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 Appeals for the Fifth Circuit

BRIEF OF WISCONSIN COALITION OF LAW

ENFORCEMENT, COUNTIES AND LOCAL

GOVERNMENT INTEREST GROUPS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

REMZY D. BITAR

Counsel of Record

MATTEO REGINATO

MUNICIPAL LAW &

LITIGATION GROUP, S.C.

730 N. Grand Avenue

Waukesha, WI 53186

(262) 548-1340

rbitar@ammr.net

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

REASONABLENESS OF ANY USES

OF FORCE, AS FORMULATED BY

THIS COURT AND ROOTED IN THE

COMMON LAW, IS ALWAYS

FOCUSED ON THE TWIN PILLARS

OF “WHETHER THE SUSPECT

POSES AN IMMEDIATE THREAT TO

THE SAFETY OF THE OFFICERS OR

OTHERS” OR “WHETHER HE IS

ACTIVELY RESISTING ARREST OR

ATTEMPTING TO EVADE ARREST

BY FLIGHT.” . . . . . . . . . . . . . . . . . . . . . . . . 5

II.

THE COURT SHOULD REINVIGORATE GRAHAM FROM DEVOLVING

FURTHER INTO NEGLIGENCE AND

INCONSISTENT JUDICIAL TREATMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ii

TABLE OF AUTHORITIES

Cases

Ardo v. Pagan,

652 F. Supp. 3d 545 (E.D. Penn. 2023) . . . . . . 26-27

Askew v. City of Chi.,

440 F.3d 894 (7th Cir. 2006) . . . . . . . . . . . . . . . . . 18

Beaverts v. State,

4 Tex. App. 175 (Tex. App. 1878) . . . . . . . . . . . . . 13

Caraway v. City of Pineville,

111 F.4th 369 (4th Cir. 2024) . . . . . . . . . . . . . . . . 28

Chaney-Snell v. Young,

98 F.4th 699 (6th Cir. 2024) . . . . . . . . . . . . . . . . . 11

Chew v. Gates,

27 F.3d 1432 (9th Cir. 1994) . . . . . . . . . . . . . . . . . 24

City & Cnty. of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) . . . . . . . . . . . . . . . . . . . . . 17, 25

Clark v. Ziedonis,

513 F.2d 79 (7th Cir. 1975) . . . . . . . . . . . . . . . . . . 11

Conlogue v. Hamilton,

906 F.3d 150 (1st Cir. 2018) . . . . . . . . . . . . . . . . . 28

iii

County of Los Angeles v. Mendez,

581 U.S. 420 (2017) . . . . . . . . . . . . . . 3, 6, 8, 9, 16, 17

Cox v. Wilson,

2016 WL 11260309 (D. Colo. Oct. 20, 2016) . . . 29-30

Devine v. Middletown Twp.,

2016 WL 1728372 (E.D. Pa. Apr. 29, 2016) . . . . . 29

Dockery v. Blackburn,

911 F.3d 458 (7th Cir. 2018) . . . . . . . . . . . . . . . . . 18

Donahue v. Wihongi,

948 F.3d 1177 (10th Cir. 2020) . . . . . . . . . . . . . . . 30

Eldridge v. City of Warren,

533 F. App'x 529 (6th Cir. 2013) . . . . . . . . . . . . . . 18

Est. of Biegert by Biegert v. Molitor,

968 F.3d 693 (7th Cir. 2020) . . . . . . . . . . . . . . . . . 21

Estate of Ceballos v. Husk,

919 F.3d 1204 (10th Cir. 2019) . . . . . . . . . . . . . . . 23

Est. of DiPiazza v. City of Madison,

2017 WL 1910055 (W.D. Wis. May 8, 2017) . . . . . 29

Estate of Heenan v. City of Madison,

11 F. Supp. 3d 929 (W.D. Wis. 2015) . . . . . . . . . . 24

iv

Est. of Robinson v. City of Madison, Wisconsin,

2017 WL 564682 (W.D. Wis. Feb. 13, 2017) . . . . . 29

Gilbert v. Rider,

1 Kirby 180 (Conn. Super. Ct. 1786) . . . . . . . . . . 15

Glen v. Wash. Cnty.,

673 F.3d 864 (9th Cir. 2011) . . . . . . . . . . . . . . . . . 24

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . 13, 16, 17, 19, 21, 22, 24,

26, 30, 31

Hundley v. District of Columbia,

494 F.3d 1097 (D.C. Cir. 2007) . . . . . . . . . . . . . . . 22

Johnson v. City of Philadelphia,

837 F.3d 343 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . 23

Jones v. Vill. of Highland Hills,

2021 WL 5589313 (N.D. Ohio Nov. 30, 2021) . . . 19

Kelley v. O'Malley,

787 F. App'x 102 (3d Cir. 2019) . . . . . . . . . . . . . . 25

Kingsley v. Hendrickson,

576 U.S. 389 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 14

Knight v. Miami-Dade County,

2014 WL 11813876 (S.D. Fla. May 14, 2014) . . . . 29

v

Kreger v. Osborn,

7 Blackf. 74 (Ind. 1843) . . . . . . . . . . . . . . . . . . . . . 15

Legg v. Pappas,

383 F. App'x 547 (7th Cir. 2010) . . . . . . . . . . . . . . 30

Lombardo v. City of St. Louis,

594 U.S. 464 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lombardo v. City of St. Louis,

143 S. Ct. 2419 (2023) . . . . . . . . . . . . . . . . . . . . . . 5-6

Medina v. Cram,

252 F.3d 1124 (10th Cir. 2001) . . . . . . . . . . . . . . . 23

Mesmer v. Commonwealth,

67 Va. (26 Gratt.) 976 (1875) . . . . . . . . . . . . . . . . 13

Mullenix v. Luna,

577 U.S. 7 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Murdock v. Ripley,

35 Me. 472 (1853) . . . . . . . . . . . . . . . . . . . . . . . 13-14

Napouk v. Las Vegas Metro. Police Dep't,

2024 WL 5051193 (9th Cir. Dec. 10, 2024) . . . . . . 24

Nehad v. Browder,

929 F.3d 1125 (9th Cir. 2019) . . . . . . . . . . . . . . . . 24

vi

Paroline v. U.S.,

572 U.S. 434 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 22

Partlow v. Stadler,

774 F.3d 497 (8th Cir. 2014) . . . . . . . . . . . . . . . . . 28

Pauly v. White,

874 F.3d 1197 (10th Cir. 2017) . . . . . . . . . . . . . . . 23

Pierson v. Ray,

386 U.S. 547 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Plakas v. Drinski,

19 F.3d 1143 (7th Cir. 1994) . . . . . . . . . . . . . . . . . 24

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . . 17-18

Sanzone v. Gray,

884 F.3d 736 (7th Cir. 2018) . . . . . . . . . . . . . . . . . 28

Saucier v. Katz,

533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 25

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . 7, 16, 17, 19, 20, 26

State v. Dennis,

16 Del. 433 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . 20

vii

State v. Durham,

141 N.C. 741, 53 S.E. 720 (1906) . . . . . . . . . . . . . 12

State v. Mahon,

3 Del. 568 (1842) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . 6, 9, 11, 24

Tennessee v. Lane,

541 U.S. 509 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 31

Truscott v. Carpenter,

91 Eng. Rep. 1050 (K.B. 1697) . . . . . . . . . . . . . . . 11

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Washington v. Chrisman,

455 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Whitlow v. City of Louisville,

