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

No. 23-1239

In the Supreme Court of the United States

JANICE HUGHES BARNES, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,

DECEASED, PETITIONER

v.

ROBERTO FELIX, JR., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING VACATUR AND REMAND

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KRISTEN M. CLARKE

Assistant Attorney General

NICOLE M. ARGENTIERI

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorneys General

ERIC J. FEIGIN

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the Solicitor

General

THOMAS BOOTH

TERESA KWONG

CAROLINE W. TAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether and to what extent circumstances leading

up to an officer’s use of force are relevant to determining whether that use of force was reasonable under the

Fourth Amendment.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ................................................................. 5

Argument....................................................................................... 9

A. Assessment of the reasonableness of an officer’s use

of force under the Fourth Amendment should not

categorically disregard prior officer conduct ................. 9

1. The excessive-force inquiry examines

reasonableness from the perspective of a

reasonable officer, which may include his

knowledge of past events ........................................... 9

2. The past events relevant to the reasonableness

of an officer’s use of force can include the

officer’s own past actions ......................................... 11

3. An officer’s knowledge of his past conduct can

contextualize whether a threat existed at the

moment force was used ............................................ 13

B. Respondent’s sole and exclusive focus on the

moment of the threat is unsound .............................. 16

1. This Court’s precedents do not support a

blinkered focus on the moment of the threat

alone ........................................................................... 17

2. Focusing only on the moment of the threat

makes little sense and would create

administrability problems ........................................ 21

C. The court of appeals misapplied the Fourth

Amendment ...................................................................... 22

Conclusion ................................................................................... 24

(III)

IV

TABLE OF AUTHORITIES

Cases:

Page

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) ................... 21

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

cert. denied, 141 S. Ct. 1513 (2021) ..................................... 4

City & County of San Francisco v. Sheehan,

575 U.S. 600 (2015)............................................ 13, 15, 16, 20

City of Tahlequah v. Bond, 595 U.S. 9 (2021) ................. 8, 18

County of Los Angeles v. Mendez,

581 U.S. 420 (2017).............................................. 8, 10, 18, 19

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 23

Estate of Biegert ex rel. Biegert v. Molitor,

968 F.3d 693 (7th Cir. 2020) ........................................... 7, 15

Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993) ...... 15

Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir.),

cert. denied, 506 U.S. 973 (1992) ..................................... 4, 5

Graham v. Connor,

490 U.S. 386 (1989)................................. 6, 7, 9-13, 16, 17, 23

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

cert. denied, 574 U.S. 823 (2014) ................................... 5, 23

Heien v. North Carolina, 574 U.S. 54 (2014) ..................... 15

Kentucky v. King, 563 U.S. 452 (2011) ................................ 13

Kingsley v. Hendrickson, 576 U.S. 389 (2015) ....... 10, 12, 17

Lombardo v. City of St. Louis, 594 U.S. 464 (2021) ........... 10

Ornelas v. United States, 517 U.S. 690 (1996) ................... 18

Palacios v. Fortuna, 61 F.4th 1248 (10th Cir. 2023) .......... 14

Plumhoff v. Rickard, 572 U.S. 765 (2014) ......6, 11, 13, 15, 21

Puskas v. Delaware County,

56 F.4th 1088 (6th Cir. 2023) ............................................. 14

Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011),

cert. denied, 566 U.S. 1009 (2012) ....................................... 4

Scott v. Harris, 550 U.S. 372 (2007) ......................... 12, 15, 17

V

Cases—Continued:

Page

Tennessee v. Garner, 471 U.S. 1 (1985) ..........9, 10, 12, 17, 18

United States v. Knights, 534 U.S. 112 (2001) .................... 16

Wilson v. Arkansas, 514 U.S. 927 (1995) ........................ 7, 12

Constitution and statutes:

U.S. Const.:

Amend. IV ................................. 1, 3, 5, 6, 10, 12, 13, 15, 19

Amend. XIV (Due Process Clause) ............................... 10

18 U.S.C. 242 ............................................................................ 1

34 U.S.C. 12601 ........................................................................ 1

42 U.S.C. 1983 .......................................................................... 3

In the Supreme Court of the United States

No. 23-1239

JANICE HUGHES BARNES, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,

DECEASED, PETITIONER

v.

ROBERTO FELIX, JR., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING VACATUR AND REMAND

INTEREST OF THE UNITED STATES

This case concerns the set of circumstances that may

be considered in evaluating an excessive-force claim

under the Fourth Amendment. The Fourth Amendment standard applies to both federal and state lawenforcement officers. The United States often defends

federal law-enforcement officers who face personal liability for alleged Fourth Amendment violations. The

United States also prosecutes excessive-force cases under 18 U.S.C. 242 and brings civil actions to address systemic Fourth Amendment violations by law enforcement under 34 U.S.C. 12601. The United States therefore has a substantial interest in the Court’s resolution

of this case.

