefore

instructed that lower courts must consider all

relevant facts and circumstances giving rise to an

officer’s search or seizure when determining whether

the officer’s conduct was reasonable.

The “moment of threat” doctrine adopted by the

Second, Fourth, Fifth, and Eighth Circuits ignores

that instruction and upends the balance between

individual rights and police power. Under the

“moment

of

threat”

approach,

a

court’s

reasonableness analysis is blind to the circumstances

that precede the moment an officer pulls the trigger

or otherwise uses lethal force.

For example, courts adhering to the moment of

threat doctrine ignore anything officers do to put

themselves in danger—like jumping on someone’s car

or provoking a hostile reaction. And on the other side

of the ledger, these courts also ignore evidence that

an officer attempted to de-escalate a confrontation

and used force only as a last resort.

Ignoring the full context surrounding a deadly

encounter serves neither officers nor civilians.

Nobody has the opportunity to explain how or why the

deadly encounter proceeded as it did, and everybody

is bound by the factfinder’s review of a single, isolated

moment in time.

3

The moment of threat doctrine’s limitations have

an outsized effect on racial and ethnic minority

communities, and on African Americans in particular.

African Americans are more than three times as

likely as their white peers to be killed by the police.

This community is thus particularly vulnerable to

inaccurate reasonableness determinations that stem

from a factfinder’s inability to evaluate the

circumstances leading up to an officer’s use of force.

The Court should reaffirm its adherence to a

“totality of circumstances” approach that determines

reasonableness based on all relevant facts, before and

during the use of force.

ARGUMENT

I. Federal Courts Have Historically Played An

Important Role In Protecting Individuals

From Excessive Force.

Americans affected by excessive force have always

faced obstacles to vindicating their rights. In the

wake of the Civil War, it was nearly impossible for

individuals—particularly African Americans—to

meaningfully challenge ongoing misconduct by police

officers and other state officials. At the time, state

actors at every level, often in southern states,

interfered with African Americans’ civil rights,

individual liberty, and personal safety. Violence was

rampant and well documented. For example, a 600page report published by a Senate select committee in

1871

“recounted

pervasive

state-sanctioned

lawlessness and violence against the freedman and

their White Republican allies.” Health & Hosp. Corp.

of Marion Cnty. v. Talevski, 599 U.S. 166, 176 (2023).

4

Law-enforcement officers in southern states often

turned a blind eye to brutality against African

Americans. See Mitchum v. Foster, 407 U.S. 225, 241

(1972). And some officers actively participated in that

brutality, whipping, killing, and torturing African

Americans. Paul Finkelman, John Bingham and the

Background to the Fourteenth Amendment, 36 Akron

L. Rev. 671, 689-90 (2003).

Recourse for this violence was limited. State

legislatures enacted Black Codes that perpetuated

the existing racial hierarchy and prevented African

Americans from “voting, testifying in all court cases,

or in any other way asserting and protecting their

rights as free people.” Finkelman, supra, at 690; see

also Timbs v. Indiana, 586 U.S. 146, 153 (2019). And

state courts, rather than punishing and deterring

excessive force by state actors, were commonly “used

to harass and injure individuals.” Mitchum, 407 U.S.

at 240. State judges and juries exhibited open bias

against African American plaintiffs in particular,

making it difficult for them to succeed on any claim

challenging police violence against them. Note,

Jeremy R. Lacks, The Lone American Dictatorship:

How Court Doctrine and Police Culture Limit Judicial

Oversight of the Police Use of Deadly Force, 64 N.Y.U.

Ann. Surv. Am. L. 391, 399 (2008). Indeed, this

rampant corruption meant that pursuing such claims

was not just fruitless but could lead to further

violence: “Among the most dangerous things an

injured party [could] do [was] to appeal to justice.”

Mitchum, 407 U.S. at 241 (quoting Cong. Globe, 42d

Cong., 1st Sess. App. 78 (1871)). Then as now, state

criminal prosecutions against police officers were rare

5

and brought “only in the most egregious cases.”

