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.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

THE LOS ANGELES COUNTY

POLICE CHIEFS’ ASSOCIATION

IN SUPPORT OF RESPONDENTS

J. Scott Tiedemann

Counsel of Record

David A. Urban

Liebert Cassidy Whitmore

6033 West Century Boulevard, 5th Floor

Los Angeles, CA 90045

(310) 981-2000

stiedemann@lcwlegal.com

Attorneys for Amici Curiae

Los Angeles County Police

Chiefs’ Association

130778

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I.

THE MOMENT OF THREAT DOCTRINE

HELPS PROTECT LIVES OF PEACE

OFFICERS A ND THE PUBLIC IN

THE FACE OF DEADLY THREATS

AND RISKS TO THEIR PHYSCIAL

SAFETY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. R E J EC T I NG T H E MOM EN T OF

THREAT DOCTRINE WOULD BE

INCONSISTENT WITH THIS COURT’S

HOLDING IN COUNTY OF LOS ANGELES

V. MENDEZ, W HICH REJ ECTED

T H E P R O V O C A T I O N RU L E — A

SIMILAR DOCTRINE UNDER WHICH

A PRIOR FOURTH A MENDMENT

V IOL A T ION T R A N S F OR M E D A

LEGITIMATE USE OF FORCE INTO

AN ILLEGITIMATE ONE . . . . . . . . . . . . . . . . . 8

ii

Table of Contents

Page

III. A P PLY I NG T H E T O TA L I T Y OF

T H E C I R C U M S T A N C E S RU L E

T O OV ERRI DE T H E MOM EN T

OF THREAT DOCTRINE IS

COU NTERPRODUCTI V E TO

CURRENT TRAINING EFFORTS . . . . . . . . 11

IV. E X I S T I N G S T A N D A R D S , A N D

R E C E N T R E F O R M S I N L AW

EN F ORCEM EN T, A LR E A DY

H EL P PR E V EN T E XCE S SI V E

USE OF FORCE . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Barnes v. Felix,

91 F.4th 393 (5th Cir. 2024) . . . . . . . . . . . . . . . . . 2, 4, 5

County of Los Angeles v. Mendez,

581 U.S. 420 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 3, 8, 9

Davis v. Scherer,

468 U.S. 183 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Deorle v. Rutherford,

272 F.3d 1272 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . 10

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

Hector v. Watt,

235 F.3d 154 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 7

Miranda-Rivera v. Toledo-Davila,

813 F.3d 64 (1st Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 6, 7

Monell v. Department of Social Services,

436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . . . . 7, 11, 16

Skelly v. State Personnel Board,

15 Cal. 3d 194 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iv

Cited Authorities

Page

Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 10

Velazquez v. City of Long Beach,

793 F.3d 1010 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . 16

Constitutional Provisions

U.S. Const. amend. IV . . . . . . . . . . . . . . 3, 6, 7, 8, 9, 14, 17

Statutes, Rules and Regulations

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 11, 17

Cal. Penal Code § 832.7(b)(1) . . . . . . . . . . . . . . . . . . . . . . 17

Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Guiding Principles on Use of Force, Police

Executive Research Forum (March 2016)

( h t t p : // w w w. p o l i c e f o r u m . o r g / a s s e t s /

guidingprinciples1.pdf) . . . . . . . . . . . . . . . . . . . . 12, 13

S.4847 “Law Enforcement Scenario-Based

Training for Safety and De-Escalation Act

of 2022,” (https://w w w.congress.gov/ bill/

117th-congress/senate-bill/4847/text) . . . . . . . . . . . . 12

v

Cited Authorities

Page

William J. Stuntz, War rants and Four th

Amendment Remedies, 77 Va. L. Rev. 881

(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1

The Los Angeles County Police Chiefs’ Association

respectfully submits this brief amicus curiae, pursuant

to Supreme Court Rule 37 and the written consent of all

parties.1

INTERESTS OF THE AMICUS CURIAE

The Los Angeles County Police Chiefs’ Association

(“LACPCA”) is a nonprofit mutual benefit corporation

consisting of the Police Chief Executives of the 45

independent cities in Los Angeles County. LACPCA focuses

on advancing the science and art of police administration

and crime prevention in Los Angeles County; coordinating

the implementation of law enforcement efforts by local

law enforcement leaders; and developing, teaching, and

disseminating professional law enforcement practices.

