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 25, 2024
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No. 23-1239
In the
Supreme Court of the United States
JANICE HUGHES BARNES,
INDIVIDUALLY & AS REPRESENTATIVE OF THE
ESTATE OF ASHTIAN BARNES, DECEASED,
Petitioner,
v.
ROBERTO FELIX, JR., et al.,
Respondents.
On Writ of Certiorari to the
U.S. Court of Appeals for the Fifth Circuit
BRIEF OF AMICUS CURIAE
RESTORE THE FOURTH, INC.
IN SUPPORT OF NEITHER PARTY
MAHESHA P. SUBBARAMAN
Counsel of Record
SUBBARAMAN PLLC
80 S. 8th St., Ste. 900
Minneapolis, MN 55402
(612) 315-9210
mps@subblaw.com
November 25, 2024
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
TABLE OF CONTENTS
Page
Table of Authorities ................................................
ii
Interest of the Amicus Curiae ................................
1
Summary of the Argument .....................................
2
Argument ................................................................
3
I. In excessive-force cases, both the totalityof-the-circumstances test and the momentof-threat test risk obscuring the extent to
which the police brought upon themselves
the need to use force in a given case ...........
3
II. At common law, persons could not justify
force under a necessity that they brought
upon themselves by their own fault ............ 11
III. The modern trend of wrong-house raids
evinces why courts must consider policecreated necessity in excessive-force cases ... 16
IV. Whatever test the Court adopts to resolve
Barnes, the Court should make clear that
in excessive-force cases, courts must give
due regard to whether the force used was
a necessity of the police’s own making ........ 24
Conclusion ............................................................... 27
ii
TABLE OF AUTHORITIES
Page(s)
CASES
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) .......... 6
Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997) ... 25
Baker v. Coburn, 68 F.4th 240 (5th Cir. 2023) .......... 5
Banks v. Hawkins,
999 F.3d 521 (8th Cir. 2021) ............... 7, 10, 25, 26
Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024)..... 4, 5, 6
Bygum v. City of Montgomery,
No. 21-2130, 2023 U.S. App. LEXIS 4507
(4th Cir. Feb. 24, 2023) ......................................... 5
Carpenter v. United States,
585 U.S. 296 (2018) ......................................... 1, 11
Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992) ...... 9
Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993)............... 3
Cole v. Richards, 959 F.3d 1127 (8th Cir. 2020) ...... 24
Culley v. Marshall, 601 U.S. 377 (2024) .................... 1
Estate of Ceballos v. Husk,
919 F.3d 1204 (10th Cir. 2019) ........................... 25
Estate of Stark v. Enyart,
5 F.3d 230 (7th Cir. 1993) ................................... 26
Franklin v. City of Charlotte,
64 F.4th 519 (4th Cir. 2023) ........................ 5, 9, 26
Gardner v. Buerger, 82 F.3d 248 (8th Cir. 1996) ....... 8
iii
TABLE OF AUTHORITIES—cont’d
Page(s)
CASES—CONT’D
Graham v. Connor, 490 U.S. 386 (1989) .................... 3
Hudson v. Michigan, 335 U.S. 586 (2006) ............... 26
Jimerson v. Lewis, 94 F.4th 423 (5th Cir. 2024) ..... 22
Johnson v. United States, 333 U.S. 10 (1948).......... 27
Josselyn v. McAllister, 25 Mich. 45 (1872) ............... 14
Kisela v. Hughes, 584 U.S. 100 (2018) ....................... 3
Lewis v. Inocencio,
No. 23-20098, 2024 U.S. App. LEXIS 1416
(5th Cir. Jan. 22, 2024) ......................................... 5
Lytle v. Bexar Cty., Tex.,
560 F.3d 404 (5th Cir. 2009) ................................. 9
Marlborough v. Stelly,
814 F. App’x 798 (5th Cir. 2020) ......................... 24
McDonald v. United States, 335 U.S. 451 (1948) .... 26
Partridge v. City of Benton,
70 F. 4th 489 (8th Cir. 2023) ................................. 5
Penate v. Sullivan, 73 F.4th 10 (1st Cir. 2023).. 22, 26
Rippy v. State, 39 Tenn. 217 (1858) ......................... 15
Roach v. State, 34 Ga. 78 (1864) .............................. 15
Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996) ................ 8
Semayne’s Case, 77 Eng. Rep. 194 (K.B. 1603) ........ 13
Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996) ....... 26
iv
TABLE OF AUTHORITIES—cont’d
Page(s)
CASES—CONT’D
St. Hilaire v. City of Laconia,
71 F.3d 20 (1st Cir. 1995) .................................. 3, 9
Thomas v. Wellenreuther,
No. 21-1400, 2022 U.S. App. LEXIS 9209
(2d Cir. Apr. 6, 2022) ............................................. 8
Torres v. Madrid, 592 U.S. 306 (2021) ........... 1, 13, 27
Vaiden v. Com., 53 Va. 717 (1855) ........................... 15
Vega-Colon v. Eulizier,
No. 23-1211, 2024 U.S. App. LEXIS 16548
(2d Cir. July 8, 2024) ......................................... 5, 6
Virginia v. Moore, 553 U.S. 164 (2008) .................... 10
Wilson v. Arkansas, 514 U.S. 927 (1995) ................. 13
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. IV .......... 1–5, 7, 10, 11, 17, 25, 27
OTHER AUTHORITIES
1 SIR MATTHEW HALE, HISTORY OF
THE PLEAS OF THE CROWN (1778),
https://tinyurl.com/2s3a7pkx ........................ 12, 13
1 THOMAS WATERMAN, A TREATISE ON THE LAW
OF TRESPASS IN THE TWOFOLD ASPECT OF THE
WRONG AND THE REMEDY 312 (New York:
Baker, Voorhis & Co. 1875) ................................. 14
v
TABLE OF AUTHORITIES—cont’d
Page(s)
OTHER AUTHORITIES—CONT’D
1 WILLIAM HAWKINS, TREATISE OF
THE PLEAS OF THE CROWN (1795)
https://tinyurl.com/ykzzrpvv ............................... 12
2 WORKS OF JOHN ADAMS (C. Adams ed. 1850) .. 14, 15
4 BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND (1765), https://tinyurl.com/34kh2e62 ..... 11
Ann Pierret, Flint Family Says Police Barged Into
Their Home Improperly, ABC-12 NEWS (Flint),
June 8, 2021, https://tinyurl.com/3amwct2v ...... 18
Anthony Ponce, Ring Video Shows Suburban
Police Forcefully Enter Wrong Home in Joliet:
Complaint, FOX 32 (Chi.), Nov. 2, 2023,
https://tinyurl.com/munz2m97 ............................ 18
Bowling Green Couple Reaches Settlement After City
Searches Wrong Home, WKMS (MURRAY STATE),
Apr. 17, 2017, https://tinyurl.com/m8dt3afj ....... 21
Caitlin O’Kane, New Bodycam Footage from
Ohio Police Raid Shows Officers Using FlashBang [Grenade], CBS NEWS, Jan. 17, 2024,
https://tinyurl.com/5n76y8ex .............................. 17
Calls Mount to Drop Charges Against Black
Woman Who Shot Officer During Raid on
Her Home, CBS NEWS, Feb. 10, 2021,
https://tinyurl.com/3nwxva72 ............................. 19
vi
TABLE OF AUTHORITIES—cont’d
Page(s)
OTHER AUTHORITIES—CONT’D
Chicago Police Officers Reveal Major Missteps as
They’re Questioned on Video for Lawsuit About
Raiding Wrong Home, CBS NEWS (Chi.), Oct.