39 Fed. Appx. 297 (6th Cir. 2002) . . . . . . . . . . . . . 28

Williams v. Jones,

95 Eng. Rep. 193 (K.B. 1736) . . . . . . . . . . . . . . . . 12

Zivojinovich v. Barner,

525 F.3d 1059 (11th Cir. 2008) . . . . . . . . . . . . . . . 30

viii

Constitutional Provisions

U.S. Constitution Fourth Amendment . 3, 4, 7, 9,16,

20, 21, 23-25, 29

Other Authorities

4 Blackstone Commentaries (1897) . . . . . . . . . . . 11

Matthew Hale, 2 History Placitorum Coronae 150

(Rider 1800) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13

Restatement (Third)of Torts: Liability for Physical and

Emotional Harm § 34 (Am. Law Inst. 2010) . . . . 22

William L. Murfree, Sr., A Treatise on the

Law of Sheriffs and Other Ministerial Officers

(1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 13

1

STATEMENT OF INTEREST 1

This coalition comprises the largest Wisconsin

stakeholders concerned with public safety and risk

management. The Wisconsin Counties Association

(“WCA”), statutorily created in 1935, is committed to

protecting the interests of Wisconsin counties and

promoting better county government. WCA

represents interests common to Wisconsin’s counties,

including to monitor and participate in legal

developments affecting county governments.

The League of Wisconsin Municipalities

(League) is a non-profit, nonpartisan association of

cities and villages whose current membership

consists of 189 of Wisconsin’s 190 cities and 403 of

Wisconsin’s 417 villages.

The Badger State Sheriffs’ Association

comprises all 72 Wisconsin county sheriffs, promoting

statewide law enforcement and public safety

initiatives and providing sheriffs with resources and

training to fulfill their constitutional responsibilities.

The Wisconsin Chiefs of Police Association, formed in

1907, also supports and improves local law

enforcement. Its mission includes being the public

voice on professional issues for law enforcement,

facilitating training and providing representation for

1 No counsel for a party authored this Brief in whole or in part.

No party or a party’s counsel contributed money that was

intended to fund preparing or submitting this Brief. No other

person, other than these interested parties, their members, or

their counsel, contributed money that was intended to fund

preparing or submitting this Brief.

2

the general good of law enforcement at the local, state,

and federal levels.

Many Wisconsin local governments share risk

management, insurance and other services with four

organizations who also join this Brief. Wisconsin

Municipal Mutual Insurance Company serves 15

counties and three cities (Madison, La Crosse and

Eau Claire). The remaining counties in Wisconsin

receive such services through Wisconsin County

Mutual Insurance Corporation.

The League of

Wisconsin Municipalities Mutual Insurance and

Cities and Village Mutual Insurance Company

service over 400 cities and villages (except City of

Milwaukee). These entities are not-for-profit and

managed by their member municipalities.

This is an important case to these parties

because Wisconsin court treatment of use of force, like

in other areas of the Country, has become highly

unpredictable and inconsistent.

SUMMARY OF THE ARGUMENT

An officer’s prior attempts to warn the suspect,

deescalate the situation, moderate the use of force, or

gain control of a subject are part of the overall factual

context in any use-of-force scenario. However, the

Petitioner and her amici seek to cherry-pick a single

pre-force moment and elevate it — placing it on equal

footing, or even above, the immediate threat an officer

faces when dealing with actively resistive subjects.

The problem with Petitioner’s and her amici’s

proposed “totality of circumstances” standard is what

it doesn’t say or do.

It’s a backward-looking

negligence assessment that places special weight on

3

any perceived officer error at any point in time, relies

heavily on viewpoints of the subject and his civil

litigation counsel, ignores facts of active resistance

and its legal repercussions and disregards

consistency in the Rule of Law. Their unprincipled

and malleable “totality of circumstances” test

presents the same “basic problem” this Court found

with the “provocation rule” in County of Los Angeles

v. Mendez, 581 U.S. 420, 427 (2017), where it held

such rules are “incompatible” with the “settled and

exclusive framework for analyzing whether the force

used in making a seizure complies with the Fourth

Amendment” under Graham v. Connor, 490 U.S. 386

(1989). The question of whether an officer has used

excessive force “requires careful attention to the facts

and circumstances of each particular case,” such as

the severity of the crime, whether the suspect poses

an immediate threat to the safety of officers or others,

and whether he is actively resisting or evading arrest.

Id. at 396.

While the Court in Graham did not explain

how to weigh these factors, it never said these factors

have equal weight, and it certainly never said the

severity of the crime, warnings, de-escalation,

alternatives, or other hindsight-laden theories could

ride roughshod over the threat posed to officers or the

need to gain control of actively resisting suspects.

Litigants around the Country have so

thoroughly muddled the Graham factors – often in

ways plainly inconsistent with the actual facts

captured on video or otherwise rationalizing active

resistance – leading to widely disparate results, not

4

just among the Circuits, but panel decisions therein

and even between district courts in the same State.

The Court should not allow litigants to

continue to look at Graham as a grab bag of

amorphous factors that can foster unlimited secondguessing and disparate results. The factors were

secured to several foundational principles that

comport with history and tradition and this Court’s

jurisprudence, such as “[t]he ‘reasonableness' of a

particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id. at 396.

And, “[t]he calculus of reasonableness must embody

allowance for the fact that police officers are often

forced to make split-second judgments — in

circumstances that are tense, uncertain, and rapidly

evolving — about the amount of force that is

necessary in a particular situation.” Id. at 396–97.

Additionally, the “validity of the claim” is judged

under the Fourth Amendment, “rather than to some

generalized ‘excessive force’ standard.” Id. at 394.

Finally, the “reasonableness” inquiry is not a

negligence inquiry, but one balancing “‘the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing

governmental interests at stake.” Id. at 396. These

foundational principles, and other common-sense

legal norms like superseding cause, are important

attributes to revitalizing this area of law to bring it in

line with the founder’s understanding and this

Court’s precedents so the Rule of Law “key to our

democracy — thrives on legal standards that foster

stability, facilitate consistency, and promote

5

predictability.” United States v. Rahimi, 602 U.S.