One of LACPCA’s missions is to ensure that all 45

independent cities in Los Angeles County provide their

peace officers with ongoing training that is thorough,

effective, and consistent with the law and best practices.

Thus, the members of LACPCA monitor and evaluate case

law and legislation through the lens of how they will train

officers on new legal developments. LACPCA has a strong

interest in this case because this Court’s recognition of

the “moment of threat” doctrine at issue would greatly

support law enforcement in efforts to protect the safety

of officers and the general public and in providing clear

and effective training.

1. Petitioners and Respondents have consented to the filing

of this brief amicus curiae. Counsel for amicus curiae authored

this brief in its entirety. No person or entity, other than the amicus

curiae, its members, or its counsel, made a monetary contribution

to the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

The “moment of threat” doctrine applied by the Fifth

Circuit in this case, see Barnes v. Felix, 91 F.4th 393,

394 (5th Cir. 2024), serves to protect the safety of peace

officers who must make split-second decisions on use of

force. Petitioners ask that this Court reject the doctrine

in favor of a wholesale application of the “totality of the

circumstances” rule that evaluates officer conduct using

a broader frame of reference, including the officer’s

culpability in creating the threat in question. But this

Court’s rejecting the moment of threat doctrine would

defeat sound public policy by causing officers to operate

in situations in which they must choose between the

potential for ruinous civil liability for committing a Fourth

Amendment violation on the one hand and on the other

hand acting against an aggressor to protect themselves

or members of the public. Under the totality of the

circumstances test as envisioned by Petitioner, once an

officer has committed conduct culpable under the Fourth

Amendment in creating a dangerous situation, the officer

enters a legal zone in which any use of force by them—

however reasonable, and even urgently necessary—is a

fortiori unlawful.

Examples of situations an officer could face include

an officer mistakenly stopping a motorist when the officer

should not have done so. If the motorist suddenly draws a

gun on the officer, is the officer prevented from using force

to protect themselves? Another example is if an officer

attempts to make an arrest in the absence of sufficient

cause to do so. Is the officer then subject to whatever

threat the subject presents and unable to respond?

3

In situations where lives are at stake, many would

agree that the officer has only one option when confronted

with a threat: to act decisively to protect those in danger.

But only a moment of hesitation for law enforcement can

be enough to decisively impact the situation for the worse.

The law should allow officers to act to protect themselves

and others when it is reasonable to do so in the instant

they need to make a decision. See infra Section I.

Dispensing with the moment of threat doctrine in favor

of wholesale application of the totality of circumstances

rule also constitutes a flawed application of constitutional

law. As this Court held in County of Los Angeles v.

Mendez, 581 U.S. 420 (2017), a use of force that qualifies

as legitimate under the Fourth Amendment should not

transform into an illegitimate one based only on the

existence of a violation earlier in the chain of causation.

Id. at 422-23. Yet that is what rejecting the moment of

threat doctrine would do—it would allow circumstances

outside the threat window to de-legitimize an officer’s

use of force that qualified as legitimate in the instant that

decision making had to occur. It would also wrongly allow

subjective considerations from outside the threat window,

for example features of the situation that might lower the

level of fear one would experience, to somehow render

wrongful an objectively viable use of force. See Graham

v. Connor, 490 U.S. 386, 396 (1989); infra Section II.

Also, the moment of threat doctrine operates in a

manner consistent with prevalent forms of officer threat

training, which law enforcement professionals have

designed to best to protect safety of all concerned when

officers conduct their duties in the field. An important form

of training is “situation based.” As part of it, officers must

operate in the narrow circumstances officers face when

4

confronted with making critical choices. Officers are not

expected to evaluate the totality of the circumstances, but

only think in the moment. The law should not dissuade

them from doing so. See infra Section III.