3, 2019, https://tinyurl.com/53rvp8y6 ................. 23
Chicago Police Raided the Wrong Homes
With Guns Drawn, WCBI, Oct. 29, 2019,
https://tinyurl.com/32d44xze ............................... 23
C.J. Ciaramella, Illinois Family Files Lawsuit
After Police Execute Wrong-Door Raid &
Allegedly Detain Them for 6 Hours, REASON,
Nov. 3, 2019, https://tinyurl.com/8h96ubw9 ...... 18
Dave Savini, Samah Assad, et al., [Un]warranted:
A CBS 2 News Documentary, CBS NEWS (Chi.),
Oct. 6, 2019, https://tinyurl.com/bdfvtm22 ......... 22
Diamonds Ford & Maurice Chammah, I ‘Stood
My Ground’—But It Was the Police Raiding My
House, THE MARSHALL PROJECT, Dec. 8, 2023,
https://tinyurl.com/n6u7tkrp............................... 19
Former Houston Officer Found Guilty of Murder
in Deaths of Couple During Drug Raid,
ASSOCIATED PRESS (VIA NBC NEWS), Sept. 25,
2024, https://tinyurl.com/4chta8ua ..................... 20
Garrett Quinn, Worcester SWAT Team
Raids Wrong House, Terrifies Family,
BOSTON MAGAZINE, Aug. 24, 2015,
https://tinyurl.com/2zeffukh ................................ 21
vii
TABLE OF AUTHORITIES—cont’d
Page(s)
OTHER AUTHORITIES—CONT’D
Gianluca Mezzofiore & Amanda Watts, A Tennessee
Man Is Tackled by a SWAT Team in a Raid—
But It’s the Wrong House, CNN, May 25, 2018,
https://tinyurl.com/595ydkhk .............................. 20
Holly Yan, et al., Denver Police Raided the
Wrong House After Officers Relied on a
Phone Tracking App, CNN, Mar. 8, 2024,
https://tinyurl.com/we8ntuzw ............................. 18
Justin Garcia, Deadly Tampa Police Raid
Results in Settlement, SWAT Policy
Changes, TAMPA BAY TIMES, July 26, 2023,
https://tinyurl.com/2hexj58a ............................... 21
Kaylin Jorge, 3 Nashville Police Officers
Decommissioned After Raiding Wrong
Home, FOX-17 (Nash.), Aug. 19, 2020,
https://tinyurl.com/ye6j4y75 ......................... 19, 22
Lauren Petty, Family Sues CPD,
Says Cops Raided Wrong Home &
Traumatized Kids, NBC-5, Aug. 15, 2018,
https://tinyurl.com/4cperbst ................................ 23
Laurent Sacharoff, The Broken Fourth Amendment
Oath, 74 STAN. L. REV. 603 (2022) ................ 16, 17
L.B. HORRIGAN, SELECT AMERICAN CASES
ON THE LAW OF SELF-DEFENSE (1874),
https://tinyurl.com/mp5ywu9t............................. 13
viii
TABLE OF AUTHORITIES—cont’d
Page(s)
CASES—CONT’D
Marlene Lenthang, ‘It’s the Wrong House’: Audio
of Ohio Police Raid That Left a Baby Injured
Raises New Questions, NBC NEWS, Jan. 16,
2024, https://tinyurl.com/bdemr5m4 .................. 17
MASS. HISTORICAL SOCIETY,
Rex v. Corbet–1769–Editorial Note,
https://tinyurl.com/3xuh3kc9 ........................ 14, 15
Minyvonne Burke, Black Woman Handcuffed
Naked in Raid at Wrong Home Set to Get
$2.9 Million from Chicago, NBC NEWS, Dec.
14, 2021, https://tinyurl.com/5ff4mr4e ............... 19
Nichols Bogel-Burroughs, et al., Breonna Taylor
Raid Puts Focus on Officers Who Lie for
Search Warrants, N.Y. TIMES, Aug. 6, 2022,
https://tinyurl.com/3knw99n8 ............................. 23
Peter Martinez, Nashville Police Chief
‘Greatly Disturbed’ After Cops Raid Wrong
Home, CBS NEWS, Aug. 19, 2020,
https://tinyurl.com/mruhmuhx ........................... 19
Shelly Bradbury, Jury Awards $3.76 Million
to Denver Woman Over SWAT Raid of Her
Montbello Home, DENVER POST, Mar. 4, 2024,
https:// tinyurl.com/yt2fpv3f ............................... 18
Sir Robert Peel’s Nine Principles of
Policing,N.Y. TIMES, Apr. 15, 2014,
https://nyti.ms/3uHqCdb ..................................... 27
ix
TABLE OF AUTHORITIES—cont’d
Page(s)
OTHER AUTHORITIES—CONT’D
Talia Kirkland, After Mistaken SWAT Raid,
Pittsburgh Police Make Policy Changes to
Protect Homeowners, WPXI-TV, May 15,
2024, https://tinyurl.com/2sbe36j4 ...................... 17
Tessa Duvall, Breonna Taylor Shooting:
A Minute-by-Minute Timeline, LOUISVILLE
(KY.) COURIER JOURNAL, Sept. 23, 2020,
https://tinyurl.com/4znmpsj2 .............................. 16
Theresa Waldrop, Breonna Taylor Killing, CNN,
Aug. 4, 2022, https://tinyurl.com/mptvxpzc ........ 16
Todd Feurer, Victim of Botched Chicago Police Raid
in 2017 to Get $300,000 Settlement, CBS NEWS,
Oct. 2, 2023, https://tinyurl.com/yezuy35y ......... 20
1
INTEREST OF THE AMICUS CURIAE 1
Restore the Fourth, Inc. is a non-partisan
nonprofit dedicated to robust enforcement of the
Fourth Amendment and related due-process rights.
Restore the Fourth oversees a series of local chapters
whose membership includes lawyers, academics,
advocates, and ordinary citizens. Restore the Fourth
also files amicus curiae briefs in major cases about
Fourth Amendment or due-process rights. E.g., Brief
of Amicus Curiae Restore the Fourth, Inc. in Support
of Petitioners, Culley v. Marshall, 601 U.S. 377
(2024) (No. 22-285); Brief of Amicus Curiae Restore
the Fourth, Inc. in Support of Petitioner, Torres v.
Madrid, 592 U.S. 306 (2021) (No. 19-292).
Restore the Fourth is interested in Barnes
because “[n]eglecting more traditional approaches” in
this case “may mean failing to vindicate the full
protections of the Fourth Amendment.” Carpenter v.
United States, 585 U.S. 296, 405 (2018) (Gorsuch, J.,
dissenting). At issue here is which of two tests should
control Fourth Amendment claims of excessive force.
Neither test, however, guarantees consideration of
whether a police officer’s need to use force was selfcreated—a factor long recognized by the common law
to negate efforts to justify or excuse a use of force as
self-defense, particularly when such force is lethal.
Restore the Fourth submits this traditional approach
should be privileged under whatever test the Court
ultimately settles upon to resolve this case.