680, 746 (2024) (Jackson, J., concurring).

ARGUMENT

I.

REASONABLENESS OF ANY USES

OF FORCE, AS FORMULATED BY

THIS COURT AND ROOTED IN THE

COMMON LAW, IS ALWAYS

FOCUSED ON THE TWIN PILLARS

OF “WHETHER THE SUSPECT

POSES AN IMMEDIATE THREAT TO

THE SAFETY OF THE OFFICERS OR

OTHERS” OR “WHETHER HE IS

ACTIVELY RESISTING ARREST OR

ATTEMPTING TO EVADE ARREST

BY FLIGHT.”

No matter where the officer is along the

continuum of force, officers need to gain control of the

arrestee swiftly for officer or public safety and to

fulfill the public’s expectation of criminal law

enforcement. Common law history, and this Court’s

precedents, have repeatedly placed paramount

importance on those interests.

A. Rules Governing Use of Force Have

Always Considered the Moment of Threat

as Having Paramount Importance.

One pillar stands above all others: “Police

officers may not use deadly force unless they

reasonably believe that a suspect poses a significant

threat of death or serious injury to the officers or

others.” Lombardo v. City of St. Louis, 143 S. Ct.

2419, 2421 (2023) (Sotomayor, J., dissenting) (citing

6

Tennessee v. Garner, 471 U.S. 1, 3 (1985)). The

“threat of death or serious injury to the officers or

others” is the paramount factor, outshining pre-force

conduct.

Although the United States has softened its

position since Mendez, Resp. Br. p.4, it cannot ask the

Court to overlook the obvious – “the circumstances at

the moment that force is used will generally have

primary significance in the analysis.” U.S. Br. 7

(emphasis added).

“While the situation at the

moment force is used will have paramount

importance in many cases,” Id. p. 9 (emphasis added),

and while such “in-the-moment facts thus may have

preeminent – but not isolated – importance,” Id. at 13

(emphasis added), the Petitioner and the government

repeatedly revert to elevating the multi-factor test in

such a way that it equalizes, if not wipes out, the

paramount factor and its underlying principles. The

law should not place the in-the-moment threat on the

top shelf but then place all the directional signs to

focus on the lower shelves’ pre-force conduct; doing so

invites over-litigating all uses of force in all scenarios.

In their view of “totality,” the Petitioner and

her amici look away from another important pillar:

whether an officer in the moment needs to control the

subject who is actively resisting. Even if they say it’s

an ingredient in the “totality of circumstances,” it is

nevertheless obscured by their over-emphasis on

“reasonableness” as a “factbound morass” that must

be “sloshed” through from the non-officer perspective

from the first moment officers initiate an encounter.

While Justice Scalia observed “we must still

slosh our way through the factbound morass of

7

‘reasonableness,’” Scott v. Harris, 550 U.S. 372, 383

(2007), neither those remarks nor the decision

substituted “sloshing” through facts as replacing

settled precedent regarding the “threat of death or

serious injury to the officers or others” or the need to

gain control of actively resisting subjects. To the

contrary, the Court still focused on the threat to

officers and public of paramount importance, rejected

theories officers violated the Fourth Amendment by

mishandling various “pre-conditions” as if they were

a “magic on/off switch” and balanced the individual’s

interest against the importance of the governmental

interests. Id. at 383-84.

This Court’s other use of force cases revolved

around whether the facts in the moments of

controlling or stopping resistive subjects warranted

either qualified immunity or tighter scrutiny by the

lower court. Even in Lombardo v. City of St. Louis,

594 U.S. 464, 467 (2021) (per curiam), which involved

decentralizing a resistive pretrial detainee and

placing him in a prone position, the Court merely

questioned whether the Eighth Circuit applied the

correct legal standard by not considering whether

officers made any effort “to temper or to limit the

amount of force” while using the prone position. The

legal implications were the facts surrounding the

prone position. In contrast, the “totality” test

advocated by Petitioner and her amici would shift

focus to much earlier events in the sequence — such

as whether the jail officers should have left him alone,

called crisis workers, or handled the disturbance

differently – creating a massive liability change.

8

The unprincipled “totality” rule sought by

Petitioner and her amici allows gamesmanship with

actual facts and their full context. The sequence of

events here involved a lawful traffic stop based on

reasonable suspicion, a lawful detention to continue

the investigation and lawful directions to the suspect

including commands to exit the car for officer safety

and to not drive off. Then – in the tense moments that

followed, whether measured by one, two or five

seconds – the suspect actively resisted by accelerating

his vehicle into moving traffic on a highway while the

officer was precariously positioned (whether

forcefully pinned or awkwardly positioned) between

the inside of the driver’s door, swinging vehicle door

and the close concrete freeway median. Whereas the

“basic problem with the provocation rule” was it

“failed to stop” at the moment the officer acted based

on what he knew at the time, instead creating a rule

that “provides a novel and unsupported path to

liability in cases in which the use of force was

reasonable,” Mendez, 581 U.S. at 428 (emphasis

added), the rule sought here re-engineers the common

law, Graham and its precedent to make officers liable

for any alleged negligent act. Such rule creates

perverse incentives; an officer in the future might

consider a “turn-a-blind eye” tactic – not making the

stop, detention, investigation or arrest. Fortunately,

this Court long ago rejected that policy choice as

discussed in Section II.B below. See also Pierson v.

Ray, 386 U.S. 547, 555 (1967) (“A policeman's lot is

not so unhappy that he must choose between being

charged with dereliction of duty if he does not arrest

when he has probable cause, and being mulcted in

damages if he does.”).

9

Any litigant can easily dress up a gardenvariety negligence theory based on a perceived

tactical error. But, this Court should demand a legal

rule that does not and should not minimize the fact

the officer acted lawfully during the entire sequence

of events and faced active resistance causing him to

make an “in-the-moment” decision to maintain

control or, in those rare cases, potentially save his

own life when in peril.

As in many cases the Court has seen, the

suspect here turned the tables on the officer,

transforming a lawful and peaceful encounter into

one that posed a serious risk of harm to the officer.

Because excessive force claims are evaluated for

objective reasonableness based on information

officers had when the conduct occurred, “[t]hat

inquiry is dispositive” and “there is no valid excessive

force claim.” Mendez, 581 U.S. at 428.

B. The Ability of Officers to Use Force When

Faced With a Threat is Consistent with

the Founding Generation’s Understanding that Due Administration of the Law

Allows Officers Leeway to Use Force as

Necessary to Gain Custody and Control

or Protect Themselves and Requires a

Person Confronted by Lawful Authority

to Follow Instructions Rather than

Actively Resist.