Barbara A. Armacost, Organizational Culture and

Police Misconduct, 72 Geo. Wash. L. Rev. 453, 464-67

(2004); see also Note, Ryan Hartzell C. Balisacan,

Incorporating Police Provocation into the Fourth

Amendment “Reasonableness” Calculus: A Proposed

Post-Mendez Agenda, 54 Harv. C.R.-C.L. L. Rev. 327,

334-35 (2019). By the early 1870s, it was apparent

that state remedies did not protect against unjustified

officer violence.

In 1871, Congress enacted Section 1983 “to

provide a federal remedy where [state remedies],

though adequate in theory, [were] not available in

practice.” Monroe v. Pape, 365 U.S. 167, 174-75

(1961), overruled on other grounds by Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694-95 (1978). Section

1983 created a federal private right of action for

individuals to sue state authorities and others acting

“under color of” state law for violations of their

constitutional rights. 42 U.S.C. § 1983. Passed in the

same year that the Senate select committee published

its report on state-sanctioned violence, the act’s clear

purpose was to “interpose the federal courts between

the States and the people, as guardians of the people’s

federal rights.” Mitchum, 407 U.S. at 242.

It would take nearly a century for Section 1983 to

live up to that purpose. For decades, federal courts

interpreted the statue’s operative language—“under

the color” of state law—to mean that police officers

could not be held liable for their conduct unless they

were acting in accordance with, rather than in

violation of, state law. Lacks, supra, at 399-401. This

narrow interpretation meant that Section 1983 was

6

rarely invoked against police officers. Id. at 399-401.

From 1871 to 1920, for example, federal courts heard

only 21 Section 1983 claims. Note, Evelyn Michalos,

Time Over Matter: Measuring the Reasonableness of

Officer Conduct in § 1983 Claims, 89 Fordham L. Rev.

1031, 1037 (2020).

In 1961, this Court expressly rejected that reading,

holding that Section 1983 could be used to impose

civil liability against police officers for their unlawful

acts. Monroe, 365 U.S. at 187. In Monroe, 13 Chicago

police officers broke into the petitioners’ home and

subjected them to an illegal search and seizure. Id. at

169. This Court held that Section 1983 properly

applied to that conduct because the statute was

specifically enacted to prevent unlawful state action.

Id. at 180-81.

The Court again expanded Section 1983’s scope in

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

There, the Court held that a plaintiff can bring a

Section 1983 claim against a municipality whose

official policy, practice, or custom resulted in a

violation of the plaintiff’s constitutional rights. Id. at

690-91.

By permitting individuals to sue a

municipality for its departments’ policies, Monell

paved the way “for direct constitutional challenges to

State laws and departmental policies relating to

police use of deadly force.” Lacks, supra, at 401

(quoting Urey W. Patrick & John C. Hall, In Defense

of Self & Others …: Issues, Facts & Fallacies—The

Realities of Law Enforcement’s Use of Deadly Force 6

(2005)). Together, Monroe and Monell gave plaintiffs

a meaningful legal avenue to challenge an officer’s use

of force—and highlight the important role federal

7

courts play in protecting individual rights from state

overreach.

II. The Totality Of The Circumstances Analysis

Ensures A Balance Between Individual

Rights And State Interests.

Following Monroe and Monell, federal courts

began to develop the standard for evaluating whether

a police officer’s use of force violates a person’s

constitutional rights. This Court eventually adopted

the “totality of the circumstances” approach, which

requires courts to consider all relevant circumstances

when assessing a violent encounter. Consistent with

Section 1983’s purpose of “interpos[ing] the federal

courts between the States and the people,” Mitchum,

407 U.S. at 242, the “totality of the circumstances”

approach requires federal courts to consider all

information bearing on the officer-civilian interaction

to ensure the best balance between individual rights

and state policing interests.

Courts initially assessed excessive-force claims

under the Due Process Clause of the Fourteenth

Amendment.

The Second Circuit’s decision in

Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973),

exemplifies courts’ reasoning at the time.

