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 Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE THE

RUTHERFORD INSTITUTE IN SUPPORT OF

PETITIONER

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

legal@rutherford.org

ANGELA M. LIU

Counsel of Record

DECHERT LLP

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3678

angela.liu@dechert.com

PETER J. MCGINLEY

CHRISTOPHER J. MERKEN

STEVEN OBERLANDER

SHANE SANDERSON

LUKE D. YAMULLA

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

November 19, 2024

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 2

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

I.

The Moment-Of-Threat Doctrine Defies This

Court’s Command To Apply A Totality-OfThe-Circumstances Test When Assessing A

Seizure’s Reasonableness. ................................... 3

A. The Moment-of-Threat Doctrine Is

Inconsistent With This Court’s Fourth

Amendment Jurisprudence. ......................... 6

B. Totality-of-the-Circumstances Analyses

Are Common In This Court’s

Jurisprudence. .............................................. 9

C. Disregarding Circumstances Preceding

An Officer’s Use Of Deadly Force

Diverges From The Reciprocal Analysis

Applied Across Areas Of Law. .................... 12

II. The Moment-of-Threat Doctrine’s

Requirement To Ignore Important Context

Prejudices Both Law Enforcement And

Criminal Suspects. ............................................ 16

CONCLUSION ......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abraham v. Raso,

183 F.3d 279 (3d Cir. 1999)................................. 8

Amador v. Vasquez,

961 F.3d 721 (5th Cir. 2020) ..................... 4, 7, 17

Banks v. Hawkins,

999 F.3d 521 (8th Cir. 2021).............................. 18

Bannon v. Godin,

99 F.4th 63 (1st Cir. 2024), cert.

docketed, No. 24-287 (U.S. Sept. 12,

2024) .................................................................. 21

Brower v. County of Inyo,

489 U.S. 593 (1989) ......................................... 7, 8

Elliott v. Leavitt,

99 F.3d 640 (4th Cir. 1996) ................................. 4

In re Estate of Bleck ex rel. Churchill,

643 F. App’x 754 (10th Cir. 2016) .................... 21

Florida v. Harris,

568 U.S. 237 (2013) ............................................. 9

Gardner v. Buerger,

82 F.3d 248 (8th Cir. 1996) ........................... 4, 18

iii

Graham v. Connor,

490 U.S. 386 (1989) ............................... 6, 7, 8, 20

Harris v. Serpas,

745 F.3d 767 (5th Cir. 2014) ......................... 7, 17

Henderson v. United States,

575 U.S. 622 (2015) ........................................... 13

Horton v. California,

496 U.S. 128 (1990) ........................................... 13

Howes v. Fields,

565 U.S. 499 (2012) ........................................... 11

Hupp v. Cook,

931 F.3d 307 (4th Cir. 2019) ............................... 6

Illinois v. Gates,

462 U.S. 213 (1983) ......................................... 3, 9

In Estate of Taylor v. Salt Lake City,

16 F.4th 744 (10th Cir. 2021) ........................... 19

Katz v. United States,

389 U.S. 347 (1967) ........................................... 16

Kentucky v. King,

563 U.S. 452 (2011) ..................................... 12, 13

Manis v. Lawson,

585 F.3d 839 (5th Cir. 2009)........................ 17, 18

Michigan v. Long,

463 U.S. 1032 (1983) ......................................... 20

iv

Nakahara v. NS 1991 Am. Tr.,

718 A.2d 518 (Del. Ch. 1998) ............................ 13

National Rifle Association of America v.

