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

Supreme Court briefNov 20, 2024

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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,

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 TEXAS CIVIL RIGHTS

PROJECT IN SUPPORT OF PETITIONER

Daniel N. Guisbond

Counsel of Record

Danielle L. Trujillo

Nicholas J. Steverson

Wheeler Trigg O’Donnell LLP

370 Seventeenth Street

Suite 4500

Denver, CO 80202

303.244.1800

guisbond@wtotrial.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTERESTS OF AMICUS CURIAE ......................... 1

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

ARGUMENT ............................................................... 4

THE MOMENT-OF-THREAT

DOCTRINE ALLOWS POLICE TO

TRANSFORM ROUTINE TRAFFIC STOPS

INTO DEADLY ENCOUNTERS IN

VIOLATION OF THE FOURTH

AMENDMENT. .......................................................... 4

A. The application of the moment-of-threat

doctrine in the traffic-stop context

contravenes this Court’s existing Fourth

Amendment jurisprudence. .............................. 5

B. The moment-of-threat doctrine denies

recourse to those already

disproportionately affected by police

violence during traffic stops. ............................ 7

II.

THE MOMENT-OF-THREAT

DOCTRINE LESSENS THE PROTECTIONS

AFFORDED TO INDIVIDUALS

EXPERIENCING MENTAL HEALTH

CRISES. .................................................................... 10

A. Mental health crises lead to one in five

legal intervention deaths. ............................... 10

B. The moment-of-threat doctrine absolves

officers who unreasonably escalate

mental health crises. ...................................... 12

C. The moment-of-threat doctrine will

absolve more officers of liability for the

deaths of people experiencing mental

health crises. ................................................... 15

CONCLUSION ......................................................... 17

iii

TABLE OF AUTHORITIES

Cases

Barnes v. Felix,

532 F. Supp. 3d 463 (S.D. Tex. 2021),

aff’d, 91 F.4th 393 (5th Cir. 2024) ............2-7, 10, 15

Bazan ex rel. Bazan v. Hidalgo Cnty.,

246 F.3d 481 (5th Cir. 2001) .................................. 14

Elizondo v. Green,

671 F.3d 506 (5th Cir. 2012) ............................ 16, 17

Graham v. Connor,

490 U.S. 386 (1989) ........................................ 2, 5, 14

Grigsby v. Lawing,

No. 5:16CV16-RWS-CMC,

2017 WL 9806927 (E.D. Tex. Aug. 21, 2017)..... 15, 17

Harris v. Serpas,

745 F.3d 767 (5th Cir. 2014) ................ 13, 14, 15, 17

Rockwell v. Brown,

664 F.3d 985 (5th Cir. 2011) ...................... 15, 16, 17

Sanchez v. Gomez,

No. EP-17-CV-133-PRM,

2020 WL 1036046 (W.D. Tex. Mar. 3, 2020) ......... 15

Tennessee v. Garner,

471 U.S. 1 (1985) ........................................ 2, 5, 6, 12

Constitutional Provisions

U.S. Const. amend. IV ................... 2, 3, 4, 5, 12, 15, 17

Statutes, Rules and Regulations

Supreme Court Rule 37.6 ............................................ 1

TEX. TRANSP. CODE ANN. § 370.177 ............................. 7

Other Authorities

Ashley Abramson, Building Mental Health into

Emergency Responses, 52 MONITOR ON PSYCH.