See

Stephanie Bing, Lawful But Awful: Evaluating

Reasonableness in Excessive Force Claims Against the

Mentally Ill, Emotionally Disturbed, and Intoxicated,

47 Vt. L. Rev. 271, 274 (2022); Benjamin I. Whipple,

The Fourth Amendment and The Police Use of “Pain

Compliance” Techniques on Nonviolent Arrestees, 28

San Diego L. Rev. 177, 189 (1991). Under this

framework, “undue force” violated the 14th

Amendment where “law enforcement officers

8

deprive[d] a suspect of liberty without due process of

law.” Glick, 481 F.2d at 1032. To determine whether

an officer had crossed this “constitutional line,” courts

considered several factors, including “the need for the

application of force, the relationship between the need

and the amount of force that was used, the extent of

the injury inflicted, and whether the force was applied

in a good effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of

causing harm.” Id. at 1033. Glick made clear that

assessing officers’ use of force is not an analysis “that

can be applied by a computer” but rather requires a

detailed, fact-bound inquiry of all relevant

circumstances. Id.

In Tennesee v. Garner, 471 U.S. 1 (1985), this

Court transitioned Glick’s balancing test to a Fourth

Amendment framework. Bing, supra, at 274. The

Court held that the Fourth Amendment’s objective

reasonableness standard applied to assessing

whether a police officer’s use of deadly force violated

an individual’s constitutional rights, and that

reasonableness is based on the “totality of the

circumstances” of each case. Garner, 471 U.S. at 8-9;

see also Bing, supra, at 274.

Garner emphasized that the Fourth Amendment

requires an assessment of “how [a] seizure is made,”

which in turn requires “balanc[ing] the nature and

quality of the intrustion” against the “governmental

interests alleged to justify the intrustion.” 471 U.S.

at 7-8 (quotation omitted). Reviewing a range of cases

assessing whether seizures were reasonable under

the Fourth Amendment, this Court concluded that

the central question in the reasonableness analysis is

9

“whether the totality of the circumstances justified a

particular sort of search or seizure.” Id. at 8-9.

Garner also reinforced the importance of the

“balancing process” that federal courts undertake in

excessive-force cases. Indeed, the Court declined to

adopt a categorical rule permitting deadly force “to

prevent the escape of all felony suspects, whatever the

circumstances,” id. at 11-12, instead embracing the

totality approach.

The gravity of that holistic

analysis is self-evident in excessive-force cases—the

“intrusiveness of a seizure by means of deadly force is

unmatched.” Id. at 9. And an officer’s use of deadly

force “frustrates the interest of the individual, and of

society, in judicial determination of guilt and

punishment.” Id. Those realities must inform how a

court balances “governmental interests in effective

law enforcement” in deadly force cases. Id.

Four years later, in Graham v. Connor, 490 U.S.

386 (1989), the Court reaffirmed the “totality of the

circumstances” approach. Graham held that proper

application of the reasonableness standard “requires

careful attention to the facts and circumstances of

each particular case, 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.” Id. at 396. Like

Glick, Graham recognized that this analysis “is not

capable of precise definition or mechanical

application,” but requires consideration of all relevant

facts, including the individual’s actions and the

“perspective of a reasonable officer on the scene.” Id.

(quotation omitted). Again, this Court required lower

10

courts to undertake a holistic evaluation of whether

an officer’s use of force was reasonable, to ensure

“careful balancing” of an “individual’s Fourth

Amendment interests” with the “countervailing

governmental interests at stake.” Id. (quotation

omitted).

This Court’s subsequent decisions have continued

to reinforce the totality approach. In Scott v. Harris,

550 U.S. 372 (2007), for instance, the Court again left

no doubt that the reasonableness analysis must

consider all factual circumstances of the encounter.

The Scott Court rejected the notion that there is “a

magical on/off switch that triggers rigid preconditions

whenever an officer’s actions constitute ‘deadly force.’”

Id. at 382. An “easy-to-apply legal test” that failed to

consider the facts of any particular case was improper.

Id. at 383. Rather, courts “must still slosh [their] way

through the factbound morass of ‘reasonableness.’” Id.

