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 AMICI CURIAE THE TEXAS MUNICIPAL

LEAGUE INTERGOVERNMENTAL RISK

POOL, TEXAS MUNICIPAL LEAGUE, TEXAS

CITY ATTORNEYS ASSOCIATION, NATIONAL

ASSOCIATION OF POLICE ORGANIZATIONS,

TEXAS POLICE CHIEFS ASSOCIATION, COMBINED

LAW ENFORCEMENT ASSOCIATIONS OF TEXAS,

AND TEXAS MUNICIPAL POLICE ASSOCIATION, IN

SUPPORT OF RESPONDENT ROBERTO FELIX, JR.

Laura O’Leary

Counsel of Record

Francisco J. Valenzuela

Fanning Harper Martinson

Brandt & Kutchin, P.C.

One Glen Lakes

8140 Walnut Hill Lane, Suite 200

Dallas, TX 75231

loleary@fhmbk.com

(214) 369-1300

120136

A

(800) 274-3321 • (800) 359-6859

Attorneys for Amici Curiae

the Texas Municipal League

Intergovernmental Risk Pool,

Texas Municipal League,

Texas City Attorneys

Association, National

Association of Police

Organizations, Texas Police

Chiefs Association, Combined

Law Enforcement Associations

of Texas, and Texas Municipal

Police Association

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

A. The Fourth Amendment Standard is Based

on a Reasonable Officer on the Scene . . . . . . . . . 4

B. P r op e r A ppl ic at ion of t he Fou r t h

Amendment Avoids Perverse Consequences

a nd Decreases Da nger t o Of f icers,

Suspects, and the Public . . . . . . . . . . . . . . . . . . . . 5

1.

Courts should not encourage officers to

perform their duties timidly or to err

on the side of caution . . . . . . . . . . . . . . . . . . . 5

2.

Courts should not encourage suspects

to engage in dangerous behavior by

fleeing from law enforcement officers . . . . . 7

3.

Safety risks are minimized when officers

respond swiftly and routinely exercise

unquestioned command of a situation . . . . . 9

ii

Table of Contents

Page

4.

Ju d g e s a n d j u r i e s s h o u l d n o t

second guess an officer’s on-scene,

instantaneous threat assessment . . . . . . . . . 9

5.

The reasonable officer analysis must

account for perceptual distortions

off icers exper ience du r ing high

stress use-of-force events . . . . . . . . . . . . . . 10

C. The Court Should Reject Petitioner and Her

Amici’s Officer-Created Danger Theory . . . . . . 12

1.

Petitioner’s proposed liability standard

is unworkable . . . . . . . . . . . . . . . . . . . . . . . . 12

2.

Courts may review prior segments

of an incident only to determine the

officer’s knowledge . . . . . . . . . . . . . . . . . . . . 15

D. Officer Felix’s Actions Complied with

the Fourth Amendment . . . . . . . . . . . . . . . . . . . . 16

1.

Traffic stops and associated inquiries are

long standing law enforcement practices

which serve important safety interests . . . 17

2.