Vullo,

602 U.S. 175 (2024) ..................................... 14, 15

Norfolk S. Ry. Co. v. Sorrell,

549 U.S. 158 (2007) ........................................... 14

Olmstead v. United States,

277 U.S. 438 (1928) (Brandeis, J.,

dissenting), overruled by Berger v. State

of N.Y., 388 U.S. 41 (1967) ................................ 16

Pena v. City of Rio Grande City,

816 F. App’x 966 (5th Cir. 2020) ......................... 6

Plumhoff v. Rickard,

572 U.S. 765 ...................................................... 20

Rogoz v. City of Hartford,

796 F.3d 236 (2d Cir. 2015)................................. 6

Salim v. Proulx,

93 F.3d 86 (2d Cir. 1996) .................................... 4

Schoettle v. Jefferson Cnty.,

788 F.3d 855 (8th Cir. 2015) ............................... 6

Smith v. Agdeppa,

81 F.4th 994 (9th Cir. 2023) ............................. 21

St. Hilaire v. City of Laconia,

71 F.3d 20 (1st Cir. 1995) ................................... 8

v

Stansbury v. California,

511 U.S. 318 (1994) ........................................... 11

Tennessee v. Garner,

471 U.S. 1 (1985) ..................................... 3, 6, 7, 8

Terry v. Ohio,

392 U.S. 1 (1968) ............................... 3, 10, 19, 20

Thomson v. Salt Lake County,

584 F.3d 1304 (10th Cir. 2009).................... 20, 21

United States v. Brown,

209 F. App’x 450 (5th Cir. 2006) ....................... 10

United States v. Kaczynski,

551 F.3d 1120 (9th Cir. 2009) ........................... 14

United States v. Rodriguez,

33 F.4th 807 (5th Cir. 2022) ....................... 10, 20

United States v. Watson,

953 F.2d 895 (5th Cir. 1992) ............................. 10

Williams v. City of Sparks,

112 F.4th 635 (9th Cir. 2024) ........................... 20

Constitutional Provisions

U.S. Const. amend. I .............................................. 14

U.S. Const. amend. IV

............................... 2, 3, 4, 6, 9, 11, 12, 13, 19, 21

U.S. Const. amend. V ............................................. 11

vi

Statutes

42 U.S.C. § 1983 ....................................................... 4

Other Authorities

Christopher J. Merken & Barnett J. Harris,

Damn the Torpedoes! An Unprincipled,

Incorrect, and Lonely Approach to

Compassionate Release, 44 CARDOZO L.

REV. 477 (2022).................................................. 15

Dan B. Dobbs et al., The Law of Torts, § 218

(2d ed. 2023) ...................................................... 14

FED. R. CIV. P. 13(a)(1)(A) ...................................... 12

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

legal assistance at no charge to individuals whose

constitutional rights have been threatened or violated

and educates the public about constitutional and

human rights issues affecting their freedoms. The

Rutherford Institute works tirelessly to resist tyranny

and threats to freedom by seeking to ensure that the

government abides by the rule of law and is held

accountable when it infringes on the rights

guaranteed by the Constitution and laws of the United

States.

1 Pursuant to Rule 37.6, amicus curiae affirms that no counsel for

a party wrote this brief in whole or in part and that no person

other than amicus curiae, its members, and its counsel made a

monetary contribution to its preparation or submission.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

By applying the moment-of-threat doctrine and

considering only facts immediately preceding a law

enforcement officer’s use of deadly force, the decision

below contravenes this Court’s clear mandate to

consider the totality of the circumstances to evaluate

the reasonableness of a seizure under the Fourth

Amendment. Indeed, eight courts of appeals have

rejected the moment-of-threat doctrine, recognizing

that trial courts must consider all relevant facts and

circumstances, including the officer’s actions

preceding the use of force. That approach is consistent

with this Court’s jurisprudence, as well as reciprocal

analysis principles that are fundamental to our

adversarial legal system. It is also a neutral test that

favors neither law enforcement nor citizens suspected

of crimes.

The decision below exemplifies the unjust

outcomes that result from applying the moment-ofthreat doctrine. During a brief, uneventful traffic stop

for toll violations, Ashtian Barnes turned his vehicle

back on. Up to that point, Mr. Barnes had not given

the police officer any reason to suspect that he posed a

threat. Nevertheless, the officer jumped onto the door

sill of the running vehicle, shouted, and shoved his

gun into Mr. Barnes’s head, at which point the car

started to move. Within two seconds, the officer then

shot Mr. Barnes. In eight circuits, courts would

evaluate all the facts bearing on the officer’s conduct

and determine that the seizure-by-deadly-force was

not reasonable. But in four circuits, including the

Fifth Circuit below, courts blind themselves to the

3

facts and consider only the moment immediately

preceding the officer’s use of deadly force. In those

circuits, the officer’s use of deadly force was

reasonable and Mr. Barnes’s Fourth Amendment

rights were not violated.

As petitioner argues persuasively, the decision

below illustrates the moment-of-threat doctrine’s

inherent shortcomings. The Court should reverse the

Fifth Circuit’s decision and confirm that courts must

evaluate the totality of the circumstances when

analyzing the reasonableness of a seizure-by-deadlyforce.

ARGUMENT

I.

The Moment-Of-Threat Doctrine Defies This

Court’s Command To Apply A Totality-OfThe-Circumstances Test When Assessing A

Seizure’s Reasonableness.

The Fourth Amendment protects the “right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. Many forms of

police restraints constitute seizures under the Fourth

Amendment. Terry v. Ohio, 392 U.S. 1, 16 (1968) (a

seizure occurs whenever an officer “accosts an

individual and restrains his freedom to walk away”).