In this way, the totality of the circumstances

approach centers the reasonableness analysis on

achieving a just outcome rather than offering outsized

protection to either the individual or the state.

This Court has made clear, too, that a holistic

analysis protects responsible police officers.

In

Saucier v. Katz, 533 U.S. 194 (2001), this Court held

that an officer was justified in “half-dragging” a man

to prevent him from advancing toward the Vice

President during a speech, and then using a

“gratuitously violent shove” to get him inside a vehicle.

Id. at 198, 208.

There, the “circumstances …

disclose[d] substantial grounds for the officer to have

concluded he had legitimate justification under the

law for acting as he did.” Id. at 208. His actions were

11

thus permissibe under the totality of the

circumstances. Likewise, in County of Los Angeles v.

Mendez, 581 U.S. 420 (2017), the Court reiterated

that where “an officer carries out a seizure that is

reasonable” based on all surrounding circumstances,

“there is no valid excessive force claim.” Id. at 428.

Emphasizing its benefits for officers and civilians

alike, this Court has reaffirmed time and again that

a broad, totality of the circumstances analysis

ensures a balance between state interests and

individual rights.

III.

The Moment Of Threat Doctrine Impedes

Courts’ Ability To Balance Individual

Rights And State Interests.

A. The moment of threat doctrine limits

courts’ ability to consider relevant aspects of deadly force encounters.

The moment of threat doctrine does not strike the

balance the Fourth Amendment requires. This

doctrine limits the reasonableness analysis to the

“final frame”—the precise “moment” an officer

exercises deadly force.2 See Barnes v. Felix, 91 F.4th

393, 397 (5th Cir. 2024) (“[T]he excessive-force

inquiry is confined to whether officers or other

persons were in danger at the moment of the threat

that resulted in the officers’ use of deadly force.”

(internal citation omitted)). That means that courts

cannot consider what happened in the hours,

2 Robin Stein et al., Before the Final Frame: When Police Mis-

steps Create Danger, N.Y. Times (Oct. 30, 2021), https://www.nytimes.com/interactive/2021/10/30/video/police-traffic-stops-danger-video.html.

12

minutes, or even seconds leading to the violent

encounter. Such a truncated analysis ignores this

Court’s

repeated

admonitions

to

evaluate

reasonableness based on “the totality of the

circumstances.” Graham, 490 U.S. at 396 (quoting

Garner, 471 U.S. at 8-9). That is because events

immediately preceding the moment an officer pulls

the trigger nececssarily bear on the reasonableness of

that act.

Consider just a few examples of fatal police

shootings of men and boys—two African American,

and one Latino. In each case, an officer behaved in an

arguably unreasonable manner, created a dangerous

situation for himself, and used deadly force as a

result—but ultimately was not held liable.

Prosecutors in these cases determined that the

officers feared for their lives at the moment of threat.

Yet these cases exemplify how the moment of threat

doctrine can lead to a different conclusion than the

totality of the circumstances approach about

swhether the force was justified.

Bradley Blackshire. A Little Rock, Arkansas

police officer shot and killed Blackshire, an African

American man, on February 22, 2019. At the

“moment of threat,” the officer was standing in front

of Blackshire’s vehicle as Blackshire drove forward.3

Blackshire bumped the officer with his car, and the

officer began to shoot. Id. Prosecutors determined

that the officer was “confronted with the imminent

threat of deadly force” when Blackshire drove toward

3 Stein, supra, n.2.

13

him and ultimately bumped him, which justified the

officer’s decision to shoot.4

The totality of the circumstances tells a different

story. Blackshire had driven into a parking lot.5 The

officer followed Blackshire, whose vehicle had been

flagged as stolen by an automatic license plate reader,

rendering him a “high-risk” suspect. Id. Violating

protocol, the officer did not wait for backup; instead,

he drove to within feet of Blackshire’s vehicle and

parked directly in front of it. Id. The officer then

exited his cruiser, drew his gun, ran in front of

Blackshire’s vehicle, and positioned himself just

outside Blackshire’s window.