Police officers face significant potential

danger during traffic stops . . . . . . . . . . . . . 19

E. Courts Must Consider a Suspect’s Culpability . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Adams v. Williams,

407 U.S. 143 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Arizona v. Johnson,

555 U.S. 323 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18

California v. Hodari D.,

499 U.S. 621 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Cole v. Bone,

993 F.2d 1328 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . 14

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 6

Davis v. Romer,

600 Fed. App’x 926 (5th Cir. 2015) . . . . . . . . . . . . . . 14

Davis v. Scherer,

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

Delaware v. Prouse,

440 U.S. 648 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Devenpeck v. Alford,

543 U.S. 146 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Filarsky v. Delia,

566 U.S. 377 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iv

Cited Authorities

Page

Forrester v. White,

484 U.S. 219 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . 4, 10, 13, 14, 16

Greenidge v. Ruffin,

927 F.2d 789 (4th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 14

Gregory v. Zumult,

294 Fed. App’x 792 (4th Cir. 2008) . . . . . . . . . . . . . . 14

Hunter v. Bryant,

502 U.S. 224 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Kansas v. Glover,

589 U.S. 376 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Kentucky v. King,

563 U.S. 452 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

Lange v. California,

594 U.S. 295 (2021) . . . . . . . . . . . . . . . . . . . . . . . 7-9, 23

Lankford v. City of Plumerville, Ark.,

42 F.4th 918 (8th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 15

Lemmon v. City of Akron, Ohio,

768 Fed. App’x 410 (6th Cir. 2019) . . . . . . . . . . . . . . . 14

Maryland v. Wilson,

519 U.S. 408 (1997) . . . . . . . . . . . . . . . . . . . . . . 9, 18, 21

v

Cited Authorities

Page

Menuel v. City of Atlanta,

25 F.3d 990 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . 7, 16

Michigan v. Long,

463 U.S. 1032 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Michigan v. Summers,

452 U.S. 692 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Oakes v. Anderson,

494 Fed. App’x 35 (11th Cir. 2012) . . . . . . . . . . . . 15, 16

Ontiveros v. City of Rosenberg,

564 F.3d 379 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 7

Ornelas v. U.S.,

517 U.S. 690 (1996) . . . . . . . . . . . . . . . . . . . . . 10, 13, 16

O’Bert ex rel. Estate of O’Bert v. Vargo,

331 F.3d 29 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 16

Pennsylvania v. Mimms,

434 U.S. 106 (1977) . . . . . . . . . . . . . . . . . . . . . . 9, 18, 19

Plakas v. Drinski,

19 F.3d 1143 (7th Cir. 1994) . . . . . . . . . . . . . . . 10, 13-16

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . 14, 22, 23

Ramirez v. Knoulton,

542 F.3d 124 (5th Cir. 2008) . . . . . . . . . . . . . . . . . 14, 15

vi

Cited Authorities

Page

Richardson v. McKnight,

521 U.S. 399 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rodriguez v. U.S.,

575 U.S. 348 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Ryburn v. Huff,

565 U.S. 469 (2012) . . . . . . . . . . . . . . . . . . . . . 10, 13, 16

Salim v. Proulx,

93 F.3d 86 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . 16

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . 8, 14, 22, 23

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Terry v. Ohio,

392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. v. Arvizo,

534 U.S. 266 (2002) . . . . . . . . . . . . . . . . . . . . . 10, 13, 16

U.S. v. Cortez,

449 U.S. 411 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. v. Robinson,

414 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. v. Sharpe,

470 U.S. 675 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

vii

Cited Authorities

Page

Utah v. Strieff,

579 U.S. 232 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Whren v. U.S.,

517 U.S. 806 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Winzer v. Kaufman County,

916 F.3d 464 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . 6, 13

Winzer v. Kaufman County,

940 F.3d 900 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 6

Constitutional Provisions

U.S. Const. amend. IV . . . . . . . . . . . . . . 3-6, 8, 9, 13-18, 24

Statutes and Other Authorities

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. Penal Code §38.04(b)(1)(B) . . . . . . . . . . . . . . . . . . 23

Alexis Artwohl, Ph.D., Perceptual and Memory

D i s t o r ti o n s D u r in g O f f i c e r Inv olv e d

Shootings, AELE Lethal & Less Lethal

F orce Wor k shop, 20 08 Update, https://

www.aele.org/law/2008FPAUG/wb-19.pdf . . . . . . . 11

Dept. of Justice, Bureau of Justice Statistics, B.

Reaves, Police Vehicle Pursuits, 2012–2013

(May 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

FBI Releases Officers Killed and Assaulted in

the Line of Duty, 2023 Special Report and

Law Enforcement Employee Counts, https://

www.fbi.gov/news/press-releases/fbi-releasesofficers-killed-and-assaulted-in-the-line-ofduty-2023-special-report-and-law-enforcementemployee-counts; Officers Killed and Assaulted

in the Line of Duty, 2023.pdf, pages 4, 9,

last visited December 17, 2024 . . . . . . . . . . . . . . . . . . 6

The FBI’s data collection reports show that, in 2020,

60,105 officers were assaulted while on duty, and

18,568 officers were injured by assaults while

performing their duties. https://www.hsdl.org/

c/2020-leoka/, last visited on December 10, 2024 . . 20

D onova n C. K e l ley, Er i k a S ie g e l , Jol ie

B. Wor mwo o d , Un d e r s t a n din g Poli c e

Per for mance Un d er Stress, F r on t i er s

of P sychology, Aug. 9, 2019, https://pmc.

ncbi.nlm.nih.gov/articles/PMC6696903/ . . . . . . . . . 12

David A. Klinger, Rod K. Brunson, Police Officers’

Perceptual Distortions During Lethal Force

Situations, Criminology & P ublic Policy,

Feb. 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

T he Nat iona l Law En forcement Of f icers

Memorial Fund website reports 428 officer

deaths in 2020 and 660 officer deaths in

2021. https://nleomf.org /memorial /factsfigures/officer-fatality-data/officer-deathsby-year/, last visited on December 10, 2024 . . . . . . . 20

ix

Cited Authorities

Page

Over $40M worth of cocaine seized during traffic

stop near Geneseo, ISP says, https://www.msn.

com/en-us/news/crime/over-40m-worth-ofcocaine-seized-in-henry-county-illinois-statepolice-say/ar-AA1v4W2C#:~:text=Around%20

2%3A10%20p.m.%20on%20Friday%2C%20

N o v.% 2 0 2 9 % 2 C % 2 0 a n , a n d % 2 0 a % 2 0

s e a r c h % 2 0 u n v e i l e d % 2 0 1% 2 C 14 6 % 2 0

pounds%20of%20cocaine, last visited on

December 2, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Thomas D. Petrowski, J.D., Use-of-Force Policies

an d Trainin g, FBI L aw E n for c e m en t

Bulletin, October, 2002, https://leb.fbi.gov/

file-repository/archives/oct02leb.pdf . . . . . . . . . . . . . 7

South Carolina officer rescues woman mouthing

“ help me” du r ing tra ff ic stop, https: //

w w w.cbsnews.com /news/south- ca rolinaoff icer-rescues-woman-help -me -tra ff icstop-north-myrtle-beach/, last visited on

December 2, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Statistics on Law Enforcement Officer Deaths

in the Line of Duty from January through

July 2024, https:// le.f bi.gov/cjis-division/

cjis-link /statistics- on-law- enforcement off icer- deaths-in-the-line- of- duty-fromjanuary-through-july-2024, last visited on

December 17, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

INTEREST OF AMICI CURIAE1

Amici collectively represent thousands of local

governmental entities and law enforcement agencies,

tens-of-thousands of citizens, and hundreds-of-thousands

of police officers. Amici and their members are strongly

interested in obtaining clear guidance from this Court

relating to potential liability when officers use force in

connection with their duties. Amici believe that clear

guidance from this Court which recognizes the realities

of policing in high stress encounters involving the use

of deadly force will increase safety for law enforcement

officers, suspects, and citizens. Amici seek to assist this

Court by providing insight from the perspective of law

enforcement officers and their employing agencies.

Texas Municipal League Intergovernmental Risk

Pool (“TMLIRP”) is a self-insurance pool formed by over

2,500 participating governmental entities in the State of

Texas, including over 930 municipalities that have lawenforcement liability coverage through TMLIRP.

Texas Municipal League (“TML”) is a non-profit

association of over 1,170 incorporated cities that provides

legislative, legal, and educational services to its members.

Over 13,000 persons consisting of city mayors, council

members, city managers, city attorneys, and department

1. No counsel for any party in this matter and no party: (1)

authored this brief in whole or in part; or (2) contributed money that

was intended to fund the preparation or submission of this brief. No

person, other than TMLIRP, TML, TCAA, NAPO, TPCA, CLEAT,

TMPA, and their members or counsel, contributed money that was

intended to fund the preparation or submission of this brief. Amici

submit this brief pursuant to Supreme Court Rule 37.