This Court has long recognized that “there can be no

question that apprehension by the use of deadly force

is a seizure.” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

In assessing the reasonableness of a Fourth

Amendment seizure, courts must consider the totality

of the circumstances. Illinois v. Gates, 462 U.S. 213,

238 (1983). Notwithstanding this clear mandate, four

4

courts of appeals—including the Fifth Circuit below—

disregard the totality of the circumstances when

analyzing seizures involving police use of deadly force.

Instead, they apply the so-called moment-of-threat

doctrine, a judicial construct divorced from this

Court’s precedent that forces courts to blind

themselves to relevant facts and consider only “the act

that led the officers to discharge their weapons.”

Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020).2

In this case, police stopped Ashtian Barnes for

driving a rental car with outstanding toll tag

violations. See Pet.App.2a. Mr. Barnes pulled over

and shut off his car. Id. at 3a. After a short,

uneventful exchange with Officer Roberto Felix, Jr.,

Mr. Barnes turned the car back on. Id. Not content to

let Mr. Barnes go, Officer Felix stepped onto the door

sill of the running vehicle, shouted, and shoved his

gun into Mr. Barnes’s head. At that point, the car

started to move, and, within two seconds, Officer Felix

shot Mr. Barnes. Id. at 3a–4a.

Mr. Barnes’s parents sued Officer Felix and Harris

County, Texas, under 42 U.S.C. § 1983, alleging that

Officer Felix’s use of deadly force was an

unconstitutional

seizure

under

the

Fourth

Amendment. Id. at 4a–5a. The District Court held

that the seizure-by-deadly-force was reasonable

because Mr. Barnes “posed a threat of serious harm”

to the officer when his car began to move. Id. at 6a.

The Court of Appeals applied the moment-of-threat

2 See also Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (adopting

the moment-of-threat doctrine); Elliott v. Leavitt, 99 F.3d 640,

643 (4th Cir. 1996) (same); Gardner v. Buerger, 82 F.3d 248, 252

(8th Cir. 1996) (same).

5

doctrine and affirmed because at the moment

immediately before he shot Mr. Barnes in the head,

Officer Felix reasonably feared for his life. Id. at 8a.

One might wonder how the Court of Appeals could

reach that conclusion given that Officer Felix stopped

Mr. Barnes for outstanding toll violations, id. at 2a,

Mr. Barnes made no threats and posed no immediate

danger to Officer Felix at any point during the traffic

stop, see id. at 16a (Higginbotham, J., concurring), and

any potential threat to Officer Felix arose only after

he chose to step onto the door sill of a running vehicle,

id. But the moment-of-threat doctrine compelled that

conclusion. Constrained by this unconstitutional

judge-made rule to consider only the exact moment

before Officer Felix pulled the trigger, the lower court

concluded that Officer Felix acted within his

constitutional authority when he shot Mr. Barnes to

prevent him from fleeing the scene of a benign traffic

stop related to a few dollars in unpaid tolls. Id.

(finding that Officer Felix acted reasonably despite the

totality of the circumstances revealing that “the use of

lethal force against this unarmed man preceded any

real threat to Officer Felix’s safety”).

This Court should reverse the Fifth Circuit’s

decision because it is inconsistent with this Court’s

jurisprudence regarding police use of force, as well as

broader principles of our adversarial legal system.

6

A. The

Moment-of-Threat

Doctrine

Is

Inconsistent With This Court’s Fourth

Amendment Jurisprudence.

The touchstone of Fourth Amendment analysis is

reasonableness. In assessing reasonableness, this

Court has instructed that “the question [is] whether

the totality of the circumstances justified a particular

sort of . . . seizure.” Garner, 471 U.S. at 8–9. Applying

a reasonableness analysis in the context of a police

seizure “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.” Graham v.

Connor, 490 U.S. 386, 396 (1989). Accordingly, when

assessing an unconstitutional seizure claim for

excessive use of force, courts must consider all facts

and circumstances relevant to the seizure.

In less-than-deadly-force cases, the Second,

Fourth, Fifth, and Eighth Circuits correctly apply the

totality-of-the-circumstances approach that Graham

requires.3 But when these same courts assess the

reasonableness of seizures-by-deadly-force, they

3 See, e.g., Rogoz v. City of Hartford, 796 F.3d 236, 246–48 (2d Cir.

2015) (applying a Graham totality-of-the-circumstances analysis

where an officer jumped on the back of a prone arrestee,

fracturing his spine and a rib); Hupp v. Cook, 931 F.3d 307, 321–

23 (4th Cir. 2019) (same where officer “grabb[ed] and thr[ew]” an

unarmed woman to the ground); Pena v. City of Rio Grande City,

816 F. App’x 966, 969–74 (5th Cir. 2020) (same where officer used

a stun gun on a fleeing woman); Schoettle v. Jefferson Cnty., 788

F.3d 855, 859 (8th Cir. 2015) (same where officer pepper sprayed,

struck, and pulled a man from a truck).