This Court looks “to the common law in

evaluating

the

reasonableness,

for

Fourth

Amendment purposes, of police activity.” Garner, 471

U.S. at 13. Local sheriffs are constitutional officers,

“part of the machinery of the state government,”

10

Preface to William L. Murfree, Sr., A Treatise on the

Law of Sheriffs and Other Ministerial Officers, at v

(1884), whose duties – along with other peace officers,

constables, justices of the peace, coroners or other

ministerial officers – were the “principalis

conservator pacis within the county, which is the life

of the commonwealth, vitae reipublicae pax.” Id., § 2,

at 2 (citing Lord Coke). “For the due administration

of justice,” there were three ingredients: “wise and

salutary” laws; “learned and impartial” judges; and

“the third, hardly less essential, that the officers who

execute them, and carry into effect the judgments of

courts, should be faithful and efficient.” Id., § 1, at 2.

An influential 17th century English jurist,

Matthew Hale, structured use of force around the

principle of necessity and the contrast of force

between “private nature” versus the public context

involving “public justice and safety.” Matthew Hale, 1

History Placitorum Coronae 478 (Payne 1778). Peace

officers were granted greater leeway to use force given

their role as public agents of the law. Whether the

peace officer was a jailer or sheriff faced with

resistance, they were not “bound to give back to the

wall,” i.e., retreat, but could respond with force,

including deadly force, because “they are mini[s]ters

of justice, and under a more [s]pecial protection in the

execution of their office, than private persons.” Id. at

481. “The [s]ame law is of a con[s]table, that

commands the king’s peace in an array, and is

re[s]i[s]ted. …[I]if the per[s]on [s]o charged re[s]i[s]ts

or flies, and cannot be otherwi[s]e taken, tho

perchance he be innocent, for the rea[s]on before

given; and this, either before or after the arre[s]t.” Id.

at 494.

11

While the common law “allowed the use of

whatever force was necessary to effect the arrest of a

fleeing felon,” Garner, 471 U.S. at 12 (discussing 4

William Blackstone, Commentaries on the Laws of

England), and while the Court in Garner did not fully

embrace that rule given the evolution of legal norms

surrounding felonies and misdemeanors, the Court

still recognized the constitutionality to use force

where an officer has “probable cause to believe that

the suspect poses a significant threat of death or

serious physical injury to the officer or others.”

Garner, 471 U.S. at 3. See also Clark v. Ziedonis, 513

F.2d 79, 81 (7th Cir. 1975) (tracing the general rule

to, among other sources, 4 Blackstone Commentaries

184 (Lewis' ed. 1897 at 1582)).

In civil actions in the late 17th century and

early 18th century, individuals alleging excessive force

by officers would bring assault and battery claims.

Defending officers needed to show either: (1) the force

was minimal and necessary for the arrest (molliter

manus imposuit, or “gently lay hands upon”), or (2)

the arrestee actively resisted or attempted to evade

arrest. See Chaney-Snell v. Young, 98 F.4th 699, 717

(6th Cir. 2024). But, the focus on “totality” never lost

sight of the forest for the trees, as shown in several

cases. In Truscott v. Carpenter, 91 Eng. Rep. 1050

(K.B. 1697), officers seized a plaintiff for failing to pay

a debt. The King’s Bench held, while the authority to

imprison implies the right to commit a battery, it is

not an unlimited right where no resistance was

evident. Id. at 1050. “[T]he defendant ought to go on,

and shew that he arrested the plaintiff, and the

plaintiff offered to rescue himself, and so the

defendant was compelled to beat him.” Id. Likewise,

12

in Williams v. Jones, 95 Eng. Rep. 193 (K.B. 1736),

the plaintiff trespassed and stole seven horses. The

stable-owner obtained a capias ad respondendum

(summons) from the Court of Common Pleas and

delivered to the London sheriff. Id. The arresting

officer held the plaintiff for six hours resulting in a

battery claim. Id. The court held the arrest justified

physical harm if necessary to overcome resistance,

clarifying “a battery cannot be justified by shewing an

arrest barely; but that in order to make it good,

something further should be shewn: as ... that the

plaintiff made resistance, and was going to rescue

himself, and by reason of that he beat him to take

him.” Id. at 194.

This framework of focusing on necessity in-themoment continued through the post-Civil War era.

By then, most of the states “made an offence against

the law to resist or obstruct an officer in the discharge

of his duty.” Murfree, § 83, at 48. Peace officers

should “gently lay hands upon” an individual to

address a situation, but that rule never sacrificed the

risk posed to the peace officer who could use

“roughness” or “force sufficient to effect his purpose”

if the circumstances warranted the same, State v.

Mahon, 3 Del. 568, 569 (1842), up to deadly force if he

could “justify his conduct by proof showing that he

acted under the pressure of an irresistible necessity.”

State v. Durham, 141 N.C. 741, 53 S.E. 720, 725

(1906) (citing Murfree, § 148).

Using the “necessary” amount of force in the

moment did not lead to an elastic “totality of

circumstances” rule that segmented pre-force

conduct, allowing civil claims for some pre-force error

13

by the officer. Rather, the focus was on the active

resistance faced by officers and their role in securing

the commonwealth’s laws for the public health, safety

and welfare. “If he is resisted he may repel force with

force, and even take life when it is made absolutely

necessary by the resistance of the party sought to be

arrested, and those aiding and abetting him.”

Murfree, § 1164, at 632 (citing Hale’s Pleas of the

Crown). For example, in Murdock v. Ripley, 35 Me.

472 (1853) the plaintiff resisted an officer’s aid’s

attempts to arrest him upon a warrant. But, the legal

rule focused on the moment, not the warrant: “[T]he

officer was bound to serve the warrant, and to use as

much force as was necessary to enable him to execute

it,” and “they had a right; if resisted, to perform their

duty with a strong hand.” Id. at 474. The appellate

court agreed, providing a full picture of the respect an

officer was entitled to: “The highest interests of every

citizen require a prompt and efficient execution of the

laws, especially in criminal process, and that

resistance to officers should be speedily and

effectively suppressed.” Id. at 474. See also Mesmer

v. Commonwealth, 67 Va. 976, 984-85 (1875) (alleged

assault of plaintiff “was made in the discharge of his

official duty [] as chief of police of the city ..and that

no more force was employed …than was necessary to

secure the arrest …”); Beaverts v. State, 4 Tex. App.