2

heads are member officials of TML by virtue of their

respective cities’ participation. The TML legal defense

program was established to monitor major litigation that

affects municipalities and to file amicus briefs on behalf

of its members in cases of special significance to cities

and city officials.

Texas City Attorneys Association (“TCAA”), an

affiliate of TML, is an organization of over 600 attorneys

who represent Texas cities and city officials in the

performance of their duties.

National Association of Police Organizations (“NAPO”)

is a nationwide alliance of organizations committed to

advancing the interests of law enforcement officers. Since

NAPO’s founding in 1978, it has become the strongest

unified voice supporting law enforcement in the United

States. The organization represents over 1,000 police

units and associations, over 241,000 sworn officers, and

more than 50,000 citizens mutually dedicated to fair and

effective law enforcement.

Founded in 1958, Texas Police Chiefs Association

(“TPCA”) promotes, encourages, and advances the

professional development and high ethical standards of

senior police management personnel throughout Texas.

TPCA’s membership of 1,550 includes the law enforcement

management personnel of over 330 cities and agencies

representing a population served of more than 15 million.

Combined Law Enforcement Associations of Texas

(“CLEAT”) represents over 25,000 Police Officers,

Detention Off icers, and other Law Enforcement

Professionals across Texas. CLEAT advocates for the fair

and consistent application of the law for First Responders.

3

Founded in 1950, the Texas Municipal Police

Association (“TMPA”) represents over 33,000 state,

county, and local police officers and public safety

employees across Texas. TMPA promotes professionalism

in law enforcement through training, education, and

representation.

SUMMARY

Reasonableness is the touchstone for Four th

Amendment use-of-force analysis. This analysis must

take into account: (1) this Court’s holdings concerning

officer conduct; (2) perceptual distortions and different

mental processes officers experience during rapidly

developing, high stress encounters; (3) the many dangers

officers face—especially during traffic stops; and (4)

consequences for public safety. Contrary to Petitioner’s

contentions, officers are not “rewarded” for using force

or “incentivized” to do so when judges focus their

reasonableness analysis on the circumstances at issue at

the time the officer used force. 2

The Court should reject the officer-created danger

theory Petitioner and her supporting amici propose

because it conflicts with this Court’s precedent, disregards

the realities of policing, and would severely hamper law

enforcement by encouraging officers to stand down when

suspects resist or flee from law enforcement. Although

judges may review events leading up to the use of force

to determine what the officer knew when he or she used

deadly force, Petitioner and her supporting amici propose

an officer-created danger theory that would ask courts

2. Pet. Br. at 28, 34.

4

to review prior events for the purpose of judging the

officer’s earlier tactics, actions, and decisions. This would

improperly invite courts to second-guess a broad range of

officers’ conduct. The Court should provide clear guidance

to constrain to its proper purpose lower courts’ review of

officers’ earlier actions in encounters that culminated in

a use of deadly force.

In making the traffic stop, asking for the driver’s

license, ordering the driver out of the vehicle, and taking

swift and decisive action when a non-compliant suspect

engaged in vehicular flight, Officer Felix complied with

this Court’s precedents and with the requirements of

the Fourth Amendment. The Court should affirm the

judgment in Officer Felix’s favor.

ARGUMENT

A. The Fourth Amendment Standard is Based on a

Reasonable Officer on the Scene.

Fourth Amendment use-of-force analysis applies

the perspective of a reasonable officer, not a layperson.

Graham v. Connor, 490 U.S. 386, 396-97 (1989) (“The

‘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,” and it

“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.”).

5

B. Proper Application of the Fourth Amendment

Avoids Perverse Consequences and Decreases

Danger to Officers, Suspects, and the Public.

1.

Courts should not encourage officers to

perform their duties timidly or to err on the

side of caution.

This Court has rested its Fourth Amendment

“reasonableness” analysis in part on the value of avoiding

“perverse consequences.” Devenpeck v. Alford, 543 U.S.

146, 155 (2004). A reasonableness analysis that would

encourage officers to act with timidity, or to err on the

side of caution, would create perverse consequences and

would, itself, be unreasonable. Indeed, this Court has

recognized that avoiding unwarranted timidity on the

part of government officials is an important government

interest. Filarsky v. Delia, 566 U.S. 377, 389–90 (2012);

Richardson v. McKnight, 521 U.S. 399, 408-09 (1997); see

also Forrester v. White, 484 U.S. 219, 223 (1988) (“By its

nature, however, the threat of liability can create perverse

incentives that operate to inhibit officials in the proper

performance of their duties.”) (emphasis in original).

This Court has also noted that

police officers . . . routinely make close decisions

in the exercise of the broad authority that

necessarily is delegated to them. . . . In these

circumstances, officials should not err always on

the side of caution. Officials with a broad range

of duties and authority must often act swiftly

and firmly at the risk that action deferred will

be futile or constitute virtual abdication of

office.

6

Davis v. Scherer, 468 U.S. 183, 196 (1984) (citation omitted,

cleaned up); see also Hunter v. Bryant, 502 U.S. 224, 229

(1991) (per curiam) (“officials should not always err on the

side of caution”) (citation omitted).

Officers should not be encouraged to err on the side

of caution because, in the increasingly risky profession

of law enforcement, officers’ hesitation can be deadly to

officers and civilians. 3 Many judges have recognized the

importance of interpreting the Fourth Amendment in

a manner that discourages hesitation when an officer’s

use of deadly force is geared toward protecting officers

and members of the public.4 This is especially important

3. The FBI’s data collection shows that, from 2021-2023, more

officers were feloniously killed than in any other three-year period

for the last twenty years. Additionally, in 2023, more than 79,000

officers were assaulted while performing their duties. https://www.fbi.

gov/news/press-releases/fbi-releases-officers-killed-and-assaulted-in-theline-of-duty-2023-special-report-and-law-enforcement-employee-counts;

Officers Killed and Assaulted in the Line of Duty, 2023.pdf, pages 4, 9,

last visited December 17, 2024. The majority of officers’ felonious

deaths during the first seven months of 2024 occurred when officers

were engaged in investigative/enforcement activities. https://le.f bi.

gov/cjis-division/cjis-link/statistics-on-law-enforcement-officer-deathsin-the-line-of-duty-from-january-through-july-2024, last visited on

December 17, 2024. See also infra at 19-21.