7

discard the totality of the circumstances in favor of a

myopic view of only the exact moment before an officer

deploys lethal force.

Amador, 961 F.3d at 728

(considering only “the act that led the officers to

discharge their weapons”). And district courts in these

circuits are prohibited from considering “any of the

officers’ actions leading up to” the use of force, even if

the officers created the circumstances that produced

the moment of threat motivating their use of deadly

force. Harris v. Serpas, 745 F.3d 767, 772 (5th Cir.

2014). In doing so, these courts diverge from this

Court’s precedent, arbitrarily delineate the moment of

threat—usually beginning only a few seconds before

the use of force—and disregard all other relevant

facts.

Pet.App.12a–13a

(Higginbotham,

J.,

concurring). This practice dictated the unjust outcome

below.

In contrast, the First, Third, Sixth, Seventh,

Ninth, Tenth, Eleventh, and D.C. Circuits correctly

recognize that “totality of the circumstances” means

what it says. These circuits consider all aspects of the

seizure to determine whether police used

unreasonably excessive force.

In rejecting the

moment-of-threat approach, they draw not only on

Garner and Graham but also this Court’s example in

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

Brower began as a high-speed pursuit. Id. at 594.

Police, trying to stop a man in a stolen car, constructed

a roadblock across both lanes of a highway. Id. at 594,

598. The fleeing driver crashed into the roadblock and

died. Id. at 594. His heirs sued, alleging an

unconstitutional seizure. Id. This Court concluded a

seizure occurred and instructed the district court to

8

analyze the allegation that police “set[] up the

roadblock in such manner as to be likely to kill” the

fleeing driver (including by using headlights to blind

him) to determine whether the seizure was

reasonable. Id. at 599.

Most circuit courts draw this inescapable

conclusion from Brower: the district court on remand

would have to look beyond the mere seconds that make

up the moment of threat to determine if the seizure

was reasonable. E.g., Abraham v. Raso, 183 F.3d 279,

292 (3d Cir. 1999); St. Hilaire v. City of Laconia, 71

F.3d 20, 26 (1st Cir. 1995). Otherwise, as one court

explained, “remand . . . would have been pointless.”

Abraham, 183 F.3d at 292. Indeed, police “preseizure

planning and conduct”—i.e., constructing the

roadblock minutes before the seizure—was “the only

basis for saying the seizure was unreasonable.” Id.

There is no other sensible reading of Brower. The

Fifth Circuit’s decision below reveals how moment-ofthreat jurisprudence provides no “principled way of

explaining when ‘pre-seizure’ events start and,

consequently, [no] defensible justification for why

conduct prior to that chosen moment should be

excluded.”

Abraham, 183 F.3d at 291–92.

By

arbitrarily constricting its analysis to a mere moment

in time and refusing to consider key facts, the Fifth

Circuit—and other circuits that apply the moment-ofthreat doctrine—ignored this Court’s instructions in

Garner, Graham, and Brower to analyze all relevant

circumstances, including police conduct leading up to

the use of force.

9

B. Totality-of-the-Circumstances

Are

Common

In

This

Jurisprudence.

Analyses

Court’s

This Court’s criminal procedure jurisprudence

consistently instructs courts to consider the totality of

the circumstances.

In the Fourth Amendment

context, this holistic analysis “traditionally has guided

probable cause determinations” when a magistrate

evaluates an affidavit for the purposes of issuing a

search warrant. Gates, 462 U.S. at 233. When

performing a probable cause determination, judges

undertake “a balanced assessment of the relative

weights of all the various indicia of reliability (and

unreliability) attending an informant’s tip.” Id. at 234.

This “flexible, easily applied standard . . . better

achieve[s] the accommodation of public and private

interests that the Fourth Amendment requires” than

more restrictive approaches. Id. at 239.

This Court has instructed courts to consider the

totality of the circumstances in other probable cause

determinations, such as when police use a drugdetection dog to sniff out illicit substances. In Florida

v. Harris, this Court instructed courts to examine

“whether all the facts surrounding a dog’s alert,

viewed through the lens of common sense, would make

a reasonably prudent person think that a search

would reveal contraband or evidence of a crime.” 568

U.S. 237, 248 (2013).

The Court unanimously

“rejected rigid rules, bright-line tests, and mechanistic

inquiries in favor of a more flexible, all-thingsconsidered approach.” Id. at 244.

10

The same sort of reasoning informed this Court’s

analysis in Terry v. Ohio. 392 U.S. at 30. There, the

Court held that an officer may stop a person if the

officer has a reasonable suspicion that the person

committed a crime. The officer may then search that

person if there is reasonable suspicion that the person

poses a danger to the officer or others.