30 (2021) ................................................................. 10

Br. of The Tex. Civ. Rights Proj. as Amicus Curiae

in Supp. of Pet. for Cert., June 24, 2024 ............... 12

Sarah DeGue et al., Deaths Due to Use of Lethal

Force by Law Enforcement: Findings from the

National Violent Death Reporting System, 17

U.S. States, 2009–2012, 51 AM. J. PREVENTATIVE MED. S173 (2016) ..................................... 10, 11

Houston Police Dep’t, General Order No. 600-17,

Houston Police Dep’t (rev. Mar. 4, 2022),

https://www.houstontx.gov/police/general_orders/

600/600-17%20Use%20of%20Force.pdf

(last

visited Nov. 15, 2024) ............................................ 16

Nichole Manna, Killed in Crisis: How North Texas

Cities Have Failed People in Mental Distress,

FORT WORTH STAR TELEGRAM, https://www.

star-telegram.com/news/politics-government/

article254828547.html (last visited Nov. 7,

2024) ................................................................. 11, 12

Pierson et al., A Large-Scale Analysis of Racial

Disparities in Police Stops Across the United

States, 4 NAT. HUM. BEHAV. 736 (2020) .............. 4, 8

Police Shootings Database, THE WASH. POST,

https://www.washingtonpost.com/graphics/

investigations/police-shootings-database/?itid=

lk_inline_manual_3 (last visited Nov. 7, 2024) .... 11

Susannah N. Tapp & Elizabeth J. Davis, Contacts

Between Police and the Public, 2020, U.S. DEP’T

OF JUSTICE BUREAU OF JUSTICE STATISTICS

(2022) .................................................................... 3, 8

The Texas Civil Rights Project, Safe Passage:

Traffic Safety & Civil Rights 2024 Update

(forthcoming December 2024).......................... 1, 7, 8

Traffic Stops, City of Houston Police Transparency Hub, https://mycity.maps.arcgis.com/apps/

dashboards/8e62e67b8855477b993cfdc48a94ca17

(last visited Nov. 10, 2024) .................................. 8, 9

Use of Force, City of Houston Police Transparency

Hub, https://mycity.maps.arcgis.com/apps/dash

boards/21eac904178c4d12a7dd8e29c0ee238e

(last visited Nov. 10, 2024) ...................................... 9

INTERESTS OF AMICUS CURIAE

The Texas Civil Rights Project (“TCRP”) is a nonprofit organization made up of Texas lawyers and advocates who strive to protect and promote the civil

rights of all Texans.1 For more than thirty years,

TCRP has sought to advance the rights of the state’s

most vulnerable populations through advocacy in and

out of the courtroom. For instance, TCRP has examined the racial and economic disparities that make

non-safety traffic stops—like the traffic stop that led

to Ashtian Barnes’s death—“more dangerous, harmful, and deadly for Black and brown drivers.” The

Texas Civil Rights Project, Safe Passage: Traffic

Safety & Civil Rights 2024 Update, at 4 (forthcoming

December 2024) (hereinafter, “Safe Passage Report”).2

TCRP also previously represented Petitioner Janice

Hughes Barnes and Respondent Tommy Duane

Barnes in their suit against Officer Roberto Felix, Jr.,

and Harris County before the district court below, but

it does not represent any party on appeal.

TCRP submits this brief in support of Petitioner

because the moment-of-threat doctrine routinely

shields police officers from liability for the use of excessive force and, in turn, undermines the Fourth

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from TCRP, its members, and

its counsel, made any monetary contribution toward the preparation or submission of this brief.

2 The 2023 edition of TCRP’s Safe Passage Report is available

here:

https://aab91155-966e-43a7-af87-a209b39e1f8b.usrfiles.

com/ugd/a4ea0d_6c3f29945a5740cd8b8c6c7f40bfd23c.pdf.

Amendment rights of the Texans for whom TCRP advocates. TCRP urges the Court to reverse the Fifth

Circuit decision below to make clear the moment-ofthreat doctrine has no place under the Fourth Amendment.

SUMMARY OF ARGUMENT

Deadly force violates the Fourth Amendment unless an officer has probable cause to believe a suspect

poses a significant threat of death or serious physical

injury to the officer or others. Tennessee v. Garner,

471 U.S. 1, 11 (1985). Under that standard, “the totality of the circumstances” must justify the use of deadly

force. See id. at 9; see also Graham v. Connor, 490 U.S.