Id.

The officer

commanded Blackshire to get out of the car but never

explained why. Id. Blackshire did not comply, and

began to drive slowly to his left, toward the officer. Id.

Blackshire bumped the officer, who began to shoot

while simultaneously stepping out of the path of the

moving vehicle. Id. Still shooting, the officer stepped

back into the path of the vehicle, which was still

moving, jumped on its hood, and fired multiple

additional rounds into the windshield, killing

Blackshire. Id.

Tamir Rice. In what became national news, a

Cleveland, Ohio police officer shot and killed Rice—

an African American boy, just 12 years old—on

November 22, 2014. At the “moment of threat,” the

officer was within feet of Rice, who the officer thought

4 Andrew

DeMillo and Hannah Grabenstein, Prosecutor: No

Charges Against Arkansas Officer in Shooting, Associated Press

(Apr.

19,

2019),

http://apnews.com/general-news9ee7546d004f47018f521030ad7dce95.

5 Stein, supra, n.2.

14

was armed. Rice reached into his waistband, and the

officer shot him. Prosecutors determined that the

officer “had a reason to fear for his life” given his

proximity to a potentially armed suspect who was

reaching into his waistband.6

Again, the totality of the circumstances paints a

different picture. The officer and his partner were

patrolling near a park.7 Dispatch sent out a “Code

1”—a high-urgency situation. Id. The officer and his

partner sped directly into the park. Id. They pulled

up to within feet of Rice, which “made it difficult to

take cover, or to use verbal persuasion or other tactics

suggested by the department’s use-of-force policy.”

Id. The officer opened his door and shot Rice within

two seconds of arriving on scene—“raising doubts that

he could have warned the boy ... to raise his hands, as

the police later claimed.” Id.

Anthoney Vega Cruz. A police officer shot and

killed Vega Cruz, a Latino man, on April 20, 2019, in

Wethersfield, Connecticut.

At the “moment of

threat,” the officer was standing in front of Vega

Cruz’s vehicle as Vega Cruz drove forward. 8 The

6 Timothy Williams and Mitch Smith, Cleveland Officer Will Not

Face Charges in Tamir Rice Shooting Death, N.Y. Times (Dec.

28, 2015), http://www.nytimes.com/2015/12/29/us/tamir-rice-police-shootiing-cleveland.html.

7 Shaila Dewan and Richard A. Oppel Jr., In Tamir Rice Case,

Many Errors by Cleveland Police, Then a Fatal One, N.Y. Times

(Jan. 22, 2015), http://www.nytimes.com/2015/01/23/us/in-tamirrice-shooting-in-cleveland-many-errors-by-police-then-a-fatalone.html.

8 Gail P. Hardy, Report of the State’s Attorney General for the Judicial District of Hartford Concerning the Use of Deadly Physical

Force on April 20, 2019, by Wethersfield Police Resulting in the

15

officer “feared for [his] life and knew that [he] had to

stop the operator from running [him] over …” Id. So

the officer shot Vega Cruz through the windshield.

Prosecutors determined that the officer reasonably

feared for his life in that moment, and justifiably used

deadly force as a result. Id.

Here, too, the totality of the circumstances tells a

different story. The officer’s partner had pulled Vega

Cruz over for having heavily tinted windows, and

summoned the officer for backup. Id. The partner

then exited his cruiser and walked towards Vega

Cruz. Id. As the partner approached, Vega Cruz fled,

and the officer and his partner pursued Vega Cruz in

their respective cruisers. Id. Vega Cruz eventually

spun out, and the officer’s cruiser collided with Vega

Cruz’s car head-on. Id. The officer exited his cruiser,

gun drawn, while Vega Cruz reversed and attempted

to spin his car back around. Id. The officer chased

after Vega Cruz on foot and caught him just as he was

about to drive away, positioning himself directly in

front of Vega Cruz. Id. Vega Cruz then began to drive

forward. Id. The officer felt threatened, and shot

Vega Cruz as a result. Id.