Finally, this Court’s recognizing the moment of

threat doctrine will not remove important restraints

on officer conduct and somehow condone reckless use of

force. Existing legal and professional standards apply

strenuous safeguards to prevent officer misconduct, and

have undergone significant enhancement in recent years.

Municipal procedures allow for discipline, including

termination, of officers who engage in improper use

of force, and civil rights liability standards can render

municipalities liable in some circumstances should they,

for example, continue to retain officers with demonstrated

lack of proficiency or judgment in use of force. In

addition, in California in particular, extensive oversight

and transparency legislation has passed to facilitate law

enforcement agencies’ eliminating excessive use of force.

This Court’s rejecting the well-reasoned moment of threat

doctrine is not necessary to curb excessive force and will

in fact not do so. See infra Section IV.

ARGUMENT

I.

THE MOMENT OF THREAT DOCTRINE HELPS

PROTECT LIVES OF PEACE OFFICERS AND

THE PUBLIC IN THE FACE OF DEA DLY

THREATS AND RISKS TO THEIR PHYSCIAL

SAFETY.

In Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024), the

Fifth Circuit held that the district court had properly

granted summary judgment in favor of Officer Robert

5

Felix in a 42 U.S.C. section 1983 action against him for

the shooting death of Ashtian Barnes. Id. at 394. Felix

had stopped Barnes for toll violations when Barnes turned

his vehicle back on, at which point Officer Felix jumped

onto the door sill of the vehicle, shouted, and pointed

his gun at Barnes; during this time, the car started to

move rapidly to enter freeway traffic. Id. at 395. Within

two seconds, the officer then shot Barnes killing him.

Id. In affirming summary judgment, the Fifth Circuit

applied the “moment of threat” doctrine, in which the

reasonableness of the officer’s conduct for purposes of

determining a Fourth Amendment violation is viewed

within the circumstances immediately leading up to the

use of force. Id. at 397-98.

Judge Higginbotham’s concurring opinion describes

that several other circuits have recognized the doctrine:

“[t]he Fifth Circuit’s approach to the reasonableness

analysis is joined by the Second, Fourth, and Eighth

Circuits.” Barnes, 91 F.4th at 400 (Higginbotham, J.,

concurring). But other circuits take a different approach

emphasizing the totality of the circumstances. Id. at 400

n.13. Judge Higginbotham criticizes the doctrine, calling

for this Court to reject it and take up this case for review

in order to do so. Id. at 398-401.

But urgent practical considerations support the

moment of the threat doctrine, not only to protect officers’

lives in emergency situations, but also to allow them

better to protect members of the public and perform more

effective policing.

As this Court has previously explained, it is important

that officers have the ability to “reasonably [ ] anticipate

6

when their conduct may give rise to liability for damages.”

Anderson v. Creighton, 483 U.S. 635, 646 (1987) (quoting

Davis v. Scherer, 468 U.S. 183, 195 (1984)). Similarly,

effective law enforcement training informs officers of the

potential risks and consequences of their mistakes. While

the methods for use of force training continue to evolve, the

law is clear that an officer may be held personally liable for

using excessive force. See, e.g., Miranda-Rivera v. ToledoDavila, 813 F.3d 64, 73 (1st Cir. 2016). This means personal

financial responsibility for causing someone harm.

This Court’s recognizing the moment of threat

doctrine, and in doing so, applying it to law enforcement

nationwide, would bring well-needed clarity for law

enforcement officers in carrying out their duties. In

circuits like the Ninth Circuit that do not recognize the

doctrine, law enforcement agencies in conducting training

face the perplexing task of trying to explain to their

officers that if a situation calls for force against a civilian,

and officers use the appropriate level of force, the officers

nevertheless may still suffer liability to that person for

damages if the officers made a mistake leading up to the

situation, i.e., culpably placed themselves in a situation

calling for such use of force. Moreover, the officers cannot

expect the amount of damages to be proportional to the

scope of their mistake.