386, 396 (1989).

The moment-of-threat doctrine rejects those basic

principles. In a minority of federal circuits—including

the Fifth Circuit, which encompasses all the diverse

communities across Texas that TCRP serves—the doctrine requires courts to ignore the totality of the circumstances and fixate instead on the split-second

when an officer used deadly force. That doctrine is

wrong, for all the reasons Judge Higginbotham recognized in his concurrence below: It “starves the reasonableness analysis by ignoring relevant facts to the expense of life” and, in so doing, contradicts this Court’s

mandate in Garner. Barnes v. Felix, 91 F.4th 393,

400–01 (5th Cir. 2024) (Higginbotham, J., concurring).

Eight circuits rightly reject the moment-of-threat

doctrine. See id. at 400 n.13 (collecting cases). Yet the

Second, Fourth, Fifth, and Eighth Circuits continue to

adhere to the doctrine, even though it “is an impermissible gloss on Garner that stifles a robust examination

of the Fourth Amendment’s protections for the American public.” Id. at 401. So, in states like Texas, it does

not matter whether an officer escalated an encounter

or put himself in harm’s way before using deadly force:

Under the moment-of-threat doctrine, an officer can

escape liability so long as he was “in danger” at the

precise instant he fired his gun.

Unless this Court abolishes the moment-of-threat

doctrine, it will continue to sanction the deaths of

countless more individuals like Ashtian Barnes. In

this brief, TCRP underscores two of the doctrine’s

many consequences for Texans seeking redress for an

officer’s use of excessive force—and, in turn, explains

why the Court should abrogate the moment-of-threat

doctrine entirely.

First, the moment-of-threat doctrine allows officers to escalate routine, non-safety traffic stops into

deadly confrontations without liability. Indeed, that is

the exact result of the doctrine here: “A routine traffic

stop has again ended in the death of an unarmed black

man” with no liability for the officer who used deadly

force. Id. at 398. Every year, police across the country

stop tens of millions of drivers for traffic violations.

Susannah N. Tapp & Elizabeth J. Davis, Contacts Between Police and the Public, 2020, U.S. DEP’T OF JUSTICE BUREAU OF JUSTICE STATISTICS, 4 (2022). These

routine stops disproportionately involve—and disproportionately turn deadly for—Black and Latino drivers. Id. at 11. Unless this Court reverses the Fifth Circuit’s decision below, the moment-of-threat doctrine

will continue to shield officers from liability for their

unjustified use of force in many of those deadly situations.

Second, the moment-of-threat doctrine extends

beyond traffic stops. Every day, police respond to calls

to help citizens suffering from mental health crises.

But the moment-of-threat doctrine allows police to escalate these welfare checks to the point of violence

and then escape liability by arguing that their violence

was justified at the exact second they fired their weapons. Absent this Court’s intervention, the moment-ofthreat doctrine will continue to sanction the deaths of

those within this vulnerable population.

This Court should reverse the decision below and

make clear the moment-of-threat doctrine has no place

under the Fourth Amendment, in the Fifth Circuit or

anywhere else.

ARGUMENT

THE MOMENT-OF-THREAT DOCTRINE ALLOWS POLICE TO TRANSFORM ROUTINE

TRAFFIC STOPS INTO DEADLY ENCOUNTERS IN VIOLATION OF THE FOURTH

AMENDMENT.

Traffic stops are one of the most common interactions people have with the police each year. Pierson et

al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 NAT. HUM. BEHAV. 736, 736 (2020). Indeed, police officers conduct an

estimated 20 million traffic stops per year. Id. As

Judge Higginbotham recognized in his concurrence below, however, the existing Fourth Amendment jurisprudence on the use of pretext in traffic stops has already “brought fuel to a surge of deadly encounters between the police and civilians.” Barnes, 91 F.4th at

398–99

(Higginbotham,

J.,

concurring).