In each of these examples, whether the officer’s

use of force was reasonable could easily turn on how

much of the encounter the factfinder considers. For

Blackshire, the final frame suggests that the officer

found himself within inches of a car that was moving

towards him and had actually hit him; but going back

just a few frames suggests that the officer failed to

Death of Anthony Vega-Cruz (Mar. 3, 2020), http://portal.ct.gov/dcj/whats-news/reports-on-the-use-of-force-by-peaceofficers/2019---april---anthony-vega-cruz---wethersfield.

16

wait for backup in a “high-risk” situation, drove to

within feet of a “high-risk” suspect, deliberately

stepped into the path of a moving vehicle, and jumped

onto its hood. For Rice, the final frame suggests that

the officer found himself within feet of a potentially

armed individual reaching into his waistband; but

considering even a few more seconds shows that the

officer drove to within feet of a potentially armed

individual, left the safety of his cruiser, and likely

offered little or no warning before opening fire. And

for Vega Cruz, the final frame suggests that the

officer found himself within inches of a car that was

speeding towards him; but the totality of the

circumstances tells that the officer ran in front of the

car of a fleeing suspect.

These cases demonstrate that the final frame is

not the entire picture. To ensure that factfinders can

most accurately discern the “truth,” they must be able

to consider not just the moment of force, but the

events leading up to it.

B. The moment of threat doctrine disincentiviezes de-escalation tactics.

Officers’ training can impact how they address

potentially threatening situations. For example,

officers who learn that they must be hypervigilant

and always ready to battle 9 tend to escalate

9 Some

law enforcement training programs teach a “warriorstyle” mindset. Seth Stoughton, Law Enforcement’s “Warrior”

Problem, 128 Harv. L. Rev. F. 225, 227 (2015). At the 2021

Street Cop Training Conference, for example, one presenter encouraged officers to be “‘more dangerous’ than the situations

they encountered.” Robert Klemko, Much of America Wants Po-

17

encounters with civilians or overreact to perceived

threats.

See Bryan Borodkin, Officer-Created

Jeopardy and Reasonableness Reform: Rebuttable

Presumption of Unreasonableness Within 42 U.S.C. §

1983 Police Use of Force Claims, 55 U. Mich. J. L.

Reform 919, 923 (2022) (officers’ overreactions lead to

“officer-created jeopardy”). Consider the officer who

shot and killed Philando Castile, an African American

man, in 2016. That officer attended an online

training that encouraged officers to “be ready to kill”

or else risk being killed. 10 During the officer’s

encounter with Castile, the officer put that training

into practice: when Castile said during a traffic stop,

“Sir, I have to tell you, I do have a firearm on me,” the

officer immediately put his hand on his own gun, and

yelled: “Don’t pull it out!”11 Castile replied: “I’m not

pulling it out.” Id. Nevertheless, trained to kill or be

killed, the officer leaned through Castile’s window

and fired seven shots. Five of those shots hit Castile,

killing him within 20 minutes.

licing to Change. But These Self-Proclaimed Experts Tell Officers They’re Doing Just Fine, Wash. Post (Jan. 26, 2022),

https://www.washingtonpost.com/national-security/2022/01/26/police-training-reform/. Another presenter likened officers to lions, civilians to jackals, and proclaimed: “Sometimes, every now and again, you’ve got to remind those jackals

what you are.” Id. Some trainings are even more explicit, instructing trainees to be “mentally prepared to react violently.”

Stoughton, supra, at 227 (quotation omitted).

10 Tad Vezner, Fiery Debate Over ‘Warrior’ Training for Officer

in Philando Castile Shooting, St. Paul Pioneer Press (July 14,

2016), http://www.twincities.com/2016/07/14/fiery-debate-overwarrior-training-for-officer-in-philando-castile-shooting/.

11 Philando Castile Death: Police Footage Released, BBC (June

21, 2017), http://www.bbc.com/news/world-us-canada-40357355.

18

In contrast, some training programs encourage

officers to “use de-escalation techniques and other

alternatives to higher levels of force consistent with

his or her training … before resorting to force.” See

National Consensus Policy on Use of Force 3 (Jan.