1
No counsel for a party wrote this amicus brief in whole or
in part; nor has any person or any entity, other than Restore
the Fourth and its counsel, contributed money intended to fund
the preparation or submission of this amicus brief.
2
SUMMARY OF THE ARGUMENT
Petitioner’s case is not about a choice between a
‘right’ test and ‘wrong’ test for excessive-force claims.
Regardless of which test the Court may adopt here—
either the moment-of-threat test or the totality-of-the
circumstances test—courts may manipulate either
test to ignore the crucial factor on which Petitioner’s
case turns at bottom: whether police officers brought
upon themselves the need to use lethal force.
Common law principles dating back to the
founding era confirm that persons, including officers,
could not justify force under a necessity they created
through their own fault. This was a well-established
limitation on claims of self-defense, particularly for
lethal force. The modern trend of wrong-house raids
then demonstrates the continuing importance of the
common law’s concern for police-created necessity.
Numerous recent cases show police raids on innocent
homes leading to unnecessary police violence, often
due to failures to properly investigate, to announce
officer presence, or to give proper commands.
The Court may thus wish to consider a third
option: the Tenth Circuit’s approach to excessiveforce cases, which explicitly requires courts to review
both the immediate threat that officers faced when
they used force and whether an officer’s own reckless
conduct created the need for force. This approach
affirms the Fourth Amendment’s dual commitment
to protecting persons who posed no immediate threat
to officers and persons who posed a threat only due
to reckless officer conduct. In both cases, police uses
of force epitomize an ‘unreasonable’ seizure.
3
ARGUMENT
I.
In excessive-force cases, both the totalityof-the-circumstances test and the momentof-threat test risk obscuring the extent to
which the police brought upon themselves
the need to use force in a given case.
The Fourth Amendment safeguards “against
unreasonable searches and seizures.” This protection
forbids “excessive force in the course of making an
arrest, investigatory stop, or other ‘seizure.’” Graham
v. Connor, 490 U.S. 386, 389 (1989); see id. at 395–96
(“[T]he Fourth Amendment provides an explicit
textual source of constitutional protection against
this sort of physically intrusive governmental
conduct.”). “[W]hether an officer has used excessive
force requires careful attention to the facts and
circumstances of each particular case . . . .” Kisela v.
Hughes, 584 U.S. 100, 103 (2018) (cleaned up).
Courts have articulated two different tests to
explain what facts and circumstances do (and do not)
matter in deciding excessive-force cases. The totalityof-the-circumstances test provides that courts should
generally “examine the actions of the government
officials leading up to the seizure.” St. Hilaire v. City
of Laconia, 71 F.3d 20, 25–26 (1st Cir. 1995). The
moment-of-threat test, on the other hand, provides
that courts may “scrutinize only the seizure itself,
not the events leading to the seizure.” Cole v. Bone,
993 F.2d 1328, 1333 (8th Cir. 1993). So in the case of
a shooting, the court “focus[es] solely on whether the
officer . . . was acting in self-defense at the moment
of the shooting.” St. Hilaire, 71 F.3d at 26–27.
4
In this case, the moment-of-threat test defeated
Petitioner Janice Hughes Barnes’s excessive-force
claim. See Barnes v. Felix, 91 F.4th 393, 398 (5th Cir.
2024). Police officer Roberto Felix, Jr. shot and killed
Petitioner’s son Ashtian during a traffic stop over toll
violations. See id. at 395. The district court held that
Felix acted reasonably because at the moment of the
shooting—all of two seconds—Ashtian’s vehicle was
moving toward Felix and risked running Felix over.
Id. at 396–97. The court further held that “Officer
Felix’s actions prior to the moment of threat . . . had
‘no bearing’ on the officer’s ultimate use of force.” Id.
The court thus disregarded the fact that a second
before the shooting, Officer Felix needlessly “jumped
onto the [car’s] door sill,” bringing upon himself the
danger that led him to shoot Ashtian. Id.
The Fifth Circuit affirmed. See id. at 397–98.
Judge Higginbotham wrote separately to explain how
Fifth Circuit precedent tied his hands by limiting the
“reasonableness analysis of the Fourth Amendment
to the precise millisecond at which an officer deploys
deadly force.” Id. at 399. Judge Higginbotham goes
on to explain the “blinding” nature of this focus,
obscuring “the officer’s role in bringing about the
‘threat’ precipitating the use of deadly force.” Id. at
398. This leads Judge Higginbotham to conclude:
“the moment-of-threat [test] . . . . lessens the Fourth
Amendment’s protection of the American public,
devalues human life, and ‘frustrates . . . judicial
determination of guilt and punishment.’” Id.
Petitioner’s merits brief echoes this criticism,
declaring: “Judge Higginbotham is right, the moment
of the threat doctrine is profoundly wrong, and this
5
Court should reject it.” Pet’r Br. 3. In Petitioner’s
view, “an officer’s use of force should be analyzed by
the totality of the circumstances, including facts that
immediately precede the moment an officer pulls the
trigger.” Pet’r Br. 13. Otherwise, plaintiffs asserting
excessive-force claims face a “deeply unjust” reality:
a permanent thumb on the scale in the police’s favor,
even when “any danger perceived by [the officer] was
created solely by himself, and not . . . [the plaintiff’s]
actions.” Pet’r Br. 28. Petitioner stresses that the
“Fourth Amendment’s standard of reasonableness” is
not meant to work as “a one-way ratchet.” Id.
Based on this unequivocal criticism, one would
expect that excessive-force plaintiffs virtually never
succeed in the Second, Fourth, Fifth, and Eighth
Circuits—four courts of appeals that expressly follow
the moment-of-threat test. See Barnes, 91 F.4th at
398, 400 & n.13 (Higginbotham, J., concurring). Yet,
in the last year alone (from 2023 to 2024), one finds
repeated examples of excessive-force plaintiffs who
have prevailed in these circuits—including cases that
involve fast-moving circumstances and deadly force. 2
These wins take the form of decisions: (1) affirming a
district court’s denial of an officer’s effort to defeat a
claim of excessive force; or (2) reversing a district
court’s grant of relief to officers in this context.
2
See, e.g., Partridge v. City of Benton, 70 F. 4th 489, 491–
93 (8th Cir. 2023); Baker v. Coburn, 68 F.4th 240, 247–51 (5th
Cir. 2023); Franklin v. City of Charlotte, 64 F.4th 519, 530–34
(4th Cir. 2023); see also, e.g., Vega-Colon v. Eulizier, No. 231211, 2024 U.S. App. LEXIS 16548 (2d Cir. July 8, 2024); Lewis
v. Inocencio, No. 23-20098, 2024 U.S. App. LEXIS 1416 (5th
Cir. Jan. 22, 2024); Bygum v. City of Montgomery, No. 21-2130,
2023 U.S. App. LEXIS 4507 (4th Cir. Feb. 24, 2023).
6
Consider Vega-Colon v. Eulizier, No. 23-1211,
2024 U.S. App. LEXIS 16548 (2d Cir. July 8, 2024)—
a case like Barnes involving an officer who killed a
driver during a traffic stop arising from a minor
traffic violation (misuse of license plates). As Officer
Eulizier “stood near the front” of Anthony VegaCruz’s car, the car “started moving forward.” Id. at
*5. Eulizier fired two shots, killing Vega-Cruz. Id.