Unfortunately, “traffic stops and the use of deadly

force are too often one and the same—with Black and

Latino drivers overrepresented among those

killed . . . .” Id. at n.5.

The moment-of-threat doctrine only furthers that

disturbing pattern. By “blinding [courts to] an officer’s

role in bringing about the ‘threat’ precipitating the use

of deadly force,” id. at 398, the doctrine sanctions police officers’ unreasonable use of force, often to the detriment of the Black and Hispanic drivers impacted the

most.

A. The application of the moment-of-threat

doctrine in the traffic-stop context contravenes this Court’s existing Fourth

Amendment jurisprudence.

Under the Fourth Amendment, courts must consider the nature of a suspect’s underlying crime in determining whether an officer’s use of force was constitutional. Indeed, Graham, 490 U.S. at 396, instructs

courts to consider “the severity of the crime at issue”

when determining whether the force used to effect a

particular seizure is reasonable, while Garner, 471

U.S. at 11, directs courts to look to whether there was

probable cause to believe that the suspect committed

a crime involving the infliction of serious physical

harm when analyzing the constitutionality of the use

of deadly force against a fleeing suspect.

For courts that have adopted the moment-ofthreat doctrine, however, “the moment of threat is the

sole determinative factor” in the reasonableness

analysis. See Barnes, 91 F.4th at 401 (Higginbotham,

J., concurring) (emphasis added). This means that it is

of no matter whether police stopped the suspect for an

innocuous (or even manufactured) crime—so long as

the officer was in danger when he used deadly force,

the moment-of-threat doctrine permits deadly intervention. But see Garner, 471 U.S. at 15 (recognizing

that the common-law rule “forbids the use of deadly

force to apprehend a misdemeanant, condemning such

action as disproportionately severe”).

Below, Judge Higginbotham recognized that the

foregoing framework “starves the reasonableness

analysis by ignoring relevant facts to the expense of

life.” Barnes, 91 F.4th at 400 (Higginbotham, J. concurring). Indeed, he continued, Petitioner’s case is paradigmatic of the doctrine’s shortcomings. See id. Specifically, instead of considering Officer Felix’s decision

to (1) jump onto the door sill of a moving vehicle and

(2) in the span of two seconds, begin shooting inside of

the vehicle, the district court could only consider

whether Officer Felix was in danger at the moment of

the threat that caused him to use deadly force. See

Barnes v. Felix, 532 F. Supp. 3d 463, 471 (S.D. Tex.

2021), aff’d, 91 F.4th 393 (5th Cir. 2024). Because “the

moment of the threat” occurred after Officer Felix had

jumped onto the door and while he was “still hanging

onto the moving vehicle” he believed “would run him

over,” the district court concluded that his use of

deadly force against Ashtian Barnes was not excessive. Id. at 471.

Absent from that analysis is any consideration of

the fact that Officer Felix had originally stopped Mr.

Barnes due to outstanding toll tag violations—which,

under the Texas Transportation Code, is a misdemeanor punishable by a fine not to exceed $250. See

Barnes, 91 F.4th at 399 & n.6 (Higginbotham, J., concurring) (citing TEX. TRANSP. CODE ANN. § 370.177).

This non-moving traffic violation, like a citation for expired tags or inspection stickers, is “not tied to public

safety but more so connected to collecting fines and

fees.” Safe Passage Report, at 10. Still, the moment-ofthreat doctrine applies all the same—giving Officer

Felix the same level of deference for using deadly force

following a traffic stop for an unpaid toll violation as

it would have if Mr. Barnes had been pulled over for

suspicion of a violent crime.