The officer in Terry watched two men for about ten

minutes and suspected they were likely “casing a job”

and carrying a gun. Id. at 7. The Court found the

officer’s subsequent seizure reasonable even though,

in the moments immediately preceding the stop, the

men were merely wandering down a street and looking

in a store window. See id. at 6–7, 30. It was the

cumulative nature of their actions that created

reasonable suspicion for the officer to act.

The Fifth Circuit itself has recognized in the Terry

context that events preceding a seizure are relevant.

For example, in United States v. Rodriguez, the Fifth

Circuit considered information that undoubtedly

spanned more than a moment. 33 F.4th 807 (5th Cir.

2022).4

The court’s analysis included: a car’s

passenger and driver moving in their seats in

apparent response to police; removing a jacket; pulling

into an apartment complex associated with gang

activity; hesitation before stopping; and opening of car

doors as officers approached. Id. at 813. The court

concluded that this evidence was sufficient to support

reasonable suspicion and render a subsequent search

reasonable. Id. at 813–14.

4 See also United States v. Brown, 209 F. App’x 450, 453 (5th Cir.

2006); United States v. Watson, 953 F.2d 895, 897 (5th Cir. 1992).

11

Totality-of-the-circumstances

analyses

exist

beyond the Fourth Amendment context, as well. To

take one example, this Court has instructed that

“courts must examine ‘all of the circumstances

surrounding [an] interrogation’” to determine whether

a person is in custody for Miranda purposes under the

Fifth Amendment. Howes v. Fields, 565 U.S. 499, 509

(2012) (quoting Stansbury v. California, 511 U.S. 318,

322 (1994)). The Court listed five relevant, nonexhaustive factors to consider—“the location of the

questioning, its duration, statements made during the

interview, the presence or absence of physical

restraints during the questioning, and the release of

the interviewee at the end of the questioning.” Id.

(cleaned up). These factors invite courts to consider

not a single moment, but the entire set of facts and

circumstances relevant to police conduct.

At bottom, this Court’s criminal procedure

jurisprudence directs courts to consider the full range

of relevant facts when assessing the constitutionality

of law enforcement conduct. The moment-of-threat

doctrine is impossible to square with that

jurisprudence. It is a “rigid rule” that artificially and

unnecessarily blinds courts to critical context inherent

in every police encounter.

12

C. Disregarding Circumstances Preceding

An Officer’s Use Of Deadly Force Diverges

From The Reciprocal Analysis Applied

Across Areas Of Law.

Fundamental to our adversarial legal system is

reciprocal analysis. Where a party’s conduct bears on

the matter disputed before the court, it is to be

considered.5 This principle ensures complete and

considered adjudication of legal disputes and supports

doctrinal

acknowledgement

of

police-created

exigencies, officer-created dangers, unclean hands,

and comparative (or contributory) negligence. To

arbitrarily ignore a party’s actions—as the moment-ofthreat doctrine requires—is to rig the game,

undermining the credibility of the courts and the

legitimacy of law enforcement, and thereby eroding

the consent of the governed.

In other areas of its Fourth Amendment

jurisprudence, this Court has similarly demonstrated

the need for reciprocal analysis of the parties’ conduct.

In Kentucky v. King, the Court explained that policecreated exigencies do not fall within the exigentcircumstances exception to the warrant requirement.

563 U.S. 452, 462 (2011). For law enforcement to

access a dwelling without a warrant based on

potential destruction of evidence, officers must not

have “create[d] the exigency by engaging or

threatening to engage in conduct that violates the

Fourth Amendment.” Id.

5 See, e.g., FED. R. CIV. P. 13(a)(1)(A) (requiring joinder of claims

that “arise[] out of the transaction or occurrence that is the

subject matter of the opposing party’s claim”).

13

The Court’s reasoning demarcates the power of

the judiciary in its approach to Fourth Amendment

analysis. It is inappropriate for the judiciary to design

doctrines that would overtake the executive’s

responsibility to determine appropriate and effective

police procedure. Id. at 467–68. But this limitation is

counterbalanced by an interest in ensuring

“evenhanded law enforcement.” Id. at 464 (quoting

Horton v. California, 496 U.S. 128, 138 (1990)). The

boundary between this dichotomy is marked—and the

resolution of an apparent tension is resolved—by a

reasonableness analysis that prohibits interference

with “legitimate law enforcement strategies.” See

King, 563 U.S. at 466 (emphasis added). Thus, where

officers without a warrant “do no more than any

private citizen might do,” they act reasonably and are

not to blame for any exigency that may arise. Id. at

469, 472. But if officers exceed the legitimate limits of

their power, they could not then call on the response

to their misdeed as an ex post justification cognizable

under the Fourth Amendment. Thus, although there

are certain limitations on the court imposed by

separation of powers, it is still very much within the

court’s responsibility to conduct reciprocal analysis.