175, 177 (Tex. App. 1878) (“An officer having lawful

authority to make arrests may, on meeting with

resistance, employ such force as may be necessary to

overcome such resistance.”). 2

2 Like some common-law courts, Graham left open the door to

consideration of an officer’s good faith. 490 U.S. at 399 n. 12 (in

14

Nor did common-law courts weigh the severity

of the crime in the “totality” as advocated by

Petitioner and her amici. Many of the cases, such as

Murdock, involved service of writs. This did not mean

officers could act rashly or in excess of their authority,

but it also did not mean the individual had a cause of

action simply because physical force was used in a

situation involving mere service of court papers. In

Hager v. Danforth, an officer went to the plaintiff’s

house with process and having found the door open,

entered peaceably. 20 Barb. 16, 16 (1854). The officer

was met with resistance by the subject’s wife and was

ordered to leave. Id. The officer used physical force

and “threw her back against the catch of a door, and

slightly bruised her.” Id. The trial court instructed,

“after [the subject’s wife] had ordered the [officer] out,

the subpoena was not a justification or protection to

him in pressing forward and, when resisted in his

advance, using force to serve it.” Id. The appellate

court reversed, reasoning:

assessing officer credibility, factfinder may assess evidence “the

officer may have harbored ill-will toward the citizen.”); Murdock,

35 Me. at 473-74 (among other factors, “[i]n suppressing [illegal

acts] and in overcoming resistance to officers, all that can be

required, is good faith and honest purpose.”). In Kingsley v.

Hendrickson, 576 U.S. 389, 399 (2015), the “difficult

undertaking” of jail operation and penological concerns for

officer safety and order, “the use of an objective standard

adequately protects an officer who acts in good faith.” (emphasis

added). The same should be true here. Law enforcement officers

often serve between jails or patrol. There is overlap in their

initial and ongoing training on common issues like force. Like

their jail counterparts, patrol officers have a difficult

undertaking with maintaining safety and order.

15

Deriving his authority to be there from

the law, and not from the consent of the

plaintiffs, he was under no obligation to

obey [the subject’s wife] when she

ordered him to leave. …I know of no duty

which bound him to desist from the

execution of the lawful purpose which

had brought him there. …To the extent,

therefore, that the force used by the

[officer] was necessary to overcome the

unlawful resistance he met in the service

of the subpoena, it was lawful.

Id. at 17. See also Gilbert v. Rider, 1 Kirby 180, 181

(Conn. Super. Ct. 1786) (constable had a writ of

execution against plaintiff for an unpaid debt. “[The

plaintiff] peremptorily refused to go any other way;

his obstinacy obliged the officer to bind him, and

compel him to go by force; he used no greater force

than was necessary.”); Kreger v. Osborn, 7 Blackf. 74

(Ind. 1843) (constable served a writ issued by a court

to bring plaintiff, who alleged the sheriff “assaulted,

seized, violently pulled and dragged about, struck

with many blows, and imprisoned the plaintiff.” The

court held, “[t]o justify these acts resistance to the

officer was necessary”).

These amici do not ask the Court to usher any

harsh sentiments of the common-law courts into

modern America. Rather, the history does not

support a generalized “totality of circumstances” test

that prioritizes a single slice from pre-force conduct.

The founding generation’s copius history and

tradition afforded officers the ability to swiftly enforce

16

the community’s laws, control resistive subjects and

defend themselves.

II.

THE COURT SHOULD REINVIGORATE GRAHAM FROM DEVOLVING

FURTHER INTO NEGLIGENCE AND

INCONSISTENT JUDICIAL

TREATMENT.

The Court has rejected attempts to shift the

analysis away from the Fourth Amendment. Graham

rejected analysis of excessive force claims under the

Fourteenth Amendment’s substantive due process

standard, instead moving it under the Fourth

Amendment’s reasonableness standard where uses of

force would be evaluated through the eyes of an

objectively reasonable officer on the scene, accounting

for what officers knew, observed and acted on.

Graham, 490 U.S. at 396. Mendez also rejected

changing the framework.

The Court should

reinvigorate Graham – by emphasizing the twin

pillars as discussed above, as well as the

governmental interests, superseding cause and the

prohibition against hindsight evaluation from the

viewpoint of the suspect – as hard guardrails that do

not allow negligence to seep in.

A. The countervailing governmental

interests should not be forgotten.

The Fourth Amendment considers an

individual’s liberty against “the importance of the

governmental interests alleged to justify the

intrusion.” Scott, 550 U.S. at 383. Perhaps because

“there is no obvious way to quantify the risks on

either side,” id. at 383–84, litigants frequently

17

overlook the government interest

emphasis on pre-force conduct.

with

heavy

In Graham, the government interests can be

seen in some factors: (1) “whether the suspect poses

an immediate threat to the safety of the officers or

others,” (2) “the severity of the crime at issue,” and (3)

“whether he is actively resisting arrest or attempting

to evade arrest by flight.” 490 U.S. at 396. While the

“severity of the crime at issue” can be minor, more

often force arises when the suspect graduates his

conduct and commits more significant crimes such as

obstruction, assault/battery to an officer, flight, or

other active resistance.

The government’s interest lies in discouraging

citizens from actively resisting and ensuring officers

resolve situations swiftly and effectively. As much

can be gleaned from the common law history above,

as well as this Court’s precedent, which illuminates

the need to stop a threat or gain control of actively

resisting subjects. See, e.g., Mullenix v. Luna, 577

U.S. 7, 16 (2015) (stopping a fleeing vehicle with

lethal force, before vehicle hit spike strips, to protect

nearby officers); Scott, 550 U.S. at 385-87 (policy

implications of creating use of force rules that would

discourage officers from gaining control of a fleeing

subject); City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600, 612 (2015) (officers acted

constitutionally where subject had “not been

disabled” and “delay could make the situation more

dangerous,” officers’ additional efforts to gain control

of the subject including by re-opening the door to her

room and attempting pepper spray); Plumhoff v.

Rickard, 572 U.S. 765, 776-77 (2014) (finding

18

reasonable multiple efforts to gain control of suspect’s

continued flight, unlike a situation where suspect had

“ended any threat” or “clearly given himself up.”);

Washington v. Chrisman, 455 U.S. 1, 10 (1982)

(following arrest, an officer may accompany the

arrestee back into his residence upon arrestee’s

request “to protect himself and maintain control over

his arrestee.”). After all, officers enforce laws by

acting on warrants or probable cause, and courts

respect that balance by expecting officers to gain

control, bring suspects into custody and leave the

sifting and winnowing to the courts. 3

“Active resistance” remains undefined by this

Court. For most courts, it is one of degree, not a

binary concept: flight or drawing a weapon on an

officer. Active resistance includes physically

struggling, threatening, and even disobeying officers.