(1)

2

STATEMENT

1. Respondent Roberto Felix, Jr., a trafficenforcement officer for Harris County, Texas, was patrolling the Sam Houston Tollway on the afternoon of

April 28, 2016, when he received a radio broadcast about

a vehicle on the road with outstanding toll violations.

Pet. App. 2a, 18a. Respondent subsequently spotted a

Toyota Corolla whose license plate matched the plate

number provided over the radio, and he initiated a traffic stop by activating his emergency lights. Id. at 18a.

The Corolla was being driven by Ashtian Barnes, who

pulled over to the left shoulder of the Tollway. Ibid.

Respondent parked behind him. Ibid.

Respondent stepped out of his patrol vehicle, approached the driver’s side of the Corolla, and asked

Barnes for his driver’s license and proof of insurance.

Pet. App. 18a, 26a. Barnes responded that he did not

have his license and that the car was a rental in his girlfriend’s name. Id. at 18a. As Barnes spoke, and throughout his discussion with respondent, Barnes was rummaging through papers inside the vehicle, causing respondent to warn Barnes several times to stop “digging

around.” Ibid.

Respondent told Barnes that he smelled marijuana

and asked Barnes if there was anything in the vehicle

that respondent should know about. Pet. App. 2a-3a,

18a. Barnes responded that he might have the requested documents in the trunk. Id. at 3a, 26a. Respondent asked Barnes to open the trunk, and Barnes

popped it open from the driver’s seat. Id. at 3a. The

car’s taillights then stopped blinking, indicating that

Barnes had turned off the vehicle. Id. at 3a, 18a-19a.

About three minutes into the stop, respondent, with

his right hand on his holster, asked Barnes to step out

3

of the car. Pet. App. 3a, 19a, 26a. Barnes opened the

door, but he did not step out. Id. at 3a. Instead, Barnes

turned the car back on. Id. at 19a, 27a.

Respondent drew his weapon as the car started to

move forward. Pet. App. 27a. Respondent twice shouted

“don’t fucking move!” as the car began to accelerate.

Ibid. Either shortly before or shortly after the car

started accelerating, respondent jumped onto the vehicle’s door sill (the flat base of the car door). See id. at

3a-4a (stating that respondent stepped onto the sill before the car started accelerating); id. at 19a (stating

that it was “unclear” from the dash camera footage

whether respondent stepped onto the sill before or after

acceleration).

With no visibility as to where he was aiming, respondent fired one shot inside the car. Pet. App. 4a, 27a.

The car continued to move forward, and respondent

fired a second shot. Id. at 4a. Barnes was struck, and

two seconds later, the car came to a full stop. Id. at 4a,

27a. Respondent jumped off the car, yelled “shots

fired!” into his radio, and held Barnes at gunpoint until

backup arrived. Id. at 4a. Barnes was pronounced dead

at the scene. Ibid.

2. Petitioner, who is Barnes’s mother, sued respondent and Harris County in state court under 42 U.S.C.

1983, alleging that respondent violated Barnes’s Fourth

Amendment rights by using excessive force against

him. Pet. App. 4a. Respondent and Harris County removed the action to the United States District Court for

the Southern District of Texas. Id. at 20a.

The district court granted summary judgment to respondent and Harris County, reasoning that respondent did not violate Barnes’s constitutional rights. Pet.

App. 17a-32a. The court stated that under circuit

4

precedent, if an “ ‘officer has reason to believe that the

suspect poses a threat of serious harm,’ ” then “the constitutional inquiry ends there.” Id. at 24a (citation omitted). Accordingly, the district court focused solely on

“whether the officer or another person was in danger at

the moment of the threat that resulted in the officer’s

use of deadly force.” Id. at 25a (quoting Rockwell v.

Brown, 664 F.3d 985, 991 (5th Cir. 2011), cert. denied,

566 U.S. 1009 (2012)).

The district court identified the “moment of the

threat” in this case as the “two seconds before [respondent] fired his first shot,” when respondent was standing

on the Corolla’s door sill and the car was accelerating.

Pet. App. 29a. The court concluded that at that moment, an officer in respondent’s position would reasonably believe that Barnes’s continued operation of the

car put respondent in danger. Id. at 31a.

The district court rejected petitioner’s argument

that “any danger perceived by [respondent] was created

solely by himself ” by stepping onto the car’s door sill.

Pet. App. 29a (citation and internal quotation marks

omitted). The court stated that “the Fifth Circuit does

not consider ‘what had transpired up until the shooting

itself ’ in assessing the reasonableness of an officer’s use

of deadly force.” Ibid. (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir.), cert. denied, 506 U.S.

973 (1992)).