4. E.g., Winzer v. Kaufman County, 916 F.3d 464, 482 (5th Cir.

2019) (Clement, J., dissenting in part) (objecting to a holding that

instructs officers to delay their responses, explaining that “when

a split second is all you have, waiting itself is a decision—one that

may bring disastrous consequences”); accord Winzer v. Kaufman

County, 940 F.3d 900, 901 (5th Cir. 2019) (Ho., J., joined by Smith,

Clement, Engelhardt, JJ., dissenting from denial of rehearing

en banc) (citing with approval Judge Clement’s prior dissent and

reasoning); Cole v. Carson, 935 F.3d 444, 457 (5th Cir. 2019) (en

7

because “[e]mpirical data indicate that law enforcement

officers responding to a threat hesitate to use force,

particularly deadly force, even in the face of an imminent

threat.”5

2.

Courts should not encourage suspects to

engage in dangerous behavior by fleeing from

law enforcement officers.

Officers should not be motivated to stand down in

response to a suspect’s non-compliance—especially during

a traffic stop—because this encourages resistance and

flight from law enforcement officers, which undermines

officers’ authority and endangers officers and the public.

This Court recognizes the important government

interest in ensuring compliance with law enforcement and

the danger suspects cause when they flee from officers.

Lange v. California, 594 U.S. 295, 324 (2021) (Roberts,

C.J., joined by Alito, J., concurring in the judgment) (citing

banc) (Jones, J., joined by Smith, Owen, Ho, Duncan, and Oldham,

JJ., dissenting) (noting that in the “increasingly risky profession

of law enforcement,” “‘action beats reaction’ every time”) (quoting

Ontiveros v. City of Rosenberg, 564 F.3d 379, 384 (5th Cir. 2009));

Menuel v. City of Atlanta, 25 F.3d 990, 997 (11th Cir. 1994) (praising

officers for “substitut[ing] themselves for innocent bystanders and

untrained and vulnerable family members as prospective objects

of the decedent’s violent exertions”).

5. Thomas D. Petrowski, J.D., Use-of-Force Policies and

Training, FBI Law Enforcement Bulletin, October, 2002, at

28, 31 n.18, https://leb.f bi.gov/file-repository/archives/oct02leb.pdf

(noting that “approximately 85 percent of law enforcement officers

feloniously killed in the line of duty never discharged their service

weapons”).

8

California v. Hodari D., 499 U.S. 621, 627 (1991)). This

is true even when the officer’s initial reason for engaging

the suspect is a minor offense, such as toll violations. Id.

(explaining that “[d]isregarding an order to yield to law

enforcement authority cannot be dismissed with a shrug

of the shoulders simply because the underlying offense

is regarded as innocuous” and that “[a]ffording suspects

the opportunity to evade arrest by [fleeing] rewards flight

and encourages dangerous behavior”).

A suspect’s flight “always involves the ‘paramount’

government interest in public safety.” Id. (citing Scott v.

Harris, 550 U.S. 372, 383 (2007)); see also Hodari D., 499

U.S. at 627 (“Street pursuits always place the public at

some risk, and compliance with police orders to stop should

therefore be encouraged.”). This Court recognizes that “[a]

fleeing suspect ‘intentionally places himself and the public

in danger.’” Lange, 594 U.S. at 324 (quoting Scott, 550 U.S.

at 384) (cleaned up);6 see also Scott, 550 U.S. at 382 n.9

(explaining that it was the suspect’s vehicular flight itself

that posed a threat of serious physical harm to others).

The Fourth Amendment’s reasonableness standard

should empower officers to ensure compliance from

suspects and to protect the public from fleeing suspects.

6. Chief Justice Robers and Justice Alito also recognize that

“[v]ehicular pursuits, in particular, are often catastrophic.” Id.

(citing Dept. of Justice, Bureau of Justice Statistics, B. Reaves,

Police Vehicle Pursuits, 2012–2013, p. 6 (May 2017) for the

proposition that the data shows an “average of about one death per

day in the United States from vehicle pursuits from 1996 to 2015”).

9

3.

Safety risks are minimized when officers

respond swiftly and routinely exercise

unquestioned command of a situation.

Officers need to feel confident that they can take swift

action to protect themselves and the public, particularly

when non-compliant suspects engage in vehicular flight.

Lange, 594 U.S. at 307 (“We have no doubt that in a great

many cases flight creates a need for police to act swiftly.”);

see also id. at 308 (explaining that an officer may act

immediately when facing an emergency, such as imminent

harm to himself or others); Maryland v. Wilson, 519 U.S.

408, 414 (quoting with approval this Court’s statement in

Michigan v. Summers, 452 U.S. 692, 702–703 (1981) that

“‘[t]he risk of harm to both the police and the occupants is

minimized if the officers routinely exercise unquestioned

command of the situation’”); see also Arizona v. Johnson,

555 U.S. 323, 330 (2009) (same).

These concerns fall neatly within a proper Fourth

Amendment reasonableness analysis because “‘it would

be unreasonable to require that police officers take

unnecessary risks in the performance of their duties.’”

Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per

curiam) (quoting Terry v. Ohio, 392 U.S. 1, 23 (1968)).

4.

Judges and juries should not second guess

an officer’s on-scene, instantaneous threat

assessment.

This Court has characterized as a “wise admonition”

the proposition that “judges should be cautious about

second-guessing a police officer’s assessment, made on the

scene, of the danger presented by a particular situation.”

10

Ryburn v. Huff, 565 U.S. 469, 477 (2012) (per curiam). This

is sensible in part because officers’ specialized training

and experience enables them to make inferences and

deductions that “‘might well elude an untrained person.’”