In terms of the deterrent purposes of allowing

civil liability for officer Fourth Amendment violations,

it is superfluous and redundant to apply the totality of

circumstances rule to generate liability when the moment

of threat doctrine would preclude it. There are already

rules in place to protect citizens against warrantless

searches and excessive force in violation of the Fourth

7

Amendment. The exclusionary rule, for example, serves

to deter such violations. See, e.g., Hector v. Watt, 235 F.3d

154, 159 (3d Cir. 2000) (“[T]he point of the exclusionary

rule is to deter violations of the Fourth Amendment. . . .”).

Personal civil liability under 42 U.S.C. section 1983 also

serves a clear deterrent purpose. See Miranda-Rivera,

813 F.3d at 73 (discussing personal liability for excessive

uses of force). Potential municipal liability under 42 U.S.C.

section 1983 under the principles of Monell v. Department

of Social Services, 436 U.S. 658, 691 (1978), also deters

such violations.

Indeed, public safety agencies already train their

officers on the importance of making traffic stops

effectively and in a way that maintains officer safety

while preventing or de-escalating conflict. The agencies

already also train their officers on the consequences of

failing to abide by particular standards in conducting

these activities. But failing to recognize the moment of

threat doctrine—and instead allowing officer personal

financial liability for unforeseen consequences of their

tactical decisions—will not prevent the type of harm that

occurred in this case. Should an agency in training tell

officers that, if faced with life-threatening circumstances,

they should either (1) not use reasonable force, or (2) stop

and consider whether they may have technically violated

the Fourth Amendment a short period of time before?

From the perspective of law enforcement agencies,

reflexively applying a totality of circumstances doctrine,

without taking account of reasonableness and legitimacy

in the moment of threat, is simply not workable. This

is particularly true in high stress, and potentially lifechanging moments in which law enforcement officers must

focus on the situation as it unfolds.

8

As a practical and public policy matter, rejecting the

moment of threat doctrine could also have the negative

effect of privileging those who would intentionally

place an officer in danger. Without the doctrine, an

aggressor could more readily hold the officer liable for

a constitutional violation and recover damages against

them individually, even though the aggressor acted

unlawfully to create a threat. For example, a uniformed

officer could enter a residence in violation of the Fourth

Amendment and experience an attack from the resident

in the resident’s effort to avoid capture. This could cause

the officer to respond with force but, under the totality

of the circumstances test supported by the Ninth Circuit

and other circuits, the resident could still have a cause of

action against the very officer the resident sought to harm.

This outcome would frustrate effective policing, lower law

enforcement morale, and lower the public’s expectation

that law enforcement can protect them.

II. REJECTING THE MOMENT OF THREAT

DOCTRINE WOULD BE INCONSISTENT WITH

THIS COURT’S HOLDING IN COUNTY OF LOS

ANGELES V. MENDEZ, WHICH REJECTED

THE PROVOCATION RU LE —A SIMIL A R

DOCTRINE UNDER WHICH A PRIOR FOURTH

AMENDMENT VIOLATION TRANSFORMED

A LEGITIMATE USE OF FORCE INTO AN

ILLEGITIMATE ONE.

The moment of threat doctrine has doctrinal support

from this Court’s landmark decision in County of Los

Angeles v. Mendez, 581 U.S. 420 (2017). In that case,

this Court rejected the Ninth Circuit’s “provocation

rule” by holding that one Fourth Amendment violation

9

that contributes to a use of force cannot transform a

later legitimate use of force into a Fourth Amendment

violation as well. Id. at 422. The “provocation rule,”

as this Court described it, provided that “an officer’s

otherwise reasonable (and lawful) defensive use of force

is unreasonable as a matter of law, if (1) the officer

intentionally or recklessly provoked a violent response,

and (2) that provocation is an independent constitutional

violation.” Id. at 425-26 (quoting the case’s petition for

writ of certiorari). The Ninth Circuit had applied the

rule to find that officers’ Fourth Amendment violation in

conducting a warrantless entry of a shack in which two

individuals resided rendered the officers’ legitimate use

of force moments later into one that violated the Fourth

Amendment. Id. at 426. This Court rejected the doctrine

and its application in the case. It emphasized prominently

in the introduction to its opinion that: “A different Fourth

Amendment violation cannot transform a later, reasonable

use of force into an unreasonable seizure.” Id. at 423.