3. The court of appeals affirmed. Pet. App. 1a-9a.

The court stated that under circuit precedent, “the

excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of

the threat that resulted in the officers’ use of deadly

force.” Id. at 7a-8a (quoting Amador v. Vasquez, 961 F.3d

721, 728 (5th Cir. 2020), cert. denied, 141 S. Ct. 1513

5

(2021)). The court therefore deemed “[a]ny of the officers’ actions leading up to the shooting” to be “not relevant for the purposes of an excessive force inquiry

in this Circuit.” Id. at 8a (quoting Harris v. Serpas,

745 F.3d 767, 772 (5th Cir.), cert. denied, 574 U.S. 823

(2014)). And here, the court concluded that respondent’s use of force was reasonable under the Fourth

Amendment because during the “moment of the

threat”—the two seconds when respondent “was still

hanging on to the moving vehicle”—respondent reasonably believed that he was in serious danger. Ibid.

In a concurring opinion, Judge Higginbotham (the

author of the panel opinion) expressed his concern with

the Fifth Circuit’s approach to deadly-force cases. Pet.

App. 10a-16a. In Judge Higginbotham’s view, categorically disregarding “what has transpired up until the

moment of the shooting itself ” is inconsistent with this

Court’s directive that reasonableness should be analyzed in light of the “totality of [the] circumstances.” Id.

at 12a-13a (quoting Fraire, 957 F.2d at 1276, and Tennessee v. Garner, 471 U.S. 1, 9 (1985)). Rather than focus only on the “moment of the threat,” Judge Higginbotham would have also considered circumstances

leading to the use of force, including respondent’s decision to “jump onto the sill of the vehicle with his gun

already drawn.” Id. at 15a. And under that approach,

Judge Higginbotham would have found that respondent’s use of force was unreasonable under the Fourth

Amendment. Id. at 16a.

SUMMARY OF ARGUMENT

The court of appeals erred in declaring that an officer’s conduct prior to using force is categorially irrelevant to whether the use of force was reasonable under

the Fourth Amendment. The reasonableness inquiry

6

examines the use of force through the lens of the totality

of the circumstances known to a reasonable officer,

which naturally and logically includes his own past conduct. Although the circumstances during the “moment

of the threat,” Pet. App. 8a, will often have prime importance, both this Court’s precedents and common

sense illustrate that those circumstances can be contextualized by the ones that preceded them. Because the

court of appeals indicated otherwise, this Court should

vacate the decision below and remand for application of

the proper framework.

A. The question in a Fourth Amendment excessiveforce case is whether the officer’s use of force was objectively reasonable “in light of the facts and circumstances confronting” him. Graham v. Connor, 490 U.S.

386, 395 (1989). That inquiry requires analyzing the

“ ‘totality of the circumstances’ ” “from the perspective

of a reasonable officer on the scene.” Id. at 396 (citation

omitted). A reasonable officer on the scene is aware of

not only the circumstances in the precise moment when

force is used, but also historical facts leading up to that

moment. The officer’s decision to resort to force may

be informed by, for example, the “severity of the crime”

that precipitated his encounter with the suspect, ibid.,

or behavior by the suspect earlier in the encounter indicating that the suspect would likely “resum[e]” dangerous behavior unless the officer used force, Plumhoff v.

Rickard, 572 U.S. 765, 777 (2014).

The relevant circumstances known to an officer at

the moment when force was used also naturally include

the officer’s own conduct leading up to that moment.

For example, an officer’s prior efforts to warn the suspect, deescalate the situation, or temper the degree of

force used may all be relevant to the reasonableness of

7

his subsequent use of force. Considering an officer’s

conduct leading up to the moment of force accords

with this Court’s consideration of prior officer conduct

when applying the “same standard of reasonableness at

the moment” to other types of searches and seizures.

Graham, 490 U.S. at 396.

To be sure, the circumstances at the moment that

force is used will generally have primary significance in

the analysis. Officers often must make split-second

judgments in defending themselves and the public from

danger, and an officer’s reasonable perception of a

threat in the moment generally should be respected.

But the circumstances in the moment of force cannot be

completely divorced from the context in which they

arose. An officer’s prior engagement with the suspect

may illuminate why escalation to force was necessary;

conversely, even a moment of apparent danger may not

reasonably call for deadly force if the officer previously

“acted so far outside the bounds of reasonable behavior

that the deadly force was almost entirely a result of [his]

actions.” Estate of Biegert ex rel. Biegert v. Molitor,

968 F.3d 693, 698 (7th Cir. 2020) (Barrett, J.). Although

the latter type of situation will be rare, the reasonableness analysis must allow for the entire totality of the

circumstances known to a reasonable officer, not just a

single, context-independent slice.