Thus, a court’s application of the moment-ofthreat doctrine in the context of traffic stops, specifically, is plainly inconsistent with this Court’s precedent—the doctrine disregards the underlying severity

of a suspect’s crime and, in certain circumstances, may

allow an officer to use deadly force to apprehend a suspected misdemeanant. Unfortunately, in practice, this

means that individuals like Mr. Barnes who are

stopped for innocuous traffic offenses in states where

the moment-of-doctrine applies are entitled to fewer

protections against the use of unreasonable force during a traffic stop than those stopped for the very same

conduct across state lines.

B. The moment-of-threat doctrine denies

recourse to those already disproportionately affected by police violence during

traffic stops.

By failing to impose liability on police who escalate everyday traffic stops into deadly situations, the

moment-of-threat doctrine has a greater impact on

those already disproportionately affected by police violence.

Social scientific research on traffic stop data suggests that traffic stops are more deadly, harmful, and

impactful on Black and Brown drivers. For example,

in a 2020 analysis of approximately 100 million traffic

stops conducted by state patrol agencies and municipal police departments over a ten-year span, researchers found “that decisions about whom to stop and, subsequently, whom to search are biased against black

and Hispanic drivers.” Pierson et al., supra, at 740–

41. Specifically, researchers noted that “among state

patrol stops, the annual per-capita stop rate for black

drivers was 0.10 compared to 0.07 for white drivers;

and among municipal police stops, the annual per-capita stop rate for black drivers was 0.20 compared to

0.14 for white drivers.” Id. at 737.

Race also impacts the outcomes of traffic stops. In

studies analyzing nationwide traffic stop and survey

data, researchers found that Black and Hispanic drivers are (1) more likely to be searched than their white

counterparts, see id. at 737–38; (2) more likely to experience some type of police action during traffic stops,

Tapp & Davis, supra, at 11; (3) more likely to experience police misconduct during contact with the police,

id. at 10; and (4) more likely than white drivers to experience the threat or use of force, id. at 11.

These patterns are borne out at the local level, as

well. For example, despite accounting for only 22% of

Houston’s population, Black drivers accounted for 38%

of the non-safety traffic stops the Houston Police Department conducted in 2023. Safe Passage Report, supra, at 4 (analyzing data from Traffic Stops, City of

Houston Police Transparency Hub, https://mycity.maps.arcgis.com/apps/dashboards/8e62e67b

8855477b993cfdc48a94ca17 (last visited Nov. 10,

2024)). What’s more, Black drivers accounted for 55%

of all searches, 49% of arrests, and 52% of those who

suffered physical force. Id. (analyzing data from Use

of Force, City of Houston Police Transparency Hub,

https://mycity.maps.arcgis.com/apps/dashboards/21e

ac904178c4d12a7dd8e29c0ee238e (last visited Nov.

10, 2024)). Latino drivers were the second most represented group in each of the foregoing categories, accounting for 31% of non-safety stops, 27% of traffic

stop arrests, 23% of searches, and 23% of uses of physical force. Id.

These figures are all the more concerning given

the apparent rising prevalence of these pretextual and

disproportionate traffic stops. In 2023, for instance,

the Houston Police Department conducted approximately 90,000 more traffic stops than it had the year

prior—representing an increase of 27% for all traffic

stops and 49% of non-safety stops, specifically. Id.

Given the financial benefit the city of Houston receives

from the fines and fees associated with such traffic

stops—over $2.25 million in 2023 alone—there is little

reason to believe that this pattern will change absent

significant policy reform. See id. This means that

Black and Brown drivers will continue to bear the

brunt of pretextual traffic stops and their attendant

deadly consequences.3

3 Traffic stop data from the San Antonio Police Department, Dal-

las Police Department, and McAllen Police Department show

that non-safety traffic stops increased in all jurisdictions. Id. at

5–7.

For Texans of color, who already suffer a disproportionate risk of being stopped for a traffic violation

and having that stop turn deadly, the application of

the moment-of-threat doctrine means they are afforded fewer constitutional protections than their

white counterparts. See, e.g., Barnes, 91 F.4th at 398

(Higginbotham, J., concurring) (recognizing that the

moment-of-threat doctrine again cloaked an officer

with immunity following a routine traffic stop ending

in the death of an unarmed Black man).