Similarly, the equitable doctrine of unclean hands

ensures that courts do not deliberately disregard

conduct relevant to the dispute before them. This

“rule of public policy,” Nakahara v. NS 1991 Am. Tr.,

718 A.2d 518, 522 (Del. Ch. 1998) (cleaned up), applies

when “an individual’s misconduct has ‘immediate and

necessary relation to the equity that he seeks,’”

Henderson v. United States, 575 U.S. 622, 625 n.1

(2015) (quoting Keystone Driller Co. v. Gen. Excavator

Co., 290 U.S. 240, 245 (1933)). Thus, for instance,

14

when petitioned for the return of otherwise innocent

materials, a court should consider whether the

petitioner was a bombmaker attempting to access

tainted tools. United States v. Kaczynski, 551 F.3d

1120, 1129–30 (9th Cir. 2009). The doctrine of unclean

hands is an assurance that a court will inquire into the

relevant conduct of all the parties before it.

Reciprocal analysis also appears in tort doctrines.

Traditionally, contributory negligence served as a

complete bar to a plaintiff ’s action sounding in

negligence. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158,

166 (2007). Recently, the rule has relaxed in favor of

comparative negligence, which provides for a

reduction in damages proportional to a plaintiff ’s

responsibility. Dan B. Dobbs et al., The Law of Torts,

§ 218 (2d ed. 2023). Importantly, both the modern and

traditional regime require that courts analyze all

parties’ relevant conduct.

This Court has recently alluded to the same

necessity in the First Amendment context.

In

National Rifle Association of America v. Vullo, the

petitioner alleged that a government regulator

attempted to coerce insurers into dissociating from it

to punish or suppress its views. 602 U.S. 175, 185

(2024). The NRA alleged that the regulator informed

an insurer of regulatory violations but said she would

be disinclined to bring an enforcement action—on

apparently unrelated infractions—if the insurer

dissociated from the NRA. Id. at 180–181. In finding

a First Amendment violation, this Court held that

“[o]ther allegations, viewed in context, reinforce” the

claim. Id. at 193. The lower court had found for

respondent only by “taking the allegations in isolation

15

and failing to draw reasonable inferences” in favor of

petitioner. Id. at 194. The circuit’s reasoning included

a failure to analyze certain government actions

“against the backdrop of other allegations in the

complaint.” Id. at 195. Ultimately, the lower court

erroneously focused on doctrinal “guideposts” rather

than the “‘critical’ question” at the heart of the case.

Id. at 199 (Gorsuch, J., concurring) (citation omitted).

That this concept appears across legal doctrines is

unsurprising because it simply expresses the principle

that—in deciding a controversy—courts must consider

the conduct of the parties to the controversy. Ignoring

this well-settled and broadly applied principle, several

circuits apply the moment-of-threat doctrine. Here,

the court below removed from consideration Officer

Felix’s decisions to (1) stop Mr. Barnes for unpaid tolls;

(2) draw his firearm in response to no apparent threat;

and (3) mount Mr. Barnes’s running vehicle. It instead

determined reasonableness with a “moment” in time

and effectively discarded the conduct of one party to

the controversy. The moment-of-threat doctrine thus

insulates unreasonable behavior by intentional

judicial ignorance.6 Continued application of this

6 By evaluating the conduct of parties to the controversy in the

seizure-by-deadly-force context, courts properly consider and

respect the dignity of both the law enforcement officer and the

citizen suspected of committing a crime. See Christopher J.

Merken & Barnett J. Harris, Damn the Torpedoes! An

Unprincipled, Incorrect, and Lonely Approach to Compassionate

Release, 44 CARDOZO L. REV. 477, 518 (2022) (“We trust judges to

uphold . . . values and ideals” including “mercy, forgiveness,

redemption, [and] dignity.”) (cleaned up). By contrast, courts that

blind themselves to the facts preceding an officer’s use of deadly

force fail to respect the dignity of the decedent.

16

doctrine could embolden law enforcement officers to

act recklessly and create unnecessary risks to their

own safety, and the safety of the general public, in

response to minor violations. Such effective immunity

for lawlessness “breeds contempt for law”; “invites

every man to become a law unto himself”; and “invites

anarchy.” Olmstead v. United States, 277 U.S. 438,

485 (1928) (Brandeis, J., dissenting), overruled by

Berger v. State of N.Y., 388 U.S. 41 (1967), and Katz v.

United States, 389 U.S. 347 (1967).

II.