The moment of threat doctrine applied in this case

aligns exactly with this holding of Mendez. An officer’s

Fourth Amendment violation or other culpable conduct in

placing themselves in a situation that turns out to present

danger should not transform a use of force that is legitimate

in the moment into a violation of the Fourth Amendment.

In this case, Officer Felix’s conduct in placing himself on

the vehicle driven by Barnes as it began to move should

not—under the reasoning of Mendez—transform his

subsequent use of force to protect himself automatically

into a Fourth Amendment violation. Instead, evaluating

the use of force in the moment tracks the Mendez holding.

Regardless of whether an officer engages in culpable

conduct in putting themselves in a situation in which use

10

of force is necessary, the use of force is evaluated only in

that window of time after a threat occurs.

The moment of threat doctrine also has support in this

Court’s authority on the general standards governing use

of force. Those standards provide that officer “fear” alone

does not suffice to support use of force. But the corollary

also holds: facts outside the moment of threat serving to

quell fear should not deprive use of force of its legitimacy

when objective facts in the moment support it. This Court

has described that, to evaluate the government’s interest

in using force, one must assess “the severity of the crime

at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether [the

suspect] is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U.S. 386, 396

(1989). The second factor regarding the safety of officers or

others is considered the most important. See Smith v. City

of Hemet, 394 F.3d 689, 702 (9th Cir. 2005). Courts have

described that threat to a person’s safety must appear

from objective factors; “[A] simple statement by an officer

that he fears for his safety or the safety of others is not

enough; there must be objective factors to justify such a

concern.” Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th

Cir. 2001).

The moment of threat doctrine screens out fearquelling facts from the split-second objective decision

making that needs to occur—these could be, for

example, the safe reputation of the neighborhood, the

subjective or social characteristics of the suspect, the

suspect’s cooperativeness during the interaction up to

the point of threat, and other similar factors. In doing

so, it corresponds to this Court’s emphasis in Graham

11

on objective criteria, and on safety as the most important

factor in assessing reasonableness. If the doctrine applies,

neither the officer, nor the trier of fact, will experience

distraction from subjective and ultimately irrelevant facts

that are external to the dispositive moment of threat.

Critics of the moment of threat doctrine have concerns

that victims of improper force will lack a remedy when

culpable officer conduct outside the moment of threat does

lead to harm but will go unpunished—and without any

relief available to the victim for the violation. But plaintiffs

will still have a source of relief under state negligence

principles, to the extent that the sovereign immunity laws

of the jurisdiction allow it. As described above in Section

II, they could also have claims under 42 U.S.C. section

1983 against the law enforcement agency itself under

principles of Monell liability. The plaintiff would need to

show, for example, that a policy or custom of the agency

led to the Fourth Amendment violation and the harm they

suffered. See Monell, 436 U.S. at 691. Thus, the moment

of threat will not deprive those harmed from any source

of relief under the law.

III. A P P LY I N G T H E T O T A L I T Y O F T H E

CIRCU MSTA NCES RU LE TO OV ERRIDE

T H E MOM EN T OF T H REAT DOCT RI N E

IS COUNTERPRODUCTIVE TO CURRENT

TRAINING EFFORTS.

In recent years, law enforcement agencies, task forces,

and various organizations throughout the country have

been analyzing how best to deliver policing services in a

way that reduces the number of police-involved shootings

and use of force incidents and increases public trust.