The Second Circuit determined “a reasonable jury
could find” that Eulizier used excessive force given
sufficient evidence in the record demonstrating at
the moment of the shooting, Vega-Cruz’s car “was
moving away from Eulizier at a low rate of speed
posing no threat.” Id. at *14. The Second Circuit also
noted the existence of factual disputes for a jury over
whether Eulizier “intentionally stepped in front” of
the car or “could have stepped out of the way.” Id. at
*6–7. So the Second Circuit affirmed the district
court’s denial of relief to Eulizier, explaining Eulizier
could not obtain summary judgment simply because
“he was in close proximity to the vehicle and fired
within seconds of it moving forward.” Id. at *14.
What is going on here? How are excessive-force
plaintiffs winning under the moment-of-threat test
when the test’s “only” function (per the test’s critics)
is “excluding evidence that helps the plaintiff show
the force [used] was excessive?” Abraham v. Raso,
183 F.3d 279, 291 (3d Cir. 1999); see Barnes, 91 F.4th
at 398 (Higginbotham, J., concurring) (the momentof-threat test “ignor[es] relevant facts”). Petitioner’s
answer to this puzzle is: “in some cases, the moment
of the threat doctrine harms officers who act in good
faith, because it excludes facts that explain why an
officer’s conduct was reasonable.” Pet’r Br. 14.
7
To support this assertion, Petitioner cites Banks
v. Hawkins, 999 F.3d 521 (8th Cir. 2021)—a case in
which the Eighth Circuit affirmed a district court’s
denial of relief to an officer who a jury could have
found shot an unarmed homeowner without warning
a second after the homeowner opened the door to the
officer. See id. at 526 (“Vanessa Banks testified that
Hawkins fired . . . the moment Johnny Banks opened
the door . . . .”). So, to win her case, Petitioner asks
the Court to conclude (expressly or tacitly) that a
myriad of other excessive-force plaintiffs should have
been denied relief in their cases. See Pet’r Br. 36 (“A
broader analysis of the totality of the circumstances
. . . may have vindicated the officer’s actions.”).
Amicus respectfully disagrees, leading Amicus
to support neither party. 3 Petitioner reduces her case
to a choice between a ‘right’ test and a ‘wrong’ test.
Such analysis oversimplifies the way in which both
the moment-of-threat test and the totality-of-thecircumstances test have worked in practice over the
years across hundreds of excessive-force cases. This
body of law reveals two problematic assumptions in
Petitioner’s unequivocal advocacy of the totality-ofthe-circumstances test as the only standard capable
of vindicating the Fourth Amendment’s protection of
persons against police use of excessive force.
3
At the certiorari stage, Restore the Fourth joined a Due
Process Institute amici brief in support of Petitioner. This brief
urged review and reversal so “future plaintiffs in Petitioner’s
position have access to the courts.” DPI Cert.-Stage Amici Br.
24. Upon further consideration at the merits stage, Restore the
Fourth still believes that review and reversal are merited—but
not because one excessive-force test is better than the other, as
Petitioner argues (and Respondents will likely argue).
8
First, it is unclear that the moment-of-threat
test requires a categorical disregard of the ways that
an officer’s pre-seizure conduct may have spurred a
needless (and thereby excessive) use of force. As the
Second Circuit puts it: “[t]he reasonableness inquiry
depends . . . upon the officer’s knowledge of
circumstances immediately prior to and at the
moment that he made the split-second decision to
[fire].” Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996)
(bold added). Consistent with this principle, the
Second Circuit affirmed a magistrate judge’s award
of $475,000 in damages to an excessive-force plaintiff
given the shooting officer’s “repeated testimony that
he believed [the plaintiff] was unarmed by the time
of the second gunshot.” Thomas v. Wellenreuther, No.
21-1400, 2022 U.S. App. LEXIS 9209, at *5 (2d Cir.
Apr. 6, 2022) (certain capitalization omitted).
Courts applying the moment-of-threat test have
also observed that while the test “focus[es] on the
seizure itself,” the test still allows courts and juries
to draw “reasonable inferences from evidence about
events surrounding and leading up to the seizure.”
Gardner v. Buerger, 82 F.3d 248, 253 (8th Cir. 1996).
In Gardner, Charles Gardner “cordially invited” the
police to enter his home and an angry confrontation
followed. See id. at 250–51. The police then shot an
unarmed Gardner “in the back of the head.” Id. The
Eighth Circuit reversed a grant of relief to the police
even though Gardner’s widow (the plaintiff) “never
introduced testimony describing the moment Mr.
Gardner was shot.” Id. at 253. The court pronounced
that a jury could still properly infer excessive force
from “uncontradicted testimony that an unarmed
man was shot in the back of the head.” Id.
9
With this in mind, there are times when the
moment-of-threat test proves to be more protective of
persons against excessive force than the totality-ofthe circumstances test. A good example is Franklin
v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023).
“[F]orty-three seconds elapsed between Officer Kerl’s
arrival on the scene and when [Kerl] fatally shot
[Danquirs] Franklin.” Id. at 527. Reversing a grant of
relief to Officer Kerl, the Fourth Circuit held that a
reasonable jury could find that Kerl used excessive
force. Id. at 530–34. At the moment of the shooting,
Officer Kerl brought the need to shoot upon herself
by yelling “inconsistent instruction[s]” at Franklin,
causing Franklin to hesitate. Id. at 533. The Fourth
Circuit rejected Kerl’s effort to downplay her role
insofar as Kerl asked the court to “look beyond the
seconds before she pulled the trigger and consider
Franklin’s general unresponsiveness.” Id.; see Lytle v.
Bexar Cty., Tex., 560 F.3d 404, 413 (5th Cir. 2009)
(“[A]n exercise of force that is reasonable at one
moment can become unreasonable in the next if the
justification for the use of force has ceased.”).
Second, it is unclear that the totality-of-thecircumstances test requires courts to consider the
ways that an officer’s pre-seizure conduct may have
spurred an excessive use of force. Some courts have
said this outright, declaring that application of the
totality-of-the circumstances test means determining
“whether the force used to effect [a given] seizure
was reasonable in the totality of the circumstances,
not whether it was reasonable for the police to
create the circumstances.” Carter v. Buscher, 973
F.2d 1328, 1333 (7th Cir. 1992) (bold added); see also
St. Hilaire, 183 F.3d at 26 (noting this reality).
10
The totality-of-the-circumstances test may also
function in practice to conceal—rather than clarify—
a use of force that the police brought on themselves.
In Banks v. Hawkins, 999 F.3d 521 (8th Cir. 2021),
the panel dissent urges consideration of a host of preseizure circumstances to bury the fact that an officer
brought upon himself the need to use force by failing
to identify himself or giving any warning before he
fired (something he did a second after the excessiveforce plaintiff opened the door). Id. at 531 (Stras, J.,
dissenting). Among the pre-seizure circumstances
that the panel dissent invokes are the facts that the
officer was responding to a “domestic disturbance”
and he “saw a truck parked in the driveway with its
hazard lights flashing.” Id. But as the panel majority
replies, the central fact of Banks still remains that
the police shot an unarmed man in his home without
warning at a point in time when the situation “was
no longer volatile”—and that is “not enough to justify
the use of deadly force. Id. at 527 (majority op.).