U.S. v. Arvizo, 534 U.S. 266, 273 (2002) (quoting U.S. v.

Cortez, 449 U.S. 411, 418 (1981)); see also, e.g., Ornelas

v. U.S., 517 U.S. 690, 699 (1996) (“a police officer views

the facts through the lens of his police experience and

expertise”).

Courts “recognize that the decision to shoot can

only be made after the briefest reflection, so brief that

‘reflection’ is the wrong word” and note that there is too

little time for the officer to consider alternatives “and too

much opportunity to second guess that officer.” Plakas v.

Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994) (relying, in part,

on Graham, 490 U.S. at 396–97). This is certainly true

in the case at bar, in which Officer Felix had but seconds

to react to Barnes’ non-compliance and vehicular flight.

Resp. Br. at 5-12.

5.

The reasonable officer analysis must account

for perceptual distortions officers experience

during high stress use-of-force events.

These concerns about second-guessing an officer’s onscene assessment of danger are particularly valid in light

of the mental processes in effect during rapidly developing,

high stress encounters, such as incidents involving lethal

force. Many studies demonstrate that police officers

overwhelmingly experience perceptual distortions,

including visual, auditory, and time distortions, when

11

faced with situations that led to the use of lethal force.7

One researcher noted that, “it is evident that reasonable

officers on the scene of police shootings are subject to

experiencing substantial levels of perceptual distortion

both prior to pulling the trigger and as they fire”

and concluded that “after-the-fact assessments of the

appropriateness of an officer’s behavior just prior to and

during a shooting must be judged from the perspective

of the perceptual and sensory distortions likely to occur

when a ‘reasonable officer’ becomes aware of a potential

threat of death or serious injury.” Klinger, supra, n.7, at

117.

Indeed, it appears that officers faced with lethal

force situations unconsciously switch to an “experiential

thinking” mode, which facilitates automatic, rapid

responses and is oriented toward immediate action rather

than reflection and delayed action. Artwohl, supra, n.7,

at 19-2. Other studies show that, “when police officers

feel secure in their status as an authority figure and do

not believe they are being undermined by a suspect or

7. E.g., Alexis Artwohl, Ph.D., Perceptual and Memory

Distortions During Officer Involved Shootings, AELE Lethal & Less

Lethal Force Workshop, 2008 Update, at 19-4, https://www.aele.

org/law/2008FPAUG/wb-19.pdf, (finding that, in a group of 157

police officers who were involved in shootings, 84% experienced

diminished sound, 79% experienced tunnel vision, and 79%

experienced time distortions during the events); id. at 19-3

(reviewing other studies, which identified time distortions in

61-82% of the events); David A. Klinger, Rod K. Brunson, Police

Officers’ Perceptual Distortions During Lethal Force Situations,

Criminology & Public Policy, Feb. 2009, 117-40 (finding that, in

a group of 80 police officers who were involved in shootings, 82%

experienced diminished sound, 51% experienced tunnel vision, and

79% experienced time distortions during the events).

12

civilian,” their biopsychological performance and decisionmaking abilities are improved. 8

Courts must recognize that, during deadly force

encounters, officers are highly likely to experience

perceptual distortions and “experiential thinking”

oriented toward rapid, automatic responses. Proper

application of the reasonable officer standard must account

for these realities.

C. The Court Should Reject Petitioner and Her Amici’s

Officer-Created Danger Theory.

1.

Petitioner’s proposed liability standard is

unworkable.

Petitioner and her supporting amici’s officer-created

danger theory opens wide the door to judges and juries

second-guessing, without clear standards, a broad range

of officers’ actions and decisions.9 A vague question about

whether an officer’s prior conduct created the danger

justifying the use of force or caused harm to a suspect

would, in contravention of this Court’s holdings, strongly

motivate officers to act with caution and timidity out of

fear of potential liability.10 Supra at 5-7.

8. Donovan C. Kelley, Erika Siegel, Jolie B. Wormwood,

Understanding Police Performance Under Stress, Frontiers of

Psychology, Aug. 9, 2019, https://pmc.ncbi.nlm.nih.gov/articles/

PMC6696903/.

9. Pet. Br. at 14-15, 17, 25, 27-29, 31-34, 47-48; Current and

Former Law Enforcement Officials (“CFLEO”) Amicus Br. at 8,

19-20, 22-24; Color of Change (“COC”) Amicus Br. at 3, 15.

10. Judges and jurors would answer these questions from the

safety of the courthouse, applying a different mode of thought,

13

This Court rejected a similarly standardless measure

in connection with Fourth Amendment challenges to

warrantless searches. Kentucky v. King, 563 U.S. 452,

466 (2011). The liability test at issue in King would have

considered whether it was “reasonably foreseeable”

that officers’ conduct would contribute to creation of an

exigency justifying a warrantless search. This Court

explained that the “reasonable foreseeability test would

create unacceptable and unwarranted difficulties for law

enforcement officers who must make quick decisions in the

field, as well as for judges” who would have to determine

its applicability after the fact. Id. This Court explained

that it would be nearly impossible for a court to determine

whether the “reasonable foreseeability” threshold had

been passed and concluded that the Fourth Amendment

does not require such a nebulous and impractical test. Id.

at 469. In their officer-created danger theory, Petitioner

and her supporting amici present a similarly unworkable

measure of liability.

All use-of-force incidents begin with an officer’s

decision to take some action. “If the officer had decided

to do nothing, then no force would have been used. In

this sense, the police officer always causes the trouble.

But it is trouble which the police officer is sworn to

cause, which society pays him to cause.” Plakas, 19 F.3d

without an officer’s specialized training and experience. Supra at 4,

9-10; see also, e.g., Winzer, 916 F.3d at 482 (Clement, J., dissenting

in part) (“we judges—mercifully—never face that split second.