B. Respondent has contended that when an officer

experiences a “moment of threat” during which he reasonably believes that he is in danger, the reasonableness inquiry ends and no other prior conduct may be

considered. Br. in Opp. 24; see Pet. App. 7a-8a. That

rigid rubric is not supported by this Court’s precedents,

which demand a more context-sensitive and nuanced

approach. Respondent relies on County of Los Angeles

8

v. Mendez, 581 U.S. 420 (2017), and City of Tahlequah

v. Bond, 595 U.S. 9 (2021) (per curiam), but both of those

decisions expressly declined to decide the question presented in this case. Respondent also invokes this

Court’s decisions addressing mistakes in policing, but

those decisions simply show that the use of force can be

reasonable notwithstanding poor law-enforcement tactics; they do not completely preclude consideration of

prior events and officer conduct.

Indeed, a rule requiring exclusive focus on a “moment of threat” would make little sense in practice and

would be difficult to administer. An officer’s perception

of what a suspect might do next is necessarily informed

by the suspect’s prior behavior, as well as the officer’s

own actions toward the suspect. Especially when the

officer and the suspect have been interacting with one

another such that their prior actions are inextricably intertwined, their prior conduct can be useful in understanding what followed. And in practice, excluding all

circumstances preceding the “moment of threat” will

create line-drawing problems, as it can be difficult in a

rapidly evolving and fluid policing encounter to pinpoint

precisely when the moment of threat began.

C. Instead of examining all the circumstances known

to a reasonable officer in respondent’s position at the

moment of force, the lower courts in this case focused

exclusively on whether respondent reasonably perceived danger during the two seconds when he was

clinging to an accelerating vehicle. Pet. App. 8a. Because the lower courts erred in doing so, this Court

should vacate the decision below and remand to allow

them to consider the reasonableness of respondent’s

use of force under the proper standard in the first instance.

9

ARGUMENT

A claim that law enforcement used excessive force

during an investigation or arrest is “analyzed under the

Fourth Amendment and its ‘reasonableness’ standard.”

Graham v. Connor, 490 U.S. 386, 395 (1989). The analysis considers the “totality of the circumstances” known

to the officer, Tennessee v. Garner, 471 U.S. 1, 9 (1985),

and should not categorically exclude circumstances

leading up to the moment force was used, such as an officer’s prior conduct. While the situation at the moment

force is used will have paramount importance in many

cases, categorically ignoring actions leading up to that

moment would conflict with this Court’s precedents,

common sense, and sound principles of judicial administrability. The decision below, which applied such an

unsound approach, should accordingly be vacated and

the case remanded for further proceedings.

A. Assessment Of The Reasonableness Of An Officer’s Use

Of Force Under The Fourth Amendment Should Not

Categorically Disregard Prior Officer Conduct

1. The excessive-force inquiry examines reasonableness

from the perspective of a reasonable officer, which

may include his knowledge of past events

The “inquiry in an excessive force case is an objective one: the question is whether the officers’ actions

are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Graham, 490 U.S. at

397. Undertaking that inquiry requires analyzing the

“totality of the circumstances,” Garner, 471 U.S. at 9,

“from the perspective of a reasonable officer on the

scene,” Graham, 490 U.S. at 396, to determine the

10

force’s “reasonableness at the moment” it was used,

ibid.

The reasonableness inquiry accordingly examines

“the information the officers had when the conduct occurred.” County of Los Angeles v. Mendez, 581 U.S.

420, 428 (2017) (citation omitted); see Garner, 471 U.S.

at 9. That information is not limited to a snapshot of

what an officer saw in that moment, but instead “includ[es] what the officer knew at the time.” Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015) (citing Graham,

490 U.S. at 396). And such knowledge will naturally include events leading up to the use of force, as well as

other relevant facts.

Factors to which this Court has looked include “the

relationship between the need for the use of force and

the amount of force used; the extent of the plaintiff ’s

injury; any effort made by the officer to temper or to

limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by

the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397 (citing Graham, 490 U.S.

at 396); see Lombardo v. City of St. Louis, 594 U.S. 464,

466 n.2 (2021) (explaining that Kingsley’s standard for

excessive force under the Due Process Clause mirrors

the Fourth Amendment objective-reasonableness

standard). Those factors—which are neither rigid nor

exhaustive, see Kingsley, 576 U.S. at 397; Graham,

490 U.S. at 396—necessarily encompass historical facts

of which the officer is aware.

For example, the Court has made clear that an officer’s knowledge of the “severity of the crime at

issue”—which could plainly be a past event that may not

be evident at the moment of the threat—can carry significant weight in the reasonableness analysis. Graham,

11

490 U.S. at 396. An officer may well perceive a greater

threat from a wanted murderer on the lam than from a

jaywalker. And there is no logical reason to differentiate between that type of historical fact and other types

that would inform a reasonable officer’s evaluation of

the situation that he faces.

The relevance of historical facts is well-illustrated by

this Court’s decision in Plumhoff v. Rickard, 572 U.S.