II. THE MOMENT-OF-THREAT DOCTRINE

LESSENS THE PROTECTIONS AFFORDED

TO INDIVIDUALS EXPERIENCING MENTAL HEALTH CRISES.

A. Mental health crises lead to one in five

legal intervention deaths.

The moment-of-threat doctrine has deadly consequences in non-traffic-stop contexts, as well. In Texas

and nationwide, police serve as front line responders

to persons experiencing mental health crises. See Sarah DeGue et al., Deaths Due to Use of Lethal Force by

Law Enforcement: Findings from the National Violent

Death Reporting System, 17 U.S. States, 2009–2012,

51 AM. J. PREVENTATIVE MED. S173, S179 (2016); see

also Ashley Abramson, Building Mental Health into

Emergency Responses, 52 MONITOR ON PSYCH. 30, 30–

32 (2021) (discussing the role of police in responding

to mental health crises in Texas and elsewhere). Indeed, up to 20% of all calls for police intervention involve a mental health or substance abuse crisis.

Abramson, supra, at 30. Often, these calls are initiated by someone who is concerned about the safety of

the person in crisis and only wants to get that person

help. See DeGue et al., supra, at S180.

Yet a substantial number of encounters between

police and persons experiencing a mental health crisis

end in the use of deadly force. A study of legal intervention deaths between 2009 and 2012 found that

21.7% of the surveyed deaths “were directly related to

issues with the victim’s mental health or substanceinduced disruptive behaviors.” Id. That percentage remains high today: Between January 2015 and November 2024, 20% of fatal police shootings nationwide involved a person experiencing a mental health crisis.

Police Shootings Database, THE WASH. POST,

https://www.washingtonpost.com/graphics/investigations/police-shootings-database/?itid=lk_inline_manual_3 (last visited November 7, 2024) (choose “Mental

illness crisis” from the dropdown menu) (reflecting

that police killed 2,015 people experiencing a mental

health crisis in that time period). And Texas is no exception; a study of police-related shootings in North

Texas found that at least one in three people killed by

Dallas-Fort Worth area police were experiencing a

mental health crisis. See Nichole Manna, Killed in Crisis: How North Texas Cities Have Failed People in

Mental Distress, FORT WORTH STAR TELEGRAM,

https://www.star-telegram.com/news/politics-government/article254828547.html (last visited Nov. 7,

2024).

So far in 2024, police nationwide have killed 136

persons experiencing a mental health crisis. Id.

(choose “Mental illness crisis” and “2024” from the

dropdown menu).4 At the time of writing, Texas police

alone have killed seventeen such persons since the

turn of the year. Id. (choose “Mental illness crisis,”

“2024,” and “Texas” from the dropdown menu).

The Fourth Amendment should provide all these

persons the same fundamental protection: Police cannot use deadly force when responding to a mental

health crisis unless, under the totality of the circumstances, the suspect poses a significant threat of death

or serious physical injury to the officers or others. See

Garner, 471 U.S. at 9, 11. And if an officer breaches

that protection, Section 1983 should provide the victim’s family with recourse. But in Texas and other

states within moment-of-threat doctrine Circuits, that

is not the case.

B. The moment-of-threat doctrine absolves

officers who unreasonably escalate mental health crises.

Contrary to the Fourth Amendment’s mandate,

the moment-of-threat doctrine allows Texas officers to

use deadly force when responding to mental health crises even when, under the totality of the circumstances,

deadly force is unjustified—and indeed, even when the

officer unreasonably provokes the victim.

4 Indeed, police killed 81 such people since TCRP filed its brief in

support of the Petition for Certiorari in June of this year. (See

Br. of The Tex. Civ. Rights Proj. as Amicus Curiae in Supp. of

Pet. for Cert. 12, June 24, 2024 (noting that police nationwide

had killed 55 persons experiencing a mental health crisis from

January to June 2024).)