Indeed, we never have to decide anything without deliberation—let

alone whether we must end one person’s life to preserve our own or

the lives of those around us”). This would contravene this Court’s

long-established analysis. Graham, 490 U.S. at 396-97; Ryburn,

565 U.S. at 477; Arvizo, 534 U.S. at 273; Ornelas, 517 U.S. at 699.

14

at 1150; see also, e.g., Lemmon v. City of Akron, Ohio,

768 Fed. App’x 410, 418-19 (6th Cir. 2019) (rejecting the

contention that, in their Fourth Amendment use-of-force

analysis, courts should consider whether officers created

the circumstances that led to the harm to the suspect);

Gregory v. Zumult, 294 Fed. App’x 792, 794 (4th Cir.

2008) (citing Greenidge v. Ruffin, 927 F.2d 789, 791–92

(4th Cir. 1991) for the proposition that “[u]nder Graham,

a court must focus on the moment that force was used.

Actions prior to that moment are not relevant in evaluating

whether the force used was reasonable, even if the

suspected criminal activity is relatively minor”); Cole v.

Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (explaining that

the “Fourth Amendment prohibits unreasonable seizures,

not unreasonable or ill-advised conduct in general,” and,

consequently, courts do not scrutinize “the events leading

to the seizure, for reasonableness under the Fourth

Amendment”) (emphasis added).

Indeed, this Court rejected an “officer-created

danger” argument when it disagreed with the district

court’s reasoning that “the danger presented by a

high-speed chase cannot justify the use of deadly force

because that danger was caused by the officers’ decision

to continue the chase.” Plumhoff v. Rickard, 572 U.S. 765,

776 n.3 (2014).11 This Court characterized this reasoning

as “irreconcilable with our decision in Scott.” Id.

11. Accord, Davis v. Romer, 600 Fed. App’x 926, 930 (5th Cir.

2015) (explaining that an argument that a police officer created

danger by jumping onto the running board of a vehicle, instead of

moving away from the car, after a driver began to move his vehicle, is

“‘a suggestion more reflective of the peace of a judge’s chambers than

of a dangerous and threatening situation on the street.’”) (quoting

Ramirez v. Knoulton, 542 F.3d 124, 130 (5th Cir. 2008) (additional

citation omitted)).

15

2.

Courts may review prior segments of an

incident only to determine the officer’s

knowledge.

In their review, courts

judge the reasonableness of the use of deadly

force in light of all that the officer knew. We

do not return to the prior segments of the

event and, in light of hindsight, reconsider

whether the prior police decisions were correct.

Reconsideration will nearly always reveal that

something different could have been done if

the officer knew the future before it occurred.

This is what we mean when we say we refuse

to second-guess the officer.

Plakas, 19 F.3d at 1150;12 see also, e.g., Lankford v. City

of Plumerville, Ark., 42 F.4th 918, 924 (8th Cir. 2022)

(rejecting conclusions of testifying officers who “were

able to review dashcam footage and make a calculated,

post hoc analysis,” because the officer on the scene had

to make a quick decision based on information he had

received, and “[w]e assess the reasonableness of deadly

force for Fourth Amendment purposes from the seizing

officer’s perspective at the time of the incident”) (citation

omitted); Oakes v. Anderson, 494 Fed. App’x 35, 39-40

12. See also Ramirez, 542 F.3d at 129-30 (“‘A creative judge

engaged in post hoc evaluation of police conduct can almost always

imagine some alternative means by which the objectives of the

police might have been accomplished. The question is not simply

whether some other alternative was available, but whether the

police acted unreasonably in failing to recognize or to pursue it.’”)

(quoting U.S. v. Sharpe, 470 U.S. 675, 686-87 (1985)).

16

and n.6 (11th Cir. 2012) (rejecting plaintiffs’ argument that

officers “made several tactical mistakes that escalated

the situation and ultimately resulted in [the suspect’s]

death,” explaining that the court’s “task is not to evaluate

what the officers could or should have done in hindsight”);

O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36–37

(2d Cir. 2003) (relying on Graham, 490 U.S. at 396, and

quoting Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) for

the proposition that, where officers use deadly force while

attempting to make an arrest, the Fourth Amendment’s

objective reasonableness inquiry “‘depends only upon the

officer’s knowledge of circumstances immediately prior to

and at the moment that he made the split-second decision

to employ deadly force’”); Menuel, 25 F.3d at 997 (citing

with approval Plakas, 19 F.3d at 1148-50, and explaining

that “police must pursue crime and constrain violence,

even if the undertaking itself causes violence from time

to time”).

The Cour t should reject Petitioner ’s off icercreated danger theory because: (1) like the “reasonable

foreseeability” test from King, Petitioner’s proposed test

would create unacceptable and unwarranted difficulties

for officers and judges; and (2) in contravention of this

Court’s precedent,13 Petitioner’s test would invite judges,

from the safety of the courthouse, to second-guess officers’

earlier tactics, actions, and decisions.

D. Officer Felix’s Actions Complied with the Fourth

Amendment.

Officer Felix complied with the Fourth Amendment

when he stopped the car Barnes was driving, asked for

13. Graham, 490 U.S. at 396-97; Ryburn, 565 U.S. at 477; Arvizo,

534 U.S. at 273; Ornelas, 517 U.S. at 699; Sharpe, 470 U.S. at 686-87.

17

Barnes’ license, ordered Barnes out of the car, and took

swift and decisive action when, after failing to comply

with Officer Felix’s commands, Barnes started the car and

began to drive away. Resp. Br. at 5-12. The Court should

reject amici’s arguments challenging the constitutionality

of traffic stops and associated inquiries.

1.

Traffic stops and associated inquiries are long

standing law enforcement practices which

serve important safety interests.

Amici’s arguments about traffic stops and associated

inquiries illustrate the problems with an amorphous

post hoc inquiry into officers’ conduct prior to a use of

deadly force. COC Amicus Br. at 4-14. Contrary to their

contentions, Officer Felix’s actions complied with the

Fourth Amendment. Amici’s arguments disregard this

Court’s long-established precedent and the inherent

dangers of traffic stops.