765 (2014), which concluded that officers acted reasonably in shooting a driver who had led them on a highspeed car chase, id. at 768. That conclusion was based

in large part on the driver’s “outrageously reckless” behavior during the preceding “five minutes” and his attempts to keep driving even after a prior collision. Id.

at 776. The Court did not cabin its analysis to the precise moment when the officers used force. Instead, past

events within the officers’ knowledge informed the reasonableness analysis: “[u]nder the circumstances at the

moment when the shots were fired, all that a reasonable

police officer could have concluded was that Rickard

was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat

for others on the road.” Id. at 777 (emphases added).

2. The past events relevant to the reasonableness of an

officer’s use of force can include the officer’s own past

actions

The circumstances known to an officer at the moment

he uses force naturally include his own conduct—most

obviously, his interactions with the suspect—leading up

to that moment. Indeed, the Court has expressly identified at least one such conduct-based factor—namely,

the “effort made by the officer to temper or to limit the

amount of force”—as potentially relevant to the inquiry.

Kingsley, 576 U.S. at 397. An effort to deescalate the

12

threat typically precedes the use of force, and can inform the reasonableness of its application.

As the Court has recognized, the use of force may be

more reasonable when (if feasible) “some warning has

been given” by law enforcement beforehand. Garner,

471 U.S. at 11-12. Thus, the reasonableness inquiry in

Scott v. Harris, 550 U.S. 372 (2007), looked to the “[s]ix

minutes” that preceded the ultimate seizure, during

which time “[m]ultiple police cars, with blue lights flashing and sirens blaring, had been chasing [the driver] for

nearly 10 miles, but he ignored their warning to stop.”

Id. at 375, 384. And in light of that law-enforcement

conduct, the driver’s response, and other factors, the

Court held that an officer acted reasonably when he

ended a high-speed car chase by ramming the speeding

driver off the road. Id. at 385.

The consideration of such past officer conduct coheres with the framework in other Fourth Amendment

contexts. The reasonableness analysis for Fourth

Amendment excessive-force claims is not an island unto

itself, but instead applies the “same standard of reasonableness at the moment” as other Fourth Amendment

search and seizure inquiries. Graham, 490 U.S. at 396;

see, e.g., Scott, 550 U.S. at 382. And in those contexts

as well, the Court has often considered police conduct

leading up to the moment of the search or seizure.

The Court has explained, for example, that “the reasonableness of a search of a dwelling may depend in

part on whether law enforcement officers announced

their presence and authority prior to entering.” Wilson

v. Arkansas, 514 U.S. 927, 931 (1995). And the Court

has stated that whether a particular “exigency” justifies

a warrantless search depends on whether “the conduct

of the police preceding the exigency is reasonable” under

13

the Fourth Amendment. Kentucky v. King, 563 U.S. 452,

462 (2011). Disregarding prior police conduct in the

excessive-force context alone would thus create needless and unjustified incongruities in this Court’s Fourth

Amendment jurisprudence.

3. An officer’s knowledge of his past conduct can

contextualize whether a threat existed at the moment

force was used

Although an officer’s past conduct can often be relevant to the assessment of whether his use of force was

reasonable, it does not resolve the ultimate inquiry of

whether “a particular use of force” was reasonable “from

the perspective of a reasonable officer on the scene.”

Graham, 490 U.S. at 396. That inquiry must account for

officers’ need to make “split-second judgments” in “circumstances that are tense, uncertain, and rapidly

evolving.” Id. at 396-397. The in-the-moment facts thus

may have preeminent—but not isolated—importance in

assessing the reasonableness of a use of force, with the

officer’s past conduct and other factors providing necessary context in appropriate cases.

Law-enforcement officers must be able to use force

to protect the public from threats. See Plumhoff,

572 U.S. at 777 (approving use of deadly force to neutralize “a grave public safety risk”). Regardless of what

may have transpired beforehand, officers are extraordinarily unlikely to act unreasonably in defending a group

of innocent bystanders who are in the path of a fleeing

suspect’s speeding car. Similarly, officers are entitled

to defend themselves from danger. See City & County

of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015)

(“Nothing in the Fourth Amendment bar[s] [officers]

from protecting themselves.”). The driver of a car barreling right toward an officer will in most cases present

14

a threat to the officer’s safety to which the officer may

reasonably respond by using force, whatever the officer’s prior conduct may have been.

But the in-the-moment facts will not always be dispositive, and they cannot be hermetically sealed off

from the context in which they arose. As previously discussed, an officer’s attempts to deescalate the situation

or provide warnings before he resorts to the use of force

may bear on the force’s reasonableness. See Puskas v.

Delaware County, 56 F.4th 1088, 1094-1095 (6th Cir.

2023) (finding use of police dog reasonable after considering prior efforts to deescalate); Palacios v. Fortuna,

61 F.4th 1248, 1258-1262 (10th Cir. 2023) (finding use of

force reasonable in light of officers’ prior warnings).