The

Moment-of-Threat

Doctrine’s

Requirement To Ignore Important Context

Prejudices Both Law Enforcement And

Criminal Suspects.

Applying the moment-of-threat doctrine not only

harms people subject to unreasonable uses of force; it

can also harm officers who act reasonably based on

facts that occur outside the moment of threat. In other

words, the doctrine’s limitation on courts’

consideration of probative facts cuts both for and

against law enforcement. And it always undermines

a court’s ability to accurately evaluate reasonableness.

Consider the following hypothetical: A police

officer patrols a public park at night. From a distance,

he sees a man point a gun at a woman before shoving

her to the ground and running away. The officer goes

to check on the woman and then looks for the man.

The officer finds him several minutes later standing in

a dimly lit area. The parties dispute what happens

next, and there are no witnesses or security camera

footage to verify what occurred. Ultimately, the officer

shoots the man, paralyzing him. Is the fact that the

17

man brandished a gun and shoved a woman relevant

to the officer’s assessment of danger?

Of course. But a court applying the moment-ofthreat doctrine might disagree. The opinion below

states the “‘moment of threat’ test means that ‘the

focus of the inquiry should be on the act that led the

officer to discharge his weapon.’” Pet.App.8a (quoting

Amador, 961 F.3d at 728). Thus, the court defined the

relevant “moment” as just the “two seconds before

Barnes was shot.” Id. The court further noted that

“‘[a]ny of the officers’ actions leading up to the shooting

are not relevant for the purposes of an excessive force

inquiry[.]’” Id. (quoting Harris v. Serpas, 745 F.3d 767,

772 (5th Cir. 2014)).

Applied to the above

hypothetical, the moment-of-threat doctrine would

require a court to ignore that the suspect had pointed

a gun at a woman and shoved her to the ground,

limiting its analysis only to the seconds immediately

preceding the officer’s use of deadly force.

This extreme view leaves courts with little room

to consider important facts relevant to evaluating the

reasonableness of police use of force. For example, in

Manis v. Lawson, the Fifth Circuit considered whether

police acted reasonably in shooting a man when he

reached under his car seat. 585 F.3d 839, 845 (5th Cir.

2009). There, the Fifth Circuit refused to consider preshooting conduct, and thus disregarded assertions

that police did not believe Mr. Manis had a weapon.

Id. The court further disregarded testimony relating

to an officer’s claim that Mr. Manis cursed out officers,

refused to comply with police orders, and acted

erratically. Id. The court reasoned that “the only fact

material to whether [the officer] was justified in using

18

deadly force [was] that [the suspect] reached under the

seat of his vehicle and then moved as if he had

obtained the object he sought.” Id.7 In other words, it

did not matter if pre-shooting evidence demonstrated

that officers knew there was no threat because, in

evaluating the reasonableness of the police use of

force, the court could consider only Mr. Manis’s

movements moments before the shooting. Id.

This artificially narrow view of the facts can cut

both ways; indeed, the moment-of-threat test will not

always favor law enforcement officers, even if they act

reasonably under the totality of the circumstances.

Take Banks v. Hawkins, where the Eighth Circuit

applied its version of the moment-of-threat doctrine to

reject a police officer’s summary-judgment motion.

999 F.3d 521, 523 (8th Cir. 2021). In Banks, the officer

was dispatched to a domestic abuse call, heard a

woman screaming “no, no, no,” followed by several

loud noises, and was hit over the head when he

entered the house. Id. at 523–24. Although the

district court held that there were factual disputes,

the Eighth Circuit concluded that it must “evaluate

the reasonableness of [the officer]’s conduct by looking

primarily at the threat present at the time he deployed

the deadly force.” Id. at 525–26. What was important

was “‘the seizure itself—here, the shooting—and not []

the events leading up to it.’” Id. (quoting Gardner v.

Buerger, 82 F.3d 248, 253 (8th Cir. 1996)).

7 There was no weapon in the car.

Id. at 842.

19

Returning to the above hypothetical, if a court

were to consider only the “act that led the officer to

discharge his weapon,” the court would not consider

that the officer saw the suspect point a gun at a

woman and shove her several minutes before the use

of force. Instead, the court would consider only what

happened in the few seconds before the use of force,

ignoring critical evidence that would support a

subsequent use of deadly force.

Without clear

evidence justifying the use of force in those moments

immediately preceding the use of force, the momentof-threat doctrine may not shield the officer from

liability.8

By

contrast,

Graham’s

totality-of-thecircumstances test protects officers who act

reasonably based on facts beyond the immediate

moment of the threat.9 Numerous examples bear this

out.