In the end, neither the moment-of-threat test
nor the totality-of-the-circumstances test guarantees
judicial consideration of the key fact of Petitioner’s
case: that Officer Felix unnecessarily jumped onto a
moving car, creating the necessity to shoot Ashtian
Barnes. Courts may manipulate either test to ignore
facts demonstrating self-necessitated police uses of
force, making a non-starter of Petitioner’s advocacy
of one test over the other. To solve the problem that
Barnes raises, one must remember the governing
force of a more ancient, fundamental body of law:
“the statutes and common law of the founding era . . .
that the Fourth Amendment was meant to preserve.”
Virginia v. Moore, 553 U.S. 164, 168 (2008).
11
II.
At common law, persons could not justify
force under a necessity that they brought
upon themselves by their own fault.
“Originally, the word ‘unreasonable’ in the
Fourth Amendment likely meant ‘against reason’—as
in “against the reason of the common law.” Carpenter
v. United States, 585 U.S. 296, 355 (2018) (Thomas,
J., dissenting). “At the founding, searches and
seizures were regulated by a robust body of commonlaw rules.” See id. at 355–56. This robust body of
common-law rules included extensive discussion of
when homicide was (and was not) “justifiable.” 4
The common law recognized that “in some cases
homicide is justifiable . . . either for the advancement
of public justice, which without such indemnification
would never be carried on with proper vigor; or, in
such instances where [homicide] is committed for the
prevention of some atrocious crime, which cannot
otherwise [be] avoided.” 5 The common law also held
that “in all these cases, there must be an apparent
necessity on the officer’s side; viz. that the party
could not be arrested or apprehended, the riot could
not be suppressed, the prisoners could not be kept in
hold.” 6 “[W]ithout such absolute necessity,” an
officer’s use of lethal force was “not justifiable.” 7
The common law thus made ‘necessity’ a central
part of evaluating the propriety of an officer’s use of
4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
179 (ch. 14) (1769), https://tinyurl.com/34kh2e62.
5
Id.
6
Id. at 180.
7
Id. (bold added).
4
12
force. The common law further strived to prevent
abuses of this rule. According to William Hawkins,
“[i]t must be owing to some unavoidable necessity, to
which the person who kills another must be reduced
without any manner of fault in himself.” 8
Hawkins went on: “[n]either shall a man in any
case justify the killing [of] another by a pretense
of necessity, unless he were himself wholly without
fault in bringing that necessity upon himself.” 9
So whenever “a person who kills another . . . [took]
occasion, from the appearance of necessity, to execute
his own private revenge, he [was] guilty of murder.” 10
Or put another way: “a private person and, a fortiori,
an officer of justice, who happens unavoidably to kill
another in endeavoring to defend himself . . . may
justify the fact [of homicide], inasmuch as he only
does his duty in aid of the public justice.” 11
Sir Matthew Hale concurred. Hale observed that
“ministers of justice” had “a more special protection
in the execution of their [royal] office than private
persons.” 12 But Hale also stressed that this special
protection had its limits: “if the prisoner makes no
resistance . . . yet the officer . . . strikes the prisoner,
whereof he dies, this is murder, for here was no
assault first made by the prisoner, and so it cannot
be [self-defense] in the officer.” 13 This led Hale to
1 WILLIAM HAWKINS, TREATISE OF THE PLEAS OF THE
CROWN 168 (1795) (bold added), https://tinyurl.com/ykzzrpvv.
9
Id. at 172 (bold added).
10
Id. at 168
11
Id. at 173 (bold added).
12
1 SIR MATTHEW HALE, HISTORY OF THE PLEAS OF THE
CROWN 481 (1778), https://tinyurl.com/2s3a7pkx
13
Id.
8
13
conclude: “[h]e that first assaulted hath done the
first wrong and [having] brought upon himself
this necessity . . . shall not have advantage of
his own wrong to gain the favorable interpretation
of the law that that necessity, which he brought upon
himself should, by way of interpretation be accounted
. . . to save himself from [legal guilt] . . . .” 14
In emphasizing that persons (including officers)
“cannot urge in justification of [a] killing, a necessity
produced by his own unlawful or wrongful act,” the
common law gave force to the general maxim that
“[n]o man shall take advantage of his own wrong.” 15
The common law also developed a host of rules to
deter police-created necessities to use lethal force.
One example is the knock-and-announce rule: “[an
officer] ought to signify the cause of his coming, and
to make request to open doors . . . for the law
without a default in the [home]owner abhors the
. . . breaking of any house (which is for the habitation
and safety of man) . . . .” Wilson v. Arkansas, 514
U.S. 927, 931 (1995) (bold added) (quoting Semayne’s
Case, 77 Eng. Rep. 194, 195 (K.B. 1603)). By first
knocking and announcing their presence, an officer
might avoid the need to use force, “for perhaps [the
homeowner] did not know of the [warrant], of which,
if he had notice . . . he would obey it.” Id.
Another example is the common-law recognition
of an “arrest without touching through a submission
to a show of authority.” Torres v. Madrid, 592 U.S.
306, 314 (2021). This rule made it possible for officers
HALE, supra note 12, at 482 (bold added).
L.B. HORRIGAN, SELECT AMERICAN CASES ON THE LAW OF
SELF-DEFENSE 220, 226 (1874), https://tinyurl.com/mp5ywu9t.
14
15
14
to make arrests without bringing upon themselves
the need to use force, as “no manual touching of the
body or actual force [was] necessary to constitute an
arrest, if the [arrestee submitted].” 16 The rule upheld
that officers were “not obliged to use violence or
menace” when they executed arrests, instead having
“a right to abstain from any unnecessary force.”
Josselyn v. McAllister, 25 Mich. 45, 48 (1872).
The common law’s concern for killings caused by
self-created necessities played a notable role shortly
before the American Revolution. In 1769, James Otis
defended Michael Corbet and several other sailors
charged with murdering British officer Lieutenant
Henry Panton. 17 Panton came aboard Corbet’s ship
“with some sailors,” at which point Panton “asked for
the vessel’s papers” and “commenced a search” for
uncustomed goods. 18 When the search failed to reveal
any contraband, Panton began an unlawful search
for sailors that he could impress into British military
service. 19 Corbet objected. Panton then discharged “a
pistol right in the face of Corbet,” badly wounding
Corbet’s lip. 20 Corbet responded by driving a harpoon
“with all his force” into Panton, killing him. 21
1 THOMAS WATERMAN, A TREATISE ON THE LAW OF
TRESPASS IN THE TWOFOLD ASPECT OF THE WRONG AND THE
REMEDY 312 (New York: Baker, Voorhis & Co. 1875).
17
MASS. HISTORICAL SOCIETY, Rex v. Corbet–1769–Editorial
Note, https://tinyurl.com/3xuh3kc9 (last visited Nov. 24, 2024).
18
Id.
19
See 2 WORKS OF JOHN ADAMS 532 (C. Adams ed. 1850)
(President John Adams’s notes of John Otis’s argument during
the Corbet trial), https://tinyurl.com/yd2zxnbn.
20
2 WORKS OF JOHN ADAMS, supra note 19, at 532.
21
See MASS. HISTORICAL SOCIETY, supra note 17.