See, e.g., Dockery v. Blackburn, 911 F.3d 458, 467 (7th

Cir. 2018) (examples include: “‘kicking and flailing’;

declining to follow instructions while acting in a

belligerent manner; and swatting an arresting

officer's hands away while backpedaling.”)(citations

omitted); Eldridge v. City of Warren, 533 F. App’x 529,

533–35 (6th Cir. 2013) (surveying case law to find

force justifiable in response to “some outward

manifestation—either verbal or physical—on the part

3 Where there is probable cause for an arrest, the Constitution

allows officers to “leave the sifting of competing claims and

inferences” to the criminal justice system, i.e., prosecutors,

judges, and juries. See Askew v. City of Chi., 440 F.3d 894, 896

(7th Cir. 2006). Public policy supports this: “If states think that

this gives accused persons insufficient protection, they are free

to enact statutes either staying the officers' hand or providing

recompense to those exonerated in the criminal process.” Id.

19

of the suspect had suggested volitional and conscious

defiance…” and something more than “mere

noncompliance” such as “a verbal showing of hostility”

or “a deliberate act of defiance using one’s own

body…or some other mechanism, such as [a vehicle]

…”.). See also Jones v. Vill. of Highland Hills, 2021

WL 5589313, at *10 (N.D. Ohio Nov. 30, 2021) (“A

deliberate act of defiance can include ‘refusing to

comply with the officers’ demands that the [plaintiff]

roll over and by physically attempting to stand up.’”)

(quoted sources omitted).

When litigants try to parse facts into Graham’s

three buckets, they often lose sight of the broader

government interest principles. The common law

history and tradition recognized the reasonableness

of meeting “force with force” given officers’ role in the

commonwealth’s

criminal

justice

system.

Historically, courts never looked away from the need

to enforce society’s laws and officers’ role therein.

The same should hold true today.

A common drumbeat in lower courts is officers

should turn away, leave, stop, never arrive or just let

the suspect go when they encounter resistance, a

point advocated by Petitioner during the Fifth Circuit

arguments where it was stated Officer Felix should

have just stood there while Mr. Barnes enjoyed his

“constitutional right” to flee. 4 The Court has never

laid down such a rule and should emphatically reject

it as being contrary to the government interest. See

Scott, 550 U.S. at 385 (“[W]e are loath to lay down a

Oral Argument at 13:53, No. 22-20519 (5th Cir. Oct. 2, 2023),

ca5.uscourts.gov/OralArgRecordings/22/22-20519_10-22023.mp3.

4

20

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.”) (emphasis in

original). “The Constitution assuredly does not

impose this invitation to impunity-earned-byrecklessness.” Id. at 385–86. This drumbeat fails to

consider the public interest at large and the role of

law enforcement, for “unless they are protected by the

law, neither the public peace, nor the preservation

and protection of life, person, and property, can be

secured in this community.” State v. Dennis, 16 Del.

433, 434 (1895). Public peace is neither antiquated

nor subservient. The Scott Court’s calculus of the

government interest included consideration of the

suspect’s “relative culpability” versus the “entirely

innocent.” 550 U.S. at 384.

B. Even under a totality of circumstances

approach, superseding cause should

have a role in order to develop more

consistent outcomes.

The Petitioner’s rule – the reasonableness of an

officer’s use of force should be analyzed by the

“totality of the circumstances” such that “sloshing”

through the “factbound morass” of reasonableness

allows a litigant to single out any pre-force fact, Pet.

Br. 1-2, 13, 24 – results in the same “vague” and

“murky” casual standard the Court rejected in

Mendez, 581 U.S. at 430, 432. Petitioner’s rule makes

a Fourth Amendment violation, not because of any of

the preceding conduct by which the officer acted

lawfully and the suspect acted unlawfully, but

because the officer kept his position within the door

frame to maintain control of the subject, causing him

21

to jump onto the sill as the vehicle moved away. Pet.

Br. 47. Whether one calls this “jumping” on a

“moving” vehicle, or whether one views the sequence

as one or several seconds, it is a simplistic connecttwo-dots litigation strategy that assures litigants will

always be able to show officer liability for any and all

uses of force.

Graham

never

envisioned

a

Fourth

Amendment standard that invited litigants to turn

tactical errors into an expressway of lawsuits. One

critical gatekeeping rule has been lost: even if an

officer’s actions arguably contributed to use of force,

very often the suspect’s own conduct is the

intervening and superseding cause. “Only in narrow

circumstances have we concluded that an officer acted

unreasonably because he created a situation where

deadly force became essentially inevitable.” Est. of

Biegert by Biegert v. Molitor, 968 F.3d 693, 698 (7th

Cir. 2020). Two examples were offered: jumping in

front of moving vehicles, and executing search

warrants under highly questionable circumstances

(such as forcibly entering a dwelling in plain clothes

causing the occupant to arm himself thinking

intruders are entering). In those situations, officers

created the need to use force because “the officers

acted so far outside the bounds of reasonable behavior

that the deadly force was almost entirely a result of

the officers’ actions.” Id. The botched raid involving

Breonna Taylor illustrates the second example. See

Resp. Br. 28. If Petitioner is correct this case is a

jumped-on-the-vehicle causing lethal force, it merely

illustrates the first example. Such examples are the

exception, not the rule.

22

Proximate cause focuses on scope of risk and

foreseeability. Paroline v. U.S., 572 U.S. 434, 445

(2014). When an injury is foreseeable but the causal

link is attenuated or broken by a superseding event,

proximate cause is not present. Restatement (Third)

of Torts: Liability for Physical and Emotional Harm §

34 (Am. Law Inst. 2010). When the intervening cause

is so unforeseeable that it is outside the scope of the

risk created by the initial actor, the intervening cause

becomes a superseding cause and the original actor is

not liable. Id. at § 34.

Revitalizing Graham warrants inclusion of

these causation principles in order to produce

consistency and predictability regarding when a

suspect’s threatening behavior and/or active

resistance constitutes a superseding cause that

breaks the chain of causation between the officer’s

pre-force conduct and the use of force. 5

For example, in Hundley v. District of Columbia, 494 F.3d 1097

(D.C. Cir. 2007) (Kavanaugh, J.)., an off-duty officer observed

unlawful activity in a parked car and tapped the window. Id. at

1099-100. Irritated, the driver attempted to run the officer over;

the officer jumped out of the way, drew his firearm, and ordered

the occupants out. Id. Once outside, the driver made a

threatening movement, whereupon the officer shot the driver.

Id. The plaintiff argued the same thing Petitioner does: if the

officer acted unreasonably in initiating the encounter, he would

necessarily be liable for the shooting, even if it was done in selfdefense. The court rejected the argument, holding the suspect’s

threatening movement was a superseding cause. Id. at 1104-05.

“As a matter of law, it is not ordinarily reasonable to foresee that

a citizen will react to a police stop by attacking the detaining

officer, thereby triggering a situation that requires the officer to

use deadly force in self-defense. On the contrary, citizens have a

duty to obey a police officer's orders, and officers are entitled to

5

23

C. The Court should stop the degeneration

of the Fourth Amendment and Section

1983 litigation into hindsight-laden

negligence and litigation manufactured

theories, especially when video exists of

active resistance.