Prior conduct can also demonstrate why seemingly innocuous conduct by a suspect could reasonably be interpreted by an officer as threatening. For example, an

officer who sees a suspect reach into his pocket may

have more reason to perceive a threat in that moment if

he earlier saw the suspect place a gun in that same

pocket. Countless other factors, like knowledge that

the suspect has long been a fugitive from the law, would

likewise bear on the analysis.

Such factors are not a one-way ratchet. There may

be some cases in which the prior context—including the

officer’s own previous conduct—could undercut the apparent in-the-moment reasonableness of an officer’s use

of force. Courts have reasoned that even if an officer

faces a moment of apparent danger, the use of force may

still be unreasonable if leading up to that moment the

officer “acted so far outside the bounds of reasonable

behavior that the deadly force was almost entirely a result of [his] actions.” Estate of Biegert ex rel. Biegert v.

Molitor, 968 F.3d 693, 698 (7th Cir. 2020) (Barrett, J.).

15

For example, an officer who needlessly leaps directly in

front of an accelerating car may reasonably fear for

his safety as the car barrels toward him, but it may

be unreasonable for him to use deadly force to stop the

oncoming driver. See Estate of Starks v. Enyart,

5 F.3d 230, 234 (7th Cir. 1993) (stating that use of deadly

force is unreasonable if the officer unjustifiably “stepped

in front of [the suspect’s] rapidly moving cab, leaving

[him] no time to brake”).

To be sure, factors tending to suggest that an officer’s

actions are unreasonable may have limited weight. An

officer’s use of force is not automatically unreasonable

just because the officer played a role in creating or escalating the dangerous situation, or made a policing

mistake. This Court has recognized, for example, that

it is reasonable for an officer to use deadly force to end

a dangerous car chase, even if the officer contributed to

the danger by continuing the chase rather than letting

the suspect go. See Plumhoff, 572 U.S. at 776 n.3; Scott,

550 U.S. at 385-386. And even if an officer’s negligent

actions are a but-for cause of the dangerous situation, a

suspect’s intervening misconduct may justify the use of

force. See Biegert, 968 F.3d at 698.

Furthermore, as this Court observed in City &

County of San Francisco v. Sheehan, a plaintiff “cannot

establish a Fourth Amendment violation based merely

on bad tactics that result in a deadly confrontation that

could have been avoided.” 575 U.S. at 615 (citation and

internal quotation marks omitted). Similarly, “seizures

based on mistakes of fact” or law “can be reasonable.”

Heien v. North Carolina, 574 U.S. 54, 61 (2014) (mistakes of fact); see id. at 57 (mistakes of law). “To be

reasonable is not to be perfect, and so the Fourth

Amendment allows for some mistakes on the part of

16

government officials, giving them fair leeway for enforcing the law in the community’s protection.” Id. at

60-61 (citation and internal quotation marks omitted).

An officer’s actions in the field do not need to conform

to the training video to be reasonable. And even when

a Fourth Amendment violation occurs, an officer’s reasonable mistakes may be further protected from civil liability by the doctrine of qualified immunity. Sheehan,

575 U.S. at 617.

But at bottom, the “standard of reasonableness at

the moment,” Graham, 490 U.S. at 396, merely frames

how to look at all the relevant circumstances. It does

not prescribe a single-factor, context-independent test

out of step with the “general Fourth Amendment approach” to reasonableness. United States v. Knights,

534 U.S. 112, 118 (2001). Instead, prior circumstances

known to a reasonable officer—including his own

conduct—may provide relevant context for the reasonableness inquiry in either direction.

B. Respondent’s Sole And Exclusive Focus On The Moment

Of The Threat Is Unsound

Respondent has nonetheless defended the decision

below on the theory that the reasonableness inquiry

should look only to “the moment of threat,” “as opposed

to prior conduct.” Br. in Opp. 24. Under that approach,

concluding that the officer reasonably believed that he

was “in danger at the moment of the threat that resulted in the officers’ use of deadly force” ends the inquiry, and no other facts or circumstances are considered. Pet. App. 7a-8a (citation omitted). This Court has

previously rejected efforts to replace the “reasonableness” standard for excessive-force claims with a more

wooden analytical framework. See Scott, 550 U.S. at

383 (“Although respondent’s attempt to craft an easy-

17

to-apply legal test in the Fourth Amendment context is

admirable, in the end we must still slosh our way

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

The Court should reject respondent’s effort as well.

1. This Court’s precedents do not support a blinkered

focus on the moment of the threat alone

Respondent errs in contending (Br. in Opp. 23-24)

that this Court’s decisions foreclose any consideration

of officer conduct preceding the “moment of threat.” To

the contrary, as just discussed, the Court’s precedents

do the opposite.

a. Respondent draws the wrong lesson from the

Court’s emphasis in Graham v. Connor, on how the reasonableness assessment must account for officers’ need

to make “split-second judgments” in “circumstances

that are tense, uncertain, and rapidly evolving.” Br. in

Opp. 23 (quoting Graham, 490 U.S. at 397); id. at 31.