16
15
Otis defended Corbet’s actions by arguing that
the entire incident was one of Panton’s own creation:
“[Lieutenant Panton’s] blood must lie at his own
door.” 22 Otis explained: “[i]f Mr. Panton came as a
custom-house officer . . . to search the ship for
uncustomed goods, he had a fair opportunity to do
it.” 23 “[Panton] asked and was told that the hatchways were open; he ordered the lazaretto open, and it
was done, and after this, instead of searching for
uncustomed goods, he proceed[ed] directly to search
for seamen.” 24 Otis maintained “all that Lieutenant
Panton did on board the vessel was tortious and
illegal . . . . [H]e was a trespasser in going down
below, but especially in firing a pistol.” 25 “What could
Corbet expect? Should he stand still and be shot[?]”
The court ultimately acquitted Corbet. 26
American courts assimilated these common-law
precepts. See, e.g., Rippy v. State, 39 Tenn. 217, 219–
20 (1858); Vaiden v. Com., 53 Va. 717, 729–30 (1855).
As one court put it: “[s]uppose I see a man in the act
of shooting me, and to save myself, I rush upon him
. . . ? Would his shooting me be considered an act of
self-defense? . . . True, his shooting me might, at the
moment, be necessary; but it is a necessity of his own
creation, and cannot avail him as a defense.” Roach
v. State, 34 Ga. 78, 85 (1864). This observation then
proves quite prescient given the modern phenomenon
of wrong-house raids that involve just this sequence
of events playing out in homes nationwide.
22
23
24
25
26
2 WORKS OF JOHN ADAMS, supra note 19, at 528.
Id. at 532.
Id.
Id. at 529.
See MASS. HISTORICAL SOCIETY, supra note 17.
16
III. The modern trend of wrong-house raids
evinces why courts must consider policecreated necessity in excessive-force cases.
Forty minutes after midnight on March 13,
2020, three officers burst into Breonna Taylor’s home
in Louisville, Ky. 27 Three minutes later, officers shot
Breonna six times, killing her. 28 Breonna was a 26year-old emergency-room technician and this was her
“first night off after a few consecutive days with 12hour shifts.” 29 Startled out of bed when the police
arrived, Breonna and her boyfriend Kenneth Walker
yelled to ask who was there. 30 Receiving no answer
and fearing for their lives, Kenneth “grabbed a gun
he legally owned and fired.” 31 When the dust settled,
no evidence linked Breonna’s home to narcotics or to
an ex-boyfriend of Breonna’s who the police arrested
the same morning over ten miles away. 32 Meanwhile,
Breonna “bled to death in her hallway.” 33
The police raided the “wrong house”: something
that happens when police search the wrong address
or when police search the right address but without
fair justification. 34 And Breonna Taylor’s case is no
Tessa Duvall, Breonna Taylor Shooting: A Minute-byMinute Timeline, LOUISVILLE (KY.) COURIER JOURNAL, Sept. 23,
2020, https://tinyurl.com/4znmpsj2.
28
Id.
29
Id.
30
Id.
31
Theresa Waldrop, Breonna Taylor Killing, CNN, Aug. 4,
2022, https://tinyurl.com/mptvxpzc.
32
See Duvall, supra note 27.
33
Waldrop, supra note 31.
34
See Laurent Sacharoff, The Broken Fourth Amendment
Oath, 74 STAN. L. REV. 603, 611 (2022).
27
17
outlier. 35 In recent years, police have raided dozens
of wrong houses, often with severe results:
•
Courtney Price (2024): “An Ohio toddler was
sent to the hospital with burns and was
struggling to breathe after police raided what
may have been the wrong address and used
flash-bang devices, according to the boy’s
mother who shared doorbell [camera] footage
that contradicts the police account.” 36
•
Kelly Angell (2023): “[D]ozens of [Pittsburgh]
SWAT officers . . . surrounded Kelly Angell’s
home. Inside were Angell’s spouse and five
daughters, one of whom is autistic . . . . ‘I kept
hearing them say 1102 Paulson Avenue, and I
immediately said there is a mistake, you have
the wrong address,’ Angell said.” 37
•
Ruby Johnson (2022): “[Denver] officers
smashed the door to [Johnson’s] garage . . . ,
broke apart a ceiling panel, damaged a
35
Police commit wrong-house raids so often that Professor
Laurent Sacharoff has examined how a common-law reading of
the Fourth Amendment’s oath-or-affirmation requirement for
search warrants might help to prevent such raids in the future.
See Sacharoff, supra note 34, at 611–19, 678–86.
36
Marlene Lenthang, ‘It’s the Wrong House’: Audio of Ohio
Police Raid That Left a Baby Injured Raises New Questions,
NBC NEWS, Jan. 16, 2024, https://tinyurl.com/bdemr5m4; see
also Caitlin O’Kane, New Bodycam Footage from Ohio Police
Raid Shows Officers Using Flash-Bang [Grenade], CBS NEWS,
Jan. 17, 2024, https://tinyurl.com/5n76y8ex.
37
Talia Kirkland, After Mistaken SWAT Raid, Pittsburgh
Police Make Policy Changes to Protect Homeowners, WPXI-TV,
May 15, 2024, https://tinyurl.com/2sbe36j4.
18
collectible doll and left the house in shambles.
The officers found nothing. Johnson had
nothing to do with . . . stolen goods . . . .” 38
•
Adela Carrasco (2021): “[Joliet, Ill.] officers
barged into the bedrooms of [Adela] Carrasco’s
grandchildren, who ranged in age from 12 to
their early twenties, and pointed guns at them
while shouting obscenities. There was only one
problem: [t]he search warrant for [Elian] Raya
listed his address as 226 South Comstock.
Carrasco lived at 228 South Comstock.” 39
•
Renee Dunigan (2021): “[When Michigan
state] troopers broke down the door . . . .
Dunigan, her daughter and grandchildren
ages 14, 10 and 3 were inside . . . . [A]ll five of
them complied and tried to ask what was
going on. . . . [P]olice left the residence and
admitted they were at the wrong house.” 40
Shelly Bradbury, Jury Awards $3.76 Million to Denver
Woman Over SWAT Raid of Her Montbello Home, DENVER
POST, Mar. 4, 2024, https:// tinyurl.com/yt2fpv3f; see also Holly
Yan, et al., Denver Police Raided the Wrong House After Officers
Relied on a Phone Tracking App, CNN, Mar. 8, 2024,
https://tinyurl.com/we8ntuzw (“Denver police relied solely on
Apple’s ‘Find My” app and stormed the wrong home.”).
39
C.J. Ciaramella, Illinois Family Files Lawsuit After Police
Execute Wrong-Door Raid & Allegedly Detain Them for 6
Hours, REASON, Nov. 3, 2019, https://tinyurl.com/8h96ubw9; see
also Anthony Ponce, Ring Video Shows Suburban Police
Forcefully Enter Wrong Home in Joliet: Complaint, FOX 32
(Chi.), Nov. 2, 2023, https://tinyurl.com/munz2m97.
40
Ann Pierret, Flint Family Says Police Barged Into
Their Home Improperly, ABC-12 NEWS (Flint), June 8, 2021,
https://tinyurl.com/3amwct2v.