8 As a matter of fact, the Tenth Circuit addressed a scenario like

this hypothetical in In Estate of Taylor v. Salt Lake City, 16 F.4th

744 (10th Cir. 2021). In that case, police officers shot a man after

he ignored their commands, walked away from them with his

hands near his waistband, verbally challenged the officers, then

lifted his shirt and began removing one of his hands from his

waistband as if drawing a gun. Id. at 747. Instead of considering

only the facts immediately preceding the officers’ use of deadly

force, the court considered the totality of the circumstances,

including the fact that police stopped the suspect because he (or

one of his companions) matched the description of a man who had

flashed a gun earlier that night. Id. at 771–777.

9 Fourth Amendment jurisprudence in other contexts recognizes

the necessity of considering the totality of the circumstances. In

Terry cases, for example, federal courts often look to strings of

events, each of which alone would be insufficient to justify an

20

In Plumhoff v. Rickard, this Court focused on one

of the Graham factors—attempted flight—when

examining officer use of deadly force. 572 U.S. 765.

The decedent led police on a high-speed chase; when

the officers caught up to him, he tried to speed away,

and officers fired shots into his car. Id. at 768–70. The

Court concluded that, given the suspect’s previous

actions, his “flight posed a grave public safety risk”

and therefore officers “acted reasonably in using

deadly force to end that risk.” Id. at 777.

The Ninth Circuit recently considered a similar

scenario where police officers shot and killed a

criminal suspect in his car, which the officers had

boxed in using their own vehicles. Williams v. City of

Sparks, 112 F.4th 635, 640–42 (9th Cir. 2024). In

holding that the officers’ use of force was justified, the

court considered facts well beyond the moment of the

threat—including that the suspect had led officers on

a forty-two-minute high-speed chase. Id. at 645.

Likewise, in Thomson v. Salt Lake County, the

Tenth Circuit applied its totality-of-the-circumstances

test to evaluate a police officer’s use of deadly force.

584 F.3d 1304 (10th Cir. 2009). Although the decedent

was not threatening others when police used force

officer’s reasonable suspicion of danger but together are

sufficient. For example, in Terry, the Court considered an

officer’s observations of suspects over a long period of time to

determine that the officer had a reasonable suspicion of danger

sufficient for a search. 392 U.S. at 12; see also Michigan v. Long,

463 U.S. 1032, 1049 (1983) (considering observations made by an

officer from the moment he began tailing the suspect’s car to find

that the officer had a reasonable suspicion of danger); United

States v. Rodriguez, 33 F.4th 807, 813 (5th Cir. 2022) (finding the

same).

21

against him, he had a history of making violent

threats. Id. at 1323. The Tenth Circuit concluded this

tapestry of threats was relevant in evaluating police

officers’ use of force in a certain circumstance. Id.; see

also, e.g., In re Estate of Bleck ex rel. Churchill, 643 F.

App’x 754, 756 (10th Cir. 2016) (Gorsuch, J.) (officers’

use of force was reasonable based on facts known to

the officers well before the moment immediately

preceding the use of force, even though facts in that

moment, standing alone, may not have supported the

use of force); Bannon v. Godin, 99 F.4th 63, 79 (1st Cir.

2024) (officers reasonably used deadly force on a

suspect who “posed an immediate threat both to the

officers and to the public both before and at the time

of” the shooting, which occurred after a lengthy, highspeed chase with many crashes on busy urban streets),

cert. docketed, No. 24-287 (U.S. Sept. 12, 2024); Smith

v. Agdeppa, 81 F.4th 994, 1004 (9th Cir. 2023), cert.

denied, No. 24-15, 2024 WL 4427164 (U.S. Oct. 7,

2024) (officer acted reasonably in using deadly force on

a man who had been engaged in a lengthy struggle

with two officers in a small space “after the use of nonlethal force had proven ineffective, and only after the

assault continued to intensify”).

The moment-of-threat doctrine weakens a court’s

ability to consider facts probative of reasonableness.

In this case, the doctrine favored a law enforcement

officer acting unreasonably.

In other instances,

reasonable law enforcement activities may be

disfavored. Regardless, the doctrine consistently

prevents courts from appropriately analyzing Fourth

Amendment reasonableness.

22

CONCLUSION

For the foregoing reasons, as well as those set

forth by Petitioner, the judgment of the Court of

Appeals should be reversed.

23

Respectfully submitted,

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

legal@rutherford.org

ANGELA M. LIU

Counsel of Record

DECHERT LLP

1095 Avenue of the

Americas

New York, NY 10036

(212) 698-3678

angela.liu@dechert.com

PETER J. MCGINLEY

CHRISTOPHER J. MERKEN

STEVEN OBERLANDER

SHANE SANDERSON

LUKE D. YAMULLA

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

November 19, 2024