Petitioner asserts there is a Circuit divide

where some have created a special “moment-of-thethreat” rule, and the Respondents assert Circuits are

in alignment except the Ninth and Tenth Circuits.

However, judicial treatment is far more muddled

around the Country as litigants and courts

increasingly treat incidents as opportunities for

negligence theories masquerading as constitutional

law.

Across the Circuits, panel decisions tout

different rules. The Ninth and Tenth Circuit are said

to allow the “officer-created-danger rule.” But the

panel decisions in those Circuits reveal a potpourri of

standards and tests. See, e.g., Medina v. Cram, 252

F.3d 1124, 1132 (10th Cir. 2001) (consider police

conduct that created the need to use lethal force as

part of the totality of the circumstances); Estate of

Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019)

(“[O]nly reckless and deliberate conduct that is

assume that citizens will comply with their orders.” Id. at 1105.

See also Johnson v. City of Philadelphia, 837 F.3d 343, 352-53

(3d Cir. 2016) (“[A]s a matter of law [the suspect’s] violent,

precipitate, and illegal attack on [the officer] severed any causal

connection between [the officer’s] initial actions and his

subsequent use of deadly force during the struggle on the street.”

Pauly v. White, 874 F.3d 1197, 1207 (10th Cir. 2017) (officers

may be held liable for shooting if suspect’s actions were not a

superseding act).

24

‘immediately connected to the seizure will be

considered. Mere negligence or conduct attenuated

by time or intervening events is not to be

considered.”); Napouk v. Las Vegas Metro. Police

Dep't, 2024 WL 5051193, at *4 (9th Cir. Dec. 10, 2024)

(whether the suspect posed an immediate threat to

the safety of officers or others is the “most important”

factor); Nehad v. Browder, 929 F.3d 1125, 1135 (9th

Cir. 2019) (factors include whether the officer was

“simply responding to a preexisting situation,” or

instead “create[d] the very emergency he then

resort[ed] to ... force to resolve.”).

Notably, some lower courts have departed from

well-established rules about the danger to an officer

by improperly considering whether alternatives were

available (whatever force used). 6 See, e.g., Glen v.

Wash. Cnty., 673 F.3d 864, 872 (9th Cir. 2011)

(“[O]ther relevant factors include the availability of

less intrusive alternatives to the force employed….”);

Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994)

(“[T]he availability of alternative methods of

capturing or subduing a suspect may be a factor to

consider”); Estate of Heenan v. City of Madison, 11 F.

Supp. 3d 929, 942 (W.D.Wis. 2015) (“The failure to use

an alternative, non-deadly force is not dispositive,

although whether such an alternative existed is a

factual question that may weight on a trier of facts’

ultimate determination of objective reasonableness.”);

6 The Fourth Amendment does not require an officer to exhaust

all other alternatives before using force, including lethal, or to

use the least intrusive means. Rather, the Fourth Amendment

allows an officer to use any reasonable means under the

circumstances. See Garner, 471 U.S. at 7-9; Graham, 490 U.S.

at 394-96; Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994).

25

Kelley v. O’Malley, 787 F. App'x 102, 106 (3d Cir.

2019) (“Critically here, there are fact questions about

why the officers did not attempt to use alternative,

less lethal means of force before gun fire erupted.”).

This Court has made several points that have

been side-stepped by lower courts, from the principles

about 20/20 vision, getting into officers’ shoes,

authorizing force when facing danger and others like

the following:

•

“[E]ven if [the officers] misjudged the situation,

[the claimant] cannot ‘establish a Fourth

Amendment violation based merely on bad

tactics that result in a deadly confrontation

that could have been avoided.”’ Sheehan, 575

U.S. at 615.

•

“[S]o long as a reasonable officer could have

believed that his conduct was justified, a

plaintiff cannot avoi[d] summary judgment by

simply producing an expert’s report that an

officer’s conduct leading up to a deadly force

confrontation was imprudent, inappropriate, or

even reckless.” Id.; see also Saucier v. Katz,

533 U.S. 194, 216, n. 6, (2001) (Ginsburg, J.,

concurring in judgment) (no second-guessing

an officers’ “life and death decisions,” even with

a litigation expert).

Yet lower courts are awash in litigation

deviating from these core principles, permitting mere

disagreement, full-blown hindsight evaluations,

speculation, expert opinions on ultimate legal

questions and negligence-based theories to seep into

and commandeer the Fourth Amendment framework.

26

Cemented facts on video showing resistance are sidestepped by shifting analysis to some earlier point in

time, a litigation tactic to avert a common-sense rule

from Scott: “[w]here opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for the purposes of ruling on a motion for

summary judgment.” 550 U.S. at 376. When video is

lacking (in whole or in part, for whatever reason), any

fact purportedly occurring during any moment is

always urged as being material. Perhaps so in the

moment, but it should not be so pre-force.

The Graham rules, which place litigants and

courts in the moment and in the shoes of the officers,

have neither quelled litigation nor made outcomes

predictable, even when the situations involved

officers addressing very disturbing threats to the

community. The creative after-the-fact negligence

building is demonstrated by the bomb-versus-officer

case in Ardo v. Pagan, 652 F. Supp. 3d 545 (E.D.

Penn. 2023), where responding officers were

portrayed as the offenders. There, a mother called the

police and reported that her son (Mr. Ardo) was

suicidal, he came to the house earlier contrary to a

restraining order, and she wanted him to be

involuntarily committed. Two troopers went to the

house and waited for him to arrive. Id. at 549. Mr.

Ardo agreed to come home but warned he would place

an “improvised explosive device” around his neck and

detonate it if he noticed any officers. Id. Upon arrival

Mr. Ardo saw the troopers and threatened to “ignite

this thing.” Id. at 552-53. Fearing an explosion in a

heavily populated area, the troopers parked their

27

squads around Mr. Ardo’s vehicle to block him and

prevent him from leaving. Id. at 553. The troopers

exited their squad cars with their firearms drawn,

walked closer to Mr. Arlo’s vehicle with their firearms

pointed down, and ordered him to show his hands and

exit the vehicle. Id. When one of the troopers came

within several feet, Mr. Arlo “turned toward [the

trooper] with a ‘maniacal smile,’ lit up a lighter, and

began to light a fuse attached to a device near his

neck.” Id. After seeing the lit lighter, the trooper

fired two shots while rapidly retreating away in case

a blast occurred. Id. at 554. Other troopers also fired,

all out of a belief their lives and others in danger. Id.