38
19
•
Diamonds Ford (2020): “[Ford] never heard
the [Jacksonville, Fla.] SWAT officers identify
themselves . . . and thought she was firing at
an intruder, as evidenced by the fact that Ford
called 911 . . . . [She] awoke to . . . [a] bedroom
window being broken [by officers].” 41
•
Anonymous Family (2020): “[Nashville]
officers, with guns drawn, breach[ed] the door
of [an innocent family’s] home at 6:05 a.m.
. . . . [Police] Chief John Drake said he’s deeply
disturbed by the body footage of the raid and
believes the officers took shortcuts, saying the
[officers’] information was ‘stale.’” 42
•
Anjanette Young (2019): “[Young] sobbed
and told [Chicago] officers that they were at
the wrong home. . . . [O]fficers realized about a
minute after they entered . . . that the target
was not present and was not associated with
Young’s address . . . [but Young] remained
handcuffed for about 17 minutes.” 43
41
Calls Mount to Drop Charges Against Black Woman Who
Shot Officer During Raid on Her Home, CBS NEWS, Feb. 10,
2021, https://tinyurl.com/3nwxva72; see also Diamonds Ford &
Maurice Chammah, I ‘Stood My Ground’—But It Was the Police
Raiding My House, THE MARSHALL PROJECT, Dec. 8, 2023,
https://tinyurl.com/n6u7tkrp (first-hand account).
42
Kaylin Jorge, 3 Nashville Police Officers Decommissioned
After Raiding Wrong Home, FOX-17 (Nash.), Aug. 19, 2020,
https://tinyurl.com/ye6j4y75; see also Peter Martinez, Nashville
Police Chief ‘Greatly Disturbed’ After Cops Raid Wrong Home,
CBS NEWS, Aug. 19, 2020, https://tinyurl.com/mruhmuhx.
43
Minyvonne Burke, Black Woman Handcuffed Naked in
Raid at Wrong Home Set to Get $2.9 Million from Chicago, NBC
NEWS, Dec. 14, 2021, https://tinyurl.com/5ff4mr4e.
20
•
Dennis Tuttle (2019): “A jury found [Houston
police officer] Gerald Goines guilty of two
counts of murder in the . . . deaths of Dennis
Tuttle, 59, and his 58-year-old wife Rhogena
Nicholas. The couple, along with their dog,
were fatally shot after officers burst into their
home using a ‘no-knock’ warrant . . . .” 44
•
Spencer Renck (2018): “[DEA agents] crept
up to a house in Cleveland, Tennessee, before
dawn . . . [and] burst inside. . . . [T]hey opened
the basement door and found a man with a
gun. They tackled him and told him he was
under arrest, wanted for murder. . . . [I]t was
the wrong house and the wrong man.” 45
•
Sharnia Phillips (2017): “[Chicago police]
raid[ed] the wrong home . . . while searching
for gang members and guns, forcing an
innocent woman out into the cold . . . . [P]olice
were searching for the grandchildren of
[Phillips’] former tenant, who had not lived at
the home in at least six months.” 46
•
Michael & Stacie Hutchison (2016): “[The
Hutchisons] reached a $5,000 settlement with
44
Former Houston Officer Found Guilty of Murder in Deaths
of Couple During Drug Raid, ASSOCIATED PRESS (VIA NBC
NEWS), Sept. 25, 2024, https://tinyurl.com/4chta8ua.
45
Gianluca Mezzofiore & Amanda Watts, A Tennessee Man
Is Tackled by a SWAT Team in a Raid—But It’s the Wrong
House, CNN, May 25, 2018, https://tinyurl.com/595ydkhk.
46
Todd Feurer, Victim of Botched Chicago Police Raid in
2017 to Get $300,000 Settlement, CBS NEWS, Oct. 2, 2023,
https://tinyurl.com/yezuy35y.
21
the [Kentucky] city of Bowling Green after
police erroneously served a search warrant on
their home. . . . [The] Hutchison[s] were forced
to the floor of their home and handcuffed after
police breached the front door . . . .” 47
•
Marianne Dianzand (2015): “[Worcester,
Mass. police] handcuffed Dianzand while she
was naked in front of her two daughters, ages
seven and 18 months. Dianzand was frisked by
a female officer and left naked for over ten
minutes while officers determined if they were
in the correct apartment.” 48
•
Jason Westcott (2014): “Acting on false
information from an unreliable informant,
[Tampa, Fla.] cops broke into Westcott’s house
while he and his boyfriend were sleeping.
Minutes later, Westcott was dead, his body
riddled with shotgun and pistol bullets.” 49
And that’s just the beginning. CBS News in
Chicago reports that after receiving their “first tip”
in 2018 about Chicago police “wrongly raiding a
family’s home,” the story soon became “bigger than
47
Bowling Green Couple Reaches Settlement After City
Searches Wrong Home, WKMS (MURRAY STATE), Apr. 17, 2017,
https://tinyurl.com/m8dt3afj.
48
Garrett Quinn, Worcester SWAT Team Raids Wrong
House, Terrifies Family, BOSTON MAGAZINE, Aug. 24, 2015,
https://tinyurl.com/2zeffukh.
49
Justin Garcia, Deadly Tampa Police Raid Results in
Settlement, SWAT Policy Changes, TAMPA BAY TIMES, July 26,
2023, https://tinyurl.com/2hexj58a.
22
just one case.” 50 The news station uncovered “more
than a dozen incidents—with doors broken, homes
ransacked and innocent families left traumatized.” 51
Such discoveries bear out Justice Robert Jackson’s
sage observation that “there are many unlawful
searches of homes . . . of innocent people which turn
up nothing incriminating, in which no arrest is
made, about which courts do nothing, and about
which we never hear.” Brinegar v. United States, 338
U.S. 160, 181 (1949) (Jackson, J., dissenting).
Careful examination of these wrong-house raids,
in turn, reveals a troubling common denominator:
police creating situations leading to a wrongful use of
force that was entirely preventable. Like the Texas
SWAT commander who “[did] not even check the
number of [a] house before instructing the SWAT
team to execute [a search] warrant.” Jimerson v.
Lewis, 94 F.4th 423, 431 (5th Cir. 2024) (Dennis, J.,
dissenting). 52 Or the Tennessee officers who—by the
police chief’s own admission—“did not exercise due
diligence in confirming that the . . . subject of [a]
search” even lived at a wrongly-raided apartment. 53
See, e.g., Penate v. Sullivan, 73 F.4th 10, 22 (1st Cir.
2023) (“[T]he police did not investigate who lived at
the apartment, and . . . having failed to do so . . .
used a SWAT team to force the door and enter
without knocking and with guns drawn.”).
50
Dave Savini, Samah Assad, et al., [Un]warranted: A CBS
2 News Documentary, CBS NEWS (Chi.), Oct. 6, 2019,
https://tinyurl.com/bdfvtm22.
51
Id.
52
The Jimerson plaintiffs have filed a certiorari petition
with the Court. See Jimerson v. Lewis, No. 24-473 (U.S.).
53
Jorge, supra note 42 (quoting police chief John Drake).
23
Or take the case of the Mendez family. Chicago
police burst into the Mendez home, aiming guns at 9year-old Peter Mendez, his little brother Jack, and
their parents. 54 In “body camera footage,” officers can
be “heard whispering that they were in the wrong
apartment, but that didn’t stop them from searching
the home and Peter’s school backpack.” 55
Here’s how Chicago police obtained the warrant
for the raid. Officer Joe Cappello “made a drug arrest
the day before and flipped that suspect into becoming
a confidential informant called a John Doe.” 56 “The
John Doe then gave Cappello the name and an
address . . . of a so-called major drug dealer. But
Cappello never investigated to see if John Doe’s tip
was even true or if the address was correct.” 57
Then there are wrong-house raids where the
police make force necessary through outright lies.