Harris v. Serpas, 745 F.3d 767 (5th Cir. 2014), is

paradigmatic. There, Brian Harris’s wife called the police because Mr. Harris had taken an overdose of

sleeping pills and locked himself in the couple’s room.

Id. at 770. Mr. Harris committed no crime, and

Ms. Harris was in no danger. Id. She simply feared for

her husband’s life and “called 911 for help.” Id.

Five officers responded. Id. Ms. Harris told them

that her husband did not have a gun, he sometimes

carried a folding knife for work, and he was overdosing

in the locked room. Id. The officers’ equipment took a

series of videos capturing their actions. Id.

First, the officers lined up outside the bedroom

door with weapons drawn, with a sergeant ordering, “I

want one gun and one taser right here.” Id. The officers then breached the door and found Mr. Harris lying

on the bed, covered with a blanket and completely still.

Id. They yelled his name, and he did not respond. Id.

They ordered him to show his hands, and he did not

respond. Id. An officer then pulled on the blanket, revealing a folding knife in Mr. Harris’s hand. Id. The

officers began shouting at Mr. Harris to put the knife

down. Id. He remained lying on the bed and, apparently disoriented, crossed his arms and said, “It’s not

coming down.” Id. Within seconds, an officer fired a

taser at Mr. Harris. Id.

In the next video, which only lasted six seconds,

Mr. Harris had stood up. Id. Another officer was actively tasing him. Id. At this point, Mr. Harris became

agitated and flailed his arms at the taser wires; in the

process, he raised the knife above his shoulder. Id. An

officer yelled at him to drop the knife, and when

Mr. Harris responded “I’m not dropping nothing,” an

officer killed him with gunfire. Id.

Mr. Harris’s family sued, arguing the officers

knew that he had not threatened anyone, he had not

committed any crime, and his wife had called the officers to save him. Id. at 772. Although Mr. Harris became agitated, this was due to the officers’ actions—

he was sleeping and disoriented when, in a matter of

seconds, the officers breached his door, shouted commands at him, and fired multiple tasers at him. Id.

The Fifth Circuit acknowledged that this Court

“has long held that courts must look at the ‘totality of

the circumstances’ when assessing the reasonableness

of a police officer’s use of force.” Id. at 772 (quoting

Graham, 490 U.S. at 396). But the Fifth Circuit asserted it had “narrowed that test” and “confined” the

excessive force inquiry to the moment of the threat

that resulted in the officer’s shooting. Id. (quoting Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 493

(5th Cir. 2001)).

Applying its narrowed test (i.e., the moment-ofthreat doctrine), the Fifth Circuit ignored all the officers’ unreasonable actions preceding the shooting—it

did not matter that the officers breached the door with

their guns drawn, shouted at Mr. Harris, and tasered

him while he lay on the bed. See id. at 773. All that

mattered was that Mr. Harris “was holding a knife

above his head at the moment [the officer] fired his

weapon.” Id. And in that isolated moment, deadly

force was justified. Id.

That approach disregards the totality of the circumstances, contrary to this Court’s directives. The

Fifth Circuit is not permitted to “narrow” this Court’s

Fourth Amendment tests, but it purported to do exactly that, limiting its analysis to the six seconds

when officers fired their guns. By “eliding the reality

of the role the officers played in bringing about the

conditions said to necessitate deadly force,” Barnes,

91 F.4th at 399 (Higginbotham, J., concurring), the

Fifth Circuit in Harris effectively ensured that the officers’ actions appeared reasonable.

C. The moment-of-threat doctrine will absolve more officers of liability for the

deaths of people experiencing mental

health crises.

Mr. Harris’s case is not an anomaly—the Fifth

Circuit and its district courts have applied the moment-of-threat doctrine in several similar cases.