The court recognized such deadly force could be

reasonable as a matter of law if the court did not parse

out the troopers’ pre-force conduct. “After all, such an

explosion could have presented a threat to not only

Mr. Ardo’s life, but to the Troopers’ lives as well.” Id.

at 558. Still, the court latched onto the unprincipled

“totality” rule sought here. The litigant argued, and

the court accepted, officer liability could be based on

the following pre-force conduct: dealing with an

emotionally disturbed person, failure to use deescalation techniques, approaching the vehicle too

quickly and giving Mr. Ardo “competing demands.”

Id. Paying lip-service to the rule against “20/20 vision

of hindsight,” the court found “practices such as calm

communication, maintaining distance, and avoiding a

threatening demeanor when dealing with an

emotionally disturbed person” should have been

considered. Id.

Some, but not all, lower courts have embraced

the rule that when a suspect threatens an officer with

28

a firearm or similar weapon, the officer is justified in

using force, up to deadly force where necessary,

regardless of his prior conduct. Those courts have

rejected theories – and this Court should too – that

the officer should allow the suspect to make the first

move, should wait to see if the warning is heeded, or

should have planned more before arriving. 7

Experts put hyper-technical focus on whether

an officer’s conduct leading up to the use of force was

imprudent, inappropriate, and/or unreasonable, but

not whether the officer faced a resistive subject and

acted reasonably in the moment. For example, in

7 See Caraway v. City of Pineville, 111 F.4th 369, 382 (4th Cir.

2024) (“‘pointing, aiming, or firing [a] weapon,’ … are all

sufficient—but not necessary—movements to constitute such a

threat” to warrant the use of deadly force); Whitlow v. City of

Louisville, 39 Fed. Appx. 297, 306-07 (6th Cir. 2002) (deadly

force justified where suspect pointed firearm at officer after

officers entered even though criticisms existed regarding how

officers tactically planned to enter suspect’s residence to execute

an arrest warrant); Conlogue v. Hamilton, 906 F.3d 150, 157 (1st

Cir. 2018) (“When possible, a warning is required before a police

officer resorts to the use of deadly force. …When—as in this

case—a gun is pointed toward officers during a standoff between

an armed man and law enforcement, a warning to disarm would

seem to imply that deadly force may be used if the warning is

not heeded.”); Sanzone v. Gray, 884 F.3d 736, 740 (7th Cir. 2018)

(officer did not act unconstitutionally by defending himself and

others once the suspect pointed a gun. “While the Estate

contends that [the suspect’s] warning shot would have been fired

straight up in the air, we will not assume that. …[Officer] Gray

did not need to wait and hope that [the suspect] was a skilled

marksman before taking action to shut down [his] threat.”);

Partlow v. Stadler, 774 F.3d 497, 502–03 (8th Cir. 2014) (deadly

force reasonable against suspect who refused commands to drop

the gun and moved his shotgun in a way leading officers to

believe he was aiming at them).

29

Knight v. Miami-Dade County, 2014 WL 11813876

(S.D. Fla. May 14, 2014), the officers were involved in

a deadly shooting and sought to exclude the plaintiff’s

use of force expert, who concluded, among other

things, the defendants’ actions “created the alleged

need for deadly force” and violated police procedures.

Id. at *5. The court allowed the expert to provide

testimony and opinions regarding whether the

officers’

“alleged

noncompliance

with

[the]

Department’s policies created the alleged need for

deadly force” because such testimony was “probative”

to the issue of “whether [the] Defendant Officers’ use

of deadly force was objectively reasonably.” Id. at *6.

See also Est. of Robinson v. City of Madison, 2017 WL

564682, at *10 (W.D. Wis. Feb. 13, 2017) (“The court

will not strike [expert’s] opinions regarding [officer’s]

pre-seizure conduct simply because that conduct

cannot itself give rise to a separate Fourth

Amendment violation.”); Devine v. Middletown Twp.,

2016 WL 1728372, at *5 (E.D. Pa. Apr. 29, 2016)

(allowing police practices expert to testify on “whether

the officers should have taken different steps, based

on their observations of the Decedent and the totality

of the circumstances they faced prior to the use of

deadly force.”); Est. of DiPiazza v. City of Madison,

2017 WL 1910055, at *8 (W.D. Wis. May 8, 2017)

(“Although ‘pre-seizure conduct’ cannot itself be the

basis for an independent, unplead Fourth

Amendment violation, it may be considered as part of

the ‘totality of circumstances’ that render the officers’

use of force was reasonable or unreasonable.

Therefore, evidence of pre-seizure conduct, including

as relied upon by experts, will not be excluded simply

because it cannot give rise to a separate violation.”);

30

Cox v. Wilson, 2016 WL 11260309, at *4 (D.Colo.

2016) (expert’s opinion that officer’s “field tactics

unreasonably escalated a common police field

encounter to a deadly force incident” is relevant, as

are expert’s “discussions of the preferred field tactics

themselves.”).

The time has come for Graham to be revitalized

for consistency and predictability in the lower courts.

Meritless excessive force claims drag officers past

early dismissal motions, costly discovery and

summary judgment practice, and through appeal.

See, e.g., Donahue v. Wihongi, 948 F.3d 1177 (10th

Cir. 2020) (pulling arrestee up, and pulling his arms

back for handcuffing, did not constitute excessive

force); Zivojinovich v. Barner, 525 F.3d 1059 (11th

Cir. 2008) (officer who escorted guest from hotel after

complaints of disturbance, and who had probable

cause, did not use excessive force by pulling his arm

up at an uncomfortable angle while escorting him; use

of uncomfortable hold to escort uncooperative and

potentially belligerent suspect was reasonable);

Gasser v. Vill. of Pleasant Prairie, 2022 WL 898743,

at *3 (7th 2022) (plaintiff’s excessive force allegations

were “very different” than video evidence; officer

merely put his hands on her shoulder to have her sit

down on a bench while she was under arrest awaiting

a sobriety tests); Legg v. Pappas, 383 F. App’x 547

(7th Cir. 2010) (officers acted reasonably in

transporting intoxicated detainee from residence to

squad car by grabbing a bicep and wrist).

“Totality of circumstances” as visioned by

Petitioner devolves the Graham factors into ordinary

negligence concepts where even similar cases have

31

different outcomes based on litigation tactics. The

Court should resist “malleable standards” that have a

way of “turning into vehicles for the implementation

of individual judges’ policy preferences.” Tennessee v.

Lane, 541 U.S. 509, 556 (2004) (Scalia, J., dissenting).

CONCLUSION

Bedrock principles involving threat to the

officer and citizen cooperation should guide the Court

to revitalize the Graham use of force standards so the

rule of law is consistent, predictable, practical, and in

accord with settled legal norms that have long roots

in the common law.

Respectfully submitted,

December 19, 2024

Remzy D. Bitar

Counsel of Record

Matteo Reginato

Municipal Law &

Litigation Group, S.C.

730 N. Grand Avenue

Waukesha, WI 53186

(262) 548-1340

rbitar@ammr.net