Breonna Taylor might be alive today had police not
fabricated much of the evidence spurring their raid. 58
While there is no easy fix for this problem, ensuring
that police-created necessity must be accounted for in
excessive-force cases is a good place to start.
54
Lauren Petty, Family Sues CPD, Says Cops Raided
Wrong Home & Traumatized Kids, NBC-5, Aug. 15, 2018,
https://tinyurl.com/4cperbst.
55
Chicago Police Raided the Wrong Homes With Guns
Drawn, WCBI, Oct. 29, 2019, https://tinyurl.com/32d44xze.
56
Chicago Police Officers Reveal Major Missteps as They’re
Questioned on Video for Lawsuit About Raiding Wrong Home,
CBS NEWS (Chi.), Oct. 3, 2019, https://tinyurl.com/53rvp8y6.
57
Id.
58
See Nichols Bogel-Burroughs, et al., Breonna Taylor Raid
Puts Focus on Officers Who Lie for Search Warrants, N.Y.
TIMES, Aug. 6, 2022, https://tinyurl.com/3knw99n8.
24
IV. Whatever test the Court adopts to resolve
Barnes, the Court should make clear that
in excessive-force cases, courts must give
due regard to whether the force used was a
necessity of the police’s own making.
Petitioner asks the Court to hold that courts
“should determine the reasonableness of [an officer’s]
seizure based on the totality of the circumstances.”
Pet’r Br.19. But even if the Court does this, nothing
prevents the Fifth Circuit on remand from declaring
the ‘totality of the circumstances’ does not include
police-created necessity. In Marlborough v. Stelly,
814 F. App’x 798 (5th Cir. 2020), the Fifth Circuit
does effectively this in declaring “the law of the Fifth
Circuit . . . reject[s] the idea that a police officer uses
excessive force simply because he has manufactured
the [very] circumstances that gave rise to the fatal
shooting.” Id. at 803 (punctuation omitted).
Nothing likewise prevents the Fifth Circuit from
applying the totality-of-the-circumstances test in this
case (or any other) by overweighting facts related to
“the moment of the threat” and underweighting facts
showing “[the police’s] own reckless conduct created
the need to use deadly force.” Id. And so, for all the
work that Petitioner has done to prove the totalityof-the-circumstances test is the ‘right’ test, adoption
of this test by the Court may leave Petitioner no
better off. And other excessive-force plaintiffs may be
left worse off to the extent they would have benefited
from the moment-of-threat test’s clarifying focus in
laying bare wrongful uses of force against unarmed
or non-threatening persons. E.g., Cole v. Richards,
959 F.3d 1127, 1130–31, 1133 (8th Cir. 2020).
25
What excessive-force plaintiffs really need—and
what the Fourth Amendment’s common-law roots
direct—is a holding that courts both can and must
consider whether a challenged use of police force was
a necessity of the police’s own making. Tenth Circuit
law exemplifies this approach. The Tenth Circuit has
held that excessive force “depends both on whether
the officers were in danger at the precise moment
that they used force and on whether [the officers’]
own reckless or deliberate conduct during the seizure
unreasonably created the need to use such
force.” Allen v. Muskogee, 119 F.3d 837, 840 (10th
Cir. 1997) (bold added); Estate of Ceballos v. Husk,
919 F.3d 1204, 1213–15 (10th Cir. 2019) (reaffirming
Allen’s approach to excessive-force cases).
The Tenth Circuit’s two-step approach does
justice by excessive-force victims like the victim in
Banks v. Hawkins, 999 F.3d 521 (8th Cir. 2021) who
at the ‘moment of threat’ was unarmed and who the
police shot without any warning a second after the
victim opened his front door. See id. at 526–27. And
this two-step approach does justice by an excessiveforce victim like the victim in Estate of Ceballos v.
Husk, 919 F.3d 1204 (10th Cir. 2019) who police shot
and killed based on a necessity of their own creation:
“approach[ing] [the victim] quickly, screaming at [the
victim] . . . and refusing to give ground as [the
victim] approached the officers.” Id. at 1216.
If common-law history and the prevalence of
wrong-house raids are insufficient to justify adoption
of an approach like the Tenth Circuit’s, a final reason
is that the Fourth Amendment was never meant to
be a safe haven for “unconstitutional . . . method[s]
26
of law enforcement so reckless and so fraught with
danger” as to “discredit . . . law enforcement” itself.
McDonald v. United States, 335 U.S. 451, 461 (1948)
(Jackson, J., concurring). And experience teaches the
many reckless ways that police may create the need
to use force, leading to severe injury or death:
•
Failure to investigate. See, e.g., Penate, 73
F.4th at 22 (“[T]he police did not investigate
who lived at the apartment . . . .”).
•
Failure to knock or announce presence.
See Hudson v. Michigan, 335 U.S. 586, 594
(2006) (“An unannounced [police] entry [into a
home] may provoke violence in supposed selfdefense by the surprised resident.”); see also,
e.g., Sledd v. Lindsay, 102 F.3d 282, 288 (7th
Cir. 1996) (police used excessive force when
they made an unannounced home entry).
•
Failure to give coherent commands. See,
Franklin, 64 F.4th at 525 (“[When] abstruse
commands require the suspect to divine their
meaning, the law cannot be so forgiving.”).
•
Failure to give time to comply. See, e.g.,
Banks, 999 F.3d at 527 (“Hawkins fired . . .
instinctively, without a warning or . . . a ‘splitsecond’ pause to assess the situation.”).
•
Failure to move out of harm’s way. See,
e.g., Estate of Stark v. Enyart, 5 F.3d 230, 234
(7th Cir. 1993) (officer acted unreasonably
when he jumped in front of a speeding cab,
which led the police to shoot the driver).
27
In determining what the Fourth Amendment
demands, it is always worth remembering that “the
police are the public and the public are the police.” 59
By requiring courts to give due regard to how police
may bring upon themselves an otherwise preventable
use of force, the Court vindicates a common-law rule
that governed everyone, officer or not. And therein
lies the fundamental distinction “between our form of
government, where officers are under the law, and
the police-state where they are the law.” Johnson
v. United States, 333 U.S. 10, 17–18 (1948).
CONCLUSION
“[T]he Fourth Amendment preserves personal
security with respect to methods of apprehension old
and new.” Torres v. Madrid, 592 U.S. 306, 316–17
(2021). Any excessive-force test that the Court may
adopt in Barnes should accordingly make clear that
the Fourth Amendment preserves personal security
against police who create the need to use force.
Respectfully submitted,
MAHESHA P. SUBBARAMAN
Counsel of Record
SUBBARAMAN PLLC
80 S. 8th St., Ste. 900
Minneapolis, MN 55402
(612) 315-9210
Counsel for Amicus Curiae
Sir Robert Peel’s Nine Principles of Policing, N.Y. TIMES,
Apr. 15, 2014, https://nyti.ms/3uHqCdb (quoting tenets stated
in 1829 by the founder of modern municipal policing).
59
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.