This Court unanimously rejected a challenge to

pretextual traffic stops, recognizing that traffic stops

are not only constitutionally permissible, but they are

“a cornerstone of law enforcement practice.” Whren v.

U.S., 517 U.S. 806, 810 (1996).14 During a traffic stop, it

is reasonable for an officer to check the driver’s license,

determine whether the driver has outstanding warrants,

and inspect the vehicle’s registration and proof of

insurance. Rodriguez v. U.S., 575 U.S. 348, 355 (2015).

Traffic stops and associated license and warrant checks

14. “We would hesitate to declare a police practice of long

standing ‘unreasonable’ if doing so would severely hamper effective

law enforcement.” Tennessee v. Garner, 471 U.S. 1, 19 (1985).

18

serve important law enforcement and safety interests.15

This Court has long recognized that states have a vital

safety interest in “ensuring that only those qualified to do

so are permitted to operate motor vehicles…and hence that

licensing…requirements are being observed.” Delaware

v. Prouse, 440 U.S. 648, 658 (1979).16 Routine warrant

checks are a precaution for officer safety,17 particularly in

the context of traffic stops, which “are ‘especially fraught

with danger to police officers.’” Rodriguez, 575 U.S. at 356

(quoting Johnson, 555 U.S., at 330); see also Michigan v.

Long, 463 U.S. 1032, 1047 (1983) (same); infra at 19-21.

Ordering a driver to step out of his car during a traffic

stop, even one for a minor offense, is reasonable under

the Fourth Amendment. Mimms, 434 U.S. at 108–11; see

also Wilson, 519 U.S. at 411–12; id. at 414 (the fact that

evidence of a more serious crime might be uncovered

during a traffic stop raises the possibility of a violent

15. For example, recent traffic stops for minor offenses resulted in:

(1) interception of a major cocaine smuggling operation; and (2) the rescue

of a woman who had been kidnapped at gunpoint. https://www.msn.

com/en-us/news/crime/over-40m-worth-of-cocaine-seized-in-henrycounty-illinois-state-police-say/ar-AA1v4W2C#:~:text=Around%20

2%3A10%20p.m.%20on%20Friday%2C%20Nov.%2029%2C%20

an,and%20a%20search%20unveiled%201%2C146%20pounds%20

of%20cocaine; https://www.cbsnews.com/news/south-carolina-officerrescues-woman-help-me-traffic-stop-north-myrtle-beach/, last visited

on December 2, 2024.

16. See also Kansas v. Glover, 589 U.S. 376, 381 (2020) (noting

that drivers with revoked licenses frequently continue to drive

and pose safety risks to others, including risks of motor vehicle

fatalities).

17. Utah v. Strieff, 579 U.S. 232, 241 (2016) (citing Rodriguez,

575 U.S. at 355).

19

encounter, and ordering a vehicle’s occupants to step out

of the vehicle denies them access to any possible weapon

that might be in the vehicle).18

2.

Police officers face significant potential danger

during traffic stops.

The concern for officer safety in connection with traffic

stops “is both legitimate and weighty,” and this Court has

“specifically recognized the inordinate risk confronting an

officer as he approaches a person seated in an automobile.”

Mimms, 434 U.S. at 110 (explaining that “‘[a]ccording to

one study, approximately 30% of police shootings occurred

when a police officer approached a suspect seated in an

automobile’”) (quoting Adams v. Williams, 407 U.S.

143, 148 n. 3 (1972)). Indeed, this Court has “expressly

declined to accept the argument that traffic violations

necessarily involve less danger to officers than other types

of confrontations,” noting instead that “it appears ‘that a

significant percentage of murders of police officers occurs

when the officers are making traffic stops.’” Id. (quoting

U.S. v. Robinson, 414 U.S. 218, 234 and n.5 (1973)).

Interactions with suspects are highly dangerous to

law enforcement officers. Indeed, during 2016, the year

when Officer Felix stopped Barnes, while performing their

18. Barnes did, in fact, have a gun in the glove compartment

of the vehicle he was driving. Resp. Br. at 49. Although Officer

Felix did not know this at the time, the fact that Barnes had a

gun within reach in the vehicle underlines the danger officers

face even during traffic stops for minor offenses and highlights

the threat occasioned by Barnes’ refusal to step out of the vehicle

when Officer Felix directed him to do so. Resp. Br. at 2, 6, 49; see

also id. at 35, 50-51.

20

duties, well over 100 officers were killed, more than 57,000

officers were assaulted, and more than 16,500 officers were

injured by assaults.19 These dangers have continued and

have grown. 20

Every year, police officers are feloniously killed in

connection with traffic stops. For instance, from November

4, 2024 to December 15, 2024, at least four officers were

killed in connection with traffic stops.21 Additionally, police

officers making traffic stops face potential death or injury

from vehicles. Each year from 2019 to 2024, between

fourteen and thirty police officers lost their lives in struck-

19. htt ps://ucr.f bi.gov/leoka/2016/home, last visited on

December 2, 2024 (noting that, during 2016, 118 officers who fell

within the FBI’s data collection were killed, 57,180 officers were

assaulted, and 16,535 officers were injured by assaults while

performing their duties); https://nleomf.org/memorial/facts-figures/

officer-fatality-data/officer-deaths-by-year/, last visited on December

2, 2024 (identifying 182 officer deaths during 2016—three and a

half officer deaths every week).

20. The National Law Enforcement Officers Memorial Fund

website reports 428 officer deaths in 2020 and 660 officer deaths

in 2021. https://nleomf.org/memorial/facts-figures/officer-fatality-data/

officer-deaths-by-year/, last visited on December 10, 2024. The

FBI’s data collection reports show that, in 2020, 60,105 officers

were assaulted while on duty, and 18,568 officers were injured

by assaults while performing their duties. https://www.hsdl.

org/c/2020-leoka/, last visited on December 10, 2024.