While that emphasis on split-second decision-making

highlights the importance of the moment of the threat,

it does not suggest that all other facts and circumstances should be categorically ignored. Indeed, Graham itself identified “the severity of the crime at

issue”—often a historical fact—as one factor in a nonexhaustive list of “facts and circumstances” that can

bear on reasonableness. 490 U.S. at 396; see Kingsley,

576 U.S. at 397 (citing Graham, 490 U.S. at 396).

Respondent likewise errs (Br. in Opp. 23, 31) in his

interpretation of the Court’s decision in Tennessee v.

Garner. There, a Memphis police officer used deadly

force pursuant to a Tennessee statute that authorized

officers to use “all the necessary means” to stop any

suspected felon who was fleeing or forcibly resisting arrest. Garner, 471 U.S. at 4-5 & n.5 (citation omitted).

The Court held that the statute swept too broadly

18

because it authorized deadly force in certain situations

where such force would be “constitutionally unreasonable.” Id. at 11.

Respondent highlights Garner’s further holding that

the Tennessee statute was not facially unconstitutional,

because “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using

deadly force.” Garner, 471 U.S. at 11. Respondent

reads that language to mean that if an officer’s safety is

in immediate danger, it is automatically reasonable as a

matter of law to use force regardless of any preceding

facts or circumstances. Br. in Opp. 23, 31.

But nothing in the language supports such a crabbed

interpretation. Instead, consistent with the general

concept of “probable cause,” an officer’s “probable

cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others,”

Garner, 471 U.S. at 11, is a “fluid concept[] that take[s]

[its] substantive content from the particular context[] in

which [it is] being assessed,” Ornelas v. United States,

517 U.S. 690, 696 (1996); see Garner, 471 U.S. at 9. And

that context may include historical events like an officer’s preceding actions.

b. Respondent also relies (Br. in Opp. 25-28) on this

Court’s decisions in County of Los Angeles v. Mendez,

supra, and City of Tahlequah v. Bond, 595 U.S. 9 (2021)

(per curiam). But both of those decisions expressly declined to answer the question presented here.

In Mendez, police officers entered a shack on private

property without a warrant, saw a man inside the shack

holding what appeared to be a gun, and fired at two people in the shack. 581 U.S. at 424. The Ninth Circuit

19

determined that the “shooting was reasonable under

Graham.” Id. at 426. But it nevertheless held the officers liable for excessive force based on an idiosyncratic

“provocation rule,” under which a seizure “judged to be

reasonable based on a consideration the circumstances

relevant to that determination” nevertheless could result in liability “on the ground that [officers] committed

a separate Fourth Amendment violation” (there, a warrantless entry) “that contributed to their need to use

force.” Id. at 422-423.

This Court rejected the Ninth Circuit’s provocation

rule, explaining that it “mistakenly conflates distinct

Fourth Amendment claims.” Mendez, 581 U.S. at 428.

In doing so, however, the Court made clear that it was

“declin[ing] to address” whether the inquiry into the

reasonableness of an officer’s use of force itself requires

“taking into account unreasonable police conduct prior

to the use of force that foreseeably created the need to

use it.” Id. at 429 n.*; see ibid. (“All we hold today is

that once a use of force is deemed reasonable under

Graham, it may not be found unreasonable by reference

to some separate constitutional violation.”). And Mendez’s rejection of the Ninth Circuit’s provocation rule

does not implicitly suggest an answer to that separate

question. Mendez rejected the provocation rule because it allowed a “distinct violation” of the Fourth

Amendment, “rather than the forceful seizure itself,” to

“serve as the foundation of the plaintiff ’s excessive

force claim.” Id. at 428. That problem does not exist

when the officer’s prior conduct is evaluated as part of

the reasonableness analysis from the outset in an excessive-force claim.

Bond likewise sheds no light on the question presented here. The petitioner in Bond did “ask[] this

20

Court to clarify whether” the excessive-force inquiry

“may take into account” certain “police conduct prior to

the use of force.” Br. in Opp. 27 (emphasis added;

brackets and internal quotation marks omitted). But in

Bond, as in Mendez, the Court expressly declined to answer that question. 595 U.S. at 12 (“We need not, and

do not, decide whether the officers violated the Fourth

Amendment in the first place, or whether recklessly

creating a situation that requires deadly force can itself

violate the Fourth Amendment.”). Instead, the Court

held that the officers in Bond were entitled to qualified

immunity because they had not violated any “clearly established law.” Id. at 12-14.

c. Finally, respondent relies on several decisions

that discuss policing mistakes. None meaningfully supports his theory.

As noted above (see p. 13, supra), this Court’s decision in Sheehan makes clear that even if police officers

“misjudge[] the situation,” a plaintiff “cannot ‘establish

a Fourth Amendment violation based merely on bad

tactics that result in a deadly confrontation that could

have been avoided.’ ” 575 U.S. at 615 (citation omitted).