In so doing, those courts all held that police killings of mentally ill or suicidal Texans were reasonable, but failed to conduct the full inquiry the Fourth

Amendment demands. See, e.g., Rockwell v. Brown,

664 F.3d 985, 992 (5th Cir. 2011) (ignoring whether it

was reasonable for police to breach locked door into

room of decedent experiencing a mental health crisis

in the moments before fatal shooting); Grigsby v. Lawing, No. 5:16CV16-RWS-CMC, 2017 WL 9806927, at

*18 (E.D. Tex. Aug. 21, 2017) (ruling there was no

Fourth Amendment violation when officer killed mentally ill decedent who ran at officer holding a spoon,

but declining to consider whether the officer’s conduct

“leading up to the moment of the threat” resulted in

the shooting); see also Sanchez v. Gomez, No. EP-17CV-133-PRM, 2020 WL 1036046, at *18 (W.D. Tex.

Mar. 3, 2020) (“In the context of mental illness, the

Court is precluded from considering whether an officer’s inadequate response to a mental health crisis

provoked the victim into acting aggressively.”).

Indeed, Judge DeMoss wrote separately in some

of the above cases to acknowledge that officers had

provoked the victim. See Rockwell, 664 F.3d at 996–97

(DeMoss, J., specially concurring) (“As I see it, they

provoked a man they knew to be mentally ill into a

violent reaction. They did not allow for any time to defuse the situation or implement the safest procedures

possible to take him into custody. Preventing a possible suicide is a worthy goal, but an armed entry that

heightens the risk to the potential victim’s life certainly is not the best way to accomplish that goal.”);

see also Elizondo v. Green, 671 F.3d 506, 511 (5th Cir.

2012) (DeMoss, J., specially concurring) (“Forcing

Ruddy’s bedroom door open, yelling orders at him, and

immediately drawing a firearm and threatening to

shoot was a very poor way to confront the drunk, distraught teenager who was contemplating suicide with

a knife.”). Police departments in Texas (and across the

nation) specifically train officers to use de-escalation

tactics when reasonable, to avoid this precise result.

See, e.g., Houston Police Dep’t, General Order No. 60017, Houston Police Dep’t (rev. Mar. 4, 2022),

https://www.houstontx.gov/police/general_orders/600

/600-17%20Use%20of%20Force.pdf (last visited Nov.

15, 2024) (“When safe and reasonable under the totality of circumstances, officers shall use de-escalation

techniques in an attempt to gain voluntary compliance

and to reduce or eliminate the use of physical force.”);

see also Br. for Pet. 41–42 (collecting policies). Still,

under the Fifth Circuit’s precedent, an officer’s unreasonable actions in the moments before the use of

deadly force are “not legally actionable,” even if they

provoke the victim. Rockwell, 664 F.3d at 997 (DeMoss, J., specially concurring).

Unless this Court repudiates the moment-ofthreat doctrine, the families of more mentally ill and

suicidal Texans—like the decedents in Harris,

Grigsby, Rockwell, Elizondo, and others—will not

have access to full recourse under Section 1983 and

the Fourth Amendment. Those families are entitled to

an analysis of whether their loved-ones’ deaths were

justified under the totality of the circumstances, but

the moment-of-threat doctrine starves that analysis.

The Court should make clear that when an officer kills

an individual undergoing a mental health crisis, the

Fourth Amendment’s full protections apply.

CONCLUSION

The moment-of-threat doctrine allows what the

Fourth Amendment forbids: the use of deadly force

when, under the totality of the circumstances, deadly

force is otherwise unreasonable. As a result, the

Fourth Amendment means less in the minority of jurisdictions that adhere to it—it offers less protection

to those pulled over for routine traffic stops, those experiencing mental health crises, and those who come

into contact with police for any other reason. The

Court should reject the moment-of-threat doctrine and

make clear that it has no place under the Fourth

Amendment.

Respectfully submitted,