2017); see also Tom Jackman and Dan Morse, Police

De-Escalation Training Gaining Renewed Clout as

Law Enforcement Seeks to Reduce Killings, Wash.

Post (Oct. 27, 2020)12 (encouraging officers to “create

space, slow things down, ask open-ended questions

and hold off reaching for their guns to avoid ramping

up confrontation”). Take, for example, the City of

Seattle. In 2015, Seattle rolled out an officer training

program to school its officers in de-escalation

tactics.13 Just months later, Seattle officers put that

training into practice. When a man walked down the

street wielding a knife, the officers trailed behind him

at a distance. Id. One officer said: “You gotta drop

the knife, buddy.” Id. When the man did not comply,

the officers exited their cruiser and walked slowly

towards the man, still maintaining distance. Id.

Another officer said: “If you put the knife down and

come over here and sit down, we can work something

out.” Id. The man ultimately complied—and no one

resorted to violence. Id.

By permitting juries and courts to consider the

circumstances leading up to an encounter, the totality

https://www.washingtonpost.com/local/deescalation-trainingpolice/2020/10/27/3a345830-14a8-11eb-ad6f36c93e6e94fb_story.html.

13 Timothy Williams, Long Taught to Use Force, Police Warily

Learn to De-Escalate, N.Y. Times (June 27, 2015),

https:www.nytimes.com/2015/06/28/us/long-taught-to-use-forcepolice-warily-learn-to-de-escalate.html.

12

19

of the circumstances doctrine provides a legal

incentive for officers to avoid escalation—and to

employ de-escalation techniques—in their civilian

encounters. When factfinders are restricted to only

the moment of violence, they can consider neither

evidence that an officer overreacted to a perceived

threat nor evidence of an officer’s attempts to deescalate before using force.

The totality of

circumstances approach, in contrast, permits the

factfinder to understand the full context of the

officers’ actions and arrive at a fair determination of

reasonableness.

C. The moment of threat doctrine especially

harms African American communities.

Restricting courts’ analysis to the precise moment

an officer exercises force has a particularly

devastating effect on African American communities.

African Americans are more than three times as

likely as their white peers to be killed by the police.

See Gabriel L. Schwartz et al., Mapping Fatal Police

Violence Across U.S. Metropolitan Areas: Overall

Rates and Racial/Ethnic Inequities, 2013-2017,

PLOS ONE, at 5 (June 24, 2020). That disparity is

even greater in major cities—between January 2013

and December 2019, police departments in the

nation’s 100 largest cities killed four times as many

unarmed African American civilians as unarmed

white civilians. See Michalos, supra, at 1034 n. 12.

African American men and boys are particularly

vulnerable to fatal police violence. Statistical models

predict that one in 1,000 African American men and

boys will die from police violence—a higher likelihood

than any other group. See Frank Edwards et al., Risk

20

of Being Killed by Police Use of Force in the United

States by Age, Race-Ethnicity, and Sex, 116 PNAS

16,793, 16,794 (2019).

Because African Americans are disproportionately

affected by police violence, factfinders must

frequently weigh in on whether the use of deadly force

against African Americans is reasonable. It is

therefore imperative, particularly for African

Americans,

that

factfinders

reach

correct

reasonableness determinations—informed by all

relevant facts. Where factfinders are prohibited from

reviewing the totality of the circumstances, they risk

making incorrect reasonableness determinations

that, in certain cases, may exonerate officers from

their unreasonable use of force against African

Americans and other civilians.

CONCLUSION

For the above reasons, the Petition for a Writ of

Certiori should be granted.

21

Respectfully submitted.

ANNA T. PLETCHER

MELISSA C. CASSEL

ALEXANDER K. MCDONALD

O’MELVENY & MYERS LLP

Two Embarcadero Center

28th Floor

San Francisco, CA 94111

RACHEL A. CHUNG

Counsel of Record

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20036

rchung@omm.com

(202) 383-5264

HANA STODDER

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

June 24, 2024