12

The emerging answer for some time has been “scenariobased” training. See, e.g., Guiding Principles on Use of

Force, Police Executive Research Forum (March 2016)

(“Guiding Principles”), at 64 (http://www.policeforum.

org/assets/guidingprinciples1.pdf). In fact, a bill has

been pending in Congress to require such training as a

way to reform policing nationwide. This is S.4847 “Law

Enforcement Scenario-Based Training for Safety and

De-Escalation Act of 2022.” (https://www.congress.gov/

bill/117th-congress/senate-bill/4847/text)

According to the Police Executive Research Forum

(“PERF”),

[a]gencies should provide use-of-force training

that utilizes realistic and challenging scenarios

that officers are likely to encounter in the

field. Scenarios should be based on real-life

situations and utilize encounters that officers

in the agency have recently faced. Scenarios

should go beyond the traditional “shoot-don’t

shoot” decision-making, and instead provide for

a variety of possible outcomes, including some

in which communication, de-escalation, and

use of less-lethal options are most appropriate.

Scenario-based training focused on decisionmaking should be integrated with officers’

regular requalification on their firearms and

less-lethal equipment.

Guiding Principles, supra, at 64. Scenario-based training

requires officers to remain mentally present, constantly

assessing the current threat level and how to respond.

For example, under the Critical Decision-Making model

13

proposed by PERF, officers should be asking themselves

the following questions:

• Do I need to take immediate action?

• What is the threat/risk, if any?

• What more information do I need?

• What could go wrong, and how serious would

the harm be?

• Am I trained and equipped to handle this

situation by myself ?

• Does this situation require a supervisory

response to provide additional planning and

coordination?

• Do I need additional police resources (e.g.,

other less-lethal weaponry, specialized

equipment, other units, officers specially

trained in mental health issues)?

• Is this a situation for the police to handle

alone, or should other agencies/resources

be involved?

Guiding Principles, supra, at 82.

For police officers to use their scenario-based training

skills successfully in the field, they must avoid distractions

and stay in the moment. The moment of threat doctrine

is tailored to this circumstance and aligns with scenario-

14

based officer training. By contrast, Courts declining to

follow the doctrine, and instead emphasizing the totality

of the circumstances including related potential Fourth

Amendment violations, apply a rule that simply does

not encourage officers to stay in the moment. Rather,

it encourages officers who are faced with life-or-death

decisions to think back on every tactical decision leading

up to that moment. This is because even if an officer

assesses their current situation correctly and determines,

for example, that firing their weapon is reasonable, legal,

and necessary, they nevertheless still know that if they

shoot, they could in turn suffer personal liability in the

millions of dollars for a previous tactical error. Instead of

officers focusing their attention on suspects, the situation,

and the best possible solution, the officer will be distracted

and second-guessing past decisions.

In addition, refusing to recognize the moment of

threat doctrine would encourage officers to attempt to

minimize liability by avoiding dangerous situations in the

first place, and thereby in turn discourage proactive law

enforcement. Large damage awards against individuals

can lead to “overdeterrence,” and

[t]he risk of overdeterrence is especially serious

in the police context, even if damages are not

set too high. Police officers ordinarily get no

tangible benefit from the marginal “good”

decision. Thus, if they are made to pay for

bad ones, they can simply choose to minimize

searches and arrests, or at least to avoid them in

all but clear cases. This is a real problem, both

because police have a great deal of discretionary

authority, and because they often exercise that

15

authority (and gather their information) on the

street, where it is very hard to monitor them.

All of which makes it easy for officers, all too

often, to “drive on by”—to choose not to search

or arrest at all. This means that overdeterrence

probably exists even if damages are assessed

accurately; a bias toward overvaluation will

only aggravate the problem.

William J. Stuntz, Warrants and Fourth Amendment

Remedies, 77 Va. L. Rev. 881, 903-04 (1991). Thus, instead

of encouraging better policing, refusing to recognize the

moment of threat doctrine will encourage less policing,

or distracted policing.

IV. E X I ST I NG STA N DA R D S , A N D R EC EN T

REFORMS IN LAW ENFORCEMENT, ALREADY

HELP PREVENT EXCESSIVE USE OF FORCE

Critics of the moment of threat doctrine may also

express concerns that this Court’s applying the doctrine

will allow individual officers unrestrained use of force and

will thus increase excessive force incidents nationwide.