21. https://www.odmp.org/officer/27230-police-officer-jacobcandanoza; https://www.odmp.org/officer/27245-sergeant-elio-diaz;

https://www.odmp.org/officer/27221-police-officer-cooper-dawson;

https://www.odmp.org/officer/27209-police-officer-enrique-martinez,

last visited December 17, 2024.

21

by-vehicle accidents. 22 These numbers do not account for

near-misses and injuries, sometimes severe, which officers

suffer in connection with traffic stops. Officer Felix faced

significant danger when he approached Barnes’ car and

stood in a narrow median of a heavily trafficked highway,

sandwiched between Barnes’ car and a short barrier

separating Officer Felix from heavy on-coming traffic.

https://www.youtube.com/watch?v=9gbM_22fUbY, at

14:44:17 to 14:45:54; Wilson, 519 U.S. at 412 (noting the

danger to officers while standing by a driver’s door during

a traffic stop).

Barnes’ sudden flight also endangered members of

the public who were driving at highway speeds past the

vehicles in the median. Nationwide, tens-of-thousands

of people are killed and millions of people are injured in

motor vehicle incidents annually. In 2016, the year Officer

Felix stopped Barnes, 37,461 traffic fatalities occurred

in United States, and 2,443,000 traffic injuries occurred

nationwide. 23

Officer Felix reasonably perceived significant danger

to himself throughout his encounter with Barnes and to the

innocent motorists passing by at highway speeds. Officer

Felix acted as a reasonable officer when he instinctively

stepped onto Barnes’ vehicle and deployed deadly force

when Barnes disregarded Officer Felix’s orders, started

the car, and began driving away. Resp. Br. at 5-12.

22. https://www.respondersafety.com/news/struck-by-incidents/

yearly-fatality-reports/, last visited on December 17, 2024; see also

https://www.odmp.org/officer/27220-deputy-sheriff-ignacio-dan-diaz,

last visited December 17, 2024.

2 3 . h t t p s : / / c r a s h s t a t s . n h t s a . d o t . g o v /A p i / P u b l i c /

ViewPublication/812451, last visited on December 2, 2024.

22

E. Courts Must Consider a Suspect’s Culpability.

Notably absent from Petitioner and her amici’s

briefs is: (1) any explanation of how Officer Felix could

have reasonably de-escalated the situation when Barnes

turned on the car and, disobeying multiple commands,

began driving away from the traffic stop; and (2) any

acknowledgement of Barnes’ relative culpability for

the danger he created through his non-compliance and

vehicular flight from the traffic stop. Instead, Petitioner

and amici advocate a standard that, contrary to this

Court’s precedents, would disregard a suspect’s relative

culpability and require officers to stand down in response

to non-compliant suspects who create danger by engaging

in vehicular flight. Pet. Br. at 40-43; CFLEO Amicus Br.

at 13-22.

In determining the reasonableness of a use of lethal

force, it is appropriate to take into account relative

culpability of those whose lives are at risk, including the

suspect’s decision to engage in vehicular flight, and police

officers need not simply cease pursuit of a fleeing suspect

and hope for the best. Scott, 550 U.S. at 384-85; see also

id. at 384 n.10 (“Culpability is relevant, however, to the

reasonableness of the seizure—to whether preventing

possible harm to the innocent justifies exposing to

possible harm the person threatening them.”) (emphasis

in original).

In Scott, this Court declined to require police officers

to allow fleeing suspects to get away whenever they drive

recklessly and endanger others’ lives, “concluding that the

Constitution ‘assuredly does not impose this invitation to

impunity-earned-by-recklessness.’” Plumhoff, 572 U.S.

23

at 776 n.3 (quoting Scott, 550 U.S. at 385-86). This Court

explained that such a requirement would create obvious

perverse incentives encouraging suspects to engage in

dangerous vehicular flight. Scott, 550 U.S. at 385-86. 24

Reasonable officers would understand the need for

immediate, vigorous action for the officer’s protection

and for public safety when a noncompliant driver started

his car and began to flee on a heavily trafficked highway.

Supra at 19-21. A swift and strong response to a suspect’s

vehicular flight is justified even when the underlying

reason for the stop was minor, because the question is

not whether the underlying violation presents risks to

public safety, “but whether flight does so. And flight

from the police is never innocuous.” Lange, 594 U.S. at

331 (emphasis in original); id. (explaining that, “the fact

that a suspect flees when suspected of a minor offense

could well be indicative of a larger danger, given that he

has voluntarily exposed himself to much higher criminal

penalties in exchange for the prospect of escaping or

delaying arrest”).

Petitioner and amici’s protestations about the

unimportance of the underlying reason for the traffic

stop—unpaid tolls—fall flat in the face of Barnes’ noncompliance and attempted vehicular flight. The Court

should reject Petitioner and amici’s arguments which

disregard Barnes’ relative culpability.

24. In Texas, vehicular flight is recognized as a violent felony.

Tex. Penal Code §38.04(b)(1)(B).

24

CONCLUSION

The Fourth Amendment’s reasonable officer standard

must account for the realities of policing, dangers to

officers and citizens, and a suspect’s relative culpability.

This Court should clarify that judges may review

segments of an event which precede the use of deadly

force only for the purpose of determining the officer’s

knowledge, not to second-guess an officer’s prior tactics,

actions, or decisions. Officer Felix complied with the

Fourth Amendment in connection with his encounter with

Barnes. The Court should affirm the judgment in favor

of Officer Felix.

Respectfully submitted,

Laura O’Leary

Counsel of Record

Francisco J. Valenzuela

Fanning Harper Martinson

Brandt & Kutchin, P.C.

One Glen Lakes

8140 Walnut Hill Lane, Suite 200

Dallas, TX 75231

loleary@fhmbk.com

(214) 369-1300

Attorneys for Amici Curiae

the Texas Municipal League

Intergovernmental Risk Pool,

Texas Municipal League,

Texas City Attorneys

Association, National

Association of Police

Organizations, Texas Police

Chiefs Association, Combined

Law Enforcement Associations

of Texas, and Texas Municipal

Police Association