Respondent overreads (Br. in Opp. 24-25) that statement. As explained above, while poor law-enforcement

tactics do not alone carry dispositive weight in the reasonableness inquiry, that does not categorically preclude any possible consideration of police conduct prior

to the moment of a threat.

Respondent similarly misinterprets (Br. in Opp. 30)

Scott when he contends that it “discounted the officer’s

prior actions” when assessing his use of force. As discussed above (see p. 12, supra), Scott in fact did the opposite, expressly relying on police actions preceding the

use of force, and the driver’s response, in the

21

reasonableness analysis. Scott thus refutes, rather than

supports, respondent’s theory about the relevance of

prior officer conduct.

Plumhoff, which respondent also cites (Br. in Opp.

31), reiterates Scott’s rejection of “a rule requiring the

police to allow fleeing suspects to get away whenever

they drive so recklessly that they put other people’s

lives in danger.” 572 U.S. at 776 n.3 (emphasis added;

citation omitted). The Court’s recognition that officers

can reasonably decide “to continue the chase” of a recklessly fleeing suspect, ibid., does not suggest that an officer’s prior conduct is entirely off the table in assessing

the reasonableness of a use of force.

2. Focusing only on the moment of the threat makes

little sense and would create administrability

problems

Such a blinkered approach has little to recommend

it. It flouts common sense, because a reasonable officer’s perception of what a suspect might do next could

naturally be informed by the officer’s prior actions toward the suspect. Indeed, when the officer and the suspect have been interacting with one another, the two

parties’ prior actions are necessarily intertwined. And

focusing exclusively on the moment of the threat does

not even provide the advantage of a bright-line rule because it would be difficult to administer in practice.

Focusing only on the “moment of the threat” creates

serious problems of line drawing. In a “rapidly evolving” encounter between officer and suspect, it can be

difficult to pinpoint when the precise moment of the

threat began. See Abraham v. Raso, 183 F.3d 279, 289,

291-292 (3d Cir. 1999) (“[C]ourts are left without any

principled way of explaining when ‘pre-seizure’ events

start and, consequently, will not have any defensible

22

justification for why conduct prior to that chosen moment should be excluded.”). The facts of this case illustrate the point.

Only about five seconds elapsed between Barnes

turning his car back on and respondent firing the first

shot. See Pet. App. 27a. The courts below identified the

“moment of the threat” as the final two seconds of those

five. Id. at 8a, 29a. But the courts could have just as

easily identified the threat as commencing one or two

seconds earlier, when the car started to move forward.

If that were the appropriate “moment of the threat,”

then the court would be free to consider additional circumstances, including more conduct by both parties.

The approach that this Court’s cases have employed,

which focuses on the officer’s perspective at the time

force was applied (not the “moment of the threat”), as

informed by all the relevant circumstances that preceded that moment, avoids such an arbitrary linedrawing exercise.

C. The Court Of Appeals Misapplied The Fourth Amendment

The court of appeals in this case applied the wrong

standard in assessing the reasonableness of respondent’s use of force. Following circuit precedent, the court

focused its reasonableness analysis solely on the

“moment of the threat,” which it deemed to be the two

seconds before respondent shot Barnes. Pet. App. 7a.

It thus based its analysis solely on a two-second,

context-free snippet of the encounter, during which respondent was “clinging to the accelerating” vehicle. Id.

at 7a-8a (citation omitted).

The court of appeals insisted that “[a]ny of the officer[’s] actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry.”

23

Pet. App. 7a-8a (quoting Harris v. Serpas, 745 F.3d 767,

772 (5th Cir.), cert. denied, 574 U.S. 823 (2014)). And

the court did not appear to consider any other circumstances leading up to the shooting either, which might

have shed further light on the reasonableness of respondent’s actions in one way or another.

That was error. Under a proper analysis, the court

should have assessed the excessive-force claim based on

what would have been known to a reasonable officer at

the moment force was used, including preceding events.

Graham, 490 U.S. at 396. Because this Court is “a court

of review, not of first view,” Cutter v. Wilkinson, 544 U.S.

709, 718 n.7 (2005), the appropriate course is to vacate

the decision below and remand to allow the lower courts

to apply the correct framework in the first instance.

See Graham, 490 U.S. at 399 (vacating and remanding

for “reconsideration * * * under the proper Fourth

Amendment standard”).

24

CONCLUSION

The judgment of the court of appeals should be vacated and the case should be remanded for further proceedings.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KRISTEN M. CLARKE

Assistant Attorney General

NICOLE M. ARGENTIERI

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorneys General

ERIC J. FEIGIN

Deputy Solicitor General

ZOE A. JACOBY

Assistant to the Solicitor

General

THOMAS BOOTH

TERESA KWONG

CAROLINE W. TAN

Attorneys

NOVEMBER 2024