As described above, however, the doctrine aligns with

existing use of force authority and also law enforcement

training methods designed to enhance decision making

in the instant, and in fact would reduce excessive force

incidents. But even aside from this, the law and standards

government officer conduct already serve amply to curb

excessive force.

First, law enforcement agencies can and must

discipline peace officers for improper force if it occurs.

Memoranda of Understanding authorize termination

16

and other discipline of officers for just cause. Although,

as government entities, law enforcement agencies must

comply with due process standards in disciplining officers,

officers who commit misconduct have no constitutional

right to keep their job if those procedural standards are

met. See, e.g., Skelly v. State Personnel Board, 15 Cal.

3d 194, 215 (1975). Also, law enforcement agencies can

have liability for federal civil rights violations if their

customs and policies have a sufficient causal nexus to

officers remaining in positions to use excessive force

when those officers have sufficiently demonstrated a

lack of ability to restrain themselves from harming the

public. See Monell, 436 U.S. at 691; see, e.g., Velazquez v.

City of Long Beach, 793 F.3d 1010, 1016, 1027-29 (9th Cir.

2015) (potential Monell liability exists based in part on

failure to investigate or discipline officers for incidents of

excessive force).

Reforms to policing in the last several years have

greatly augmented protections against police officer

misconduct. For example, in response to recent increased

public demands for accountability in law enforcement, the

California Legislature has passed laws that fundamentally

alter the practices for employment, investigation,

discipline, and certification of peace officers. Senate Bill

2 (“SB 2”) passed in 2022 converted the Commission on

Peace Officer Standards and Training (“POST”) from

an agency that developed training for law enforcement

agencies to a licensing agency with the mission to regulate,

including the power to decertify (i.e., de-license) peace

officers from working in the profession ever again, when

they engage in serious misconduct. Importantly, POST

heavily relies on the administrative Internal Affairs

investigations that employing agencies are required to

17

conduct in fulfilling POST’s new role of regulating the

certification of law enforcement officers.

Further, in California, two new transparency statutes,

Senate Bill 1421 (“SB 1421”) (2019) and Senate Bill 16

(“SB 16”) (2021) made certain records relating to eight

categories of officer misconduct that were previously

confidential to now constitute matters that must timely

be disclosed in response to requests. Cal. Penal Code

§ 832.7(b)(1)(A)(iii)-(iv), (B)-(E). Matters that must now

be disclosed include any record relating to the report,

investigation, or findings of “(i) An incident involving

the discharge of a firearm at a person by a peace officer

or custodial officer,” “(ii) An incident involving the use

of force against a person by a peace officer or custodial

officer that resulted in death or in great bodily injury,”

“(iii) A sustained finding involving a complaint that

alleges unreasonable or excessive force,” and “(iv) A

sustained finding that an officer failed to intervene against

another officer using force that is clearly unreasonable or

excessive.” Id., § 832.7(b)(1)(A).

Police do not engage in use of force with impunity just

because there is no Fourth Amendment violation found

so as to generate 42 U.S.C. section 1983 liability. Rather,

there exist many other sources of relief, punishment,

deterrence, and correction better tailored to support

effective policing and the physical safety of officers and

the public.

18

CONCLUSION

For the foregoing reasons, LACPCA respectfully

requests that this Court affirm the decision of the Court

of Appeals and recognize the moment of threat doctrine.

The doctrine rests on sound legal principles and provides

significant practical benefits for law enforcement and the

public.

Respectfully submitted,

J. Scott Tiedemann

Counsel of Record

David A. Urban

Liebert Cassidy Whitmore

6033 West Century Boulevard,

5th Floor

Los Angeles, CA 90045

(310) 981-2000

stiedemann@lcwlegal.com

Attorneys for Amici Curiae

Los Angeles County Police

Chiefs’ Association

Dated: December 19, 2024