The Volokh Conspiracy
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Prof. Robert Leider on the arguments in Barnes v. Felix
Professor Robert Leider, who writes in both constitutional law and criminal law, passed along these comments on the Supreme Court's recent oral argument in an excessive force case and I thought readers might be interested in them:
For scholars of both criminal law and federal courts, the Supreme Court's oral argument yesterday in Barnes v. Felix will be noteworthy. The Supreme Court appears dangerously close to sleepwalking into a major revision of police self-defense law. For federal courts scholars, meanwhile, yesterday's oral argument stood as a painful reminder of how the Court has corrupted certiorari review by detaching itself from deciding actual cases.
This case involves the 2016 shooting of Ashtain Barnes by Officer Roberto Felix, Jr. Officer Felix pulled Barnes over because he suspected that the rental car Barnes was driving committed toll violations. During the traffic stop, Barnes tried to flee. As Barnes was fleeing, Officer Felix stepped on the car and ordered Barnes to stop his flight. Barnes refused and took off with Officer Felix hanging dangerously on the side of the car. Officer Felix then shot Barnes, claiming that he feared for his life. The dashcam footage of the traffic stop can be viewed here.
In proceedings below, the district court and the Fifth Circuit applied what Judge Higginbotham labeled the "moment of threat doctrine." Both lower courts inquired into whether Officer Felix reasonably believed that his life was in danger at the moment that he fired the lethal shots. The Fifth Circuit's majority opinion explained that, because of Fifth Circuit precedent, the court must "focus on the precise moment of the threat," disregarding the events that came before. Judge Higginbotham, the author of the majority, also wrote a concurrence in which he contended that the Fifth Circuit's precedents erroneously prohibited courts from considering relevant facts that occur before the moment of threat. Barnes sought review on "[w]hether courts should apply the moment of the threat doctrine when evaluating an excessive force claim under the Fourth Amendment."
Judge Higginbotham's label of a "moment of threat doctrine" is misleading and oversimplistic. In self-defense law, the idea that courts examine the moment of threat stands for at least four different legal principles:
- Imminence: Individuals may not use defensive violence to preempt threats in the distant future (i.e., the threat of harm must exist at the moment force is used)
- No retaliation: Individuals may not claim the privilege of self-defense to retaliate against past wrongs (i.e., they may not use defensive force after the moment of threat has ceased)
- Epistemic: The legitimacy of force is viewed at the moment of threat by what the victim reasonably believes, not with the benefit of hindsight
- Breadth of circumstances considered when judging legitimacy of force: When judging the necessity of self-defense, courts focus on the moment of threat; they disregard prior actions by a victim when those actions are not of a narrow class that will cause the victim to forfeit his right of self-defense (even if those actions, in some metaphysical sense, causally contribute to the conflict).
Barnes squarely presented the fourth principle. The only substantial legal question in this case is whether Officer Felix's decision to step onto the vehicle as it was fleeing caused him to forfeit his right of self-defense. I think the answer here is no, and obviously so. Officers have a right of pursuit, even when suspects flee from misdemeanors and petty offenses. Officers also have a right of self-defense if a suspect places their lives in danger during the pursuit. When Barnes fled, Officer Felix was well within his right to step onto the vehicle and try to get Barnes to stop. When Barnes placed Officer Felix's life in danger by continuing flight with Officer Felix trapped on the car, Officer Felix could then use deadly force in self-defense.
In framing the circumstances that led to the necessity of force, courts are supposed to disregard legally irrelevant prior actions by the victim. For example, officers are not required to desist pursuit by the threat of violence. Thus, Officer Felix did nothing wrong by pulling Barnes over or by stepping on the car when he tried to flee, even if (in metaphysical terms) Officer Felix contributed to the need to use force. Similar principles apply in private self-defense cases, too. Usually, courts do not ask whether the victim causally contributed to the confrontation by doing something abstractly unreasonable, such as by walking through a dangerous neighborhood at night. Inquiring into such facts would inhibit people's freedom by giving aggressors a violent veto over others conduct.
That is not to say, as Judge Higginbotham apparently believed, that we never inquire into preexisting facts. There are narrow classes of circumstances in which a person's preexisting conduct could cause him to forfeit a right of self-defense. First, individuals who precipitate the conflict through certain unlawful actions are deemed the unlawful aggressors, and unlawful aggressors cannot appeal to self-defense when they "protect" themselves against their victims. (There can be a limited exception when victims respond with unnecessary or disproportionate force.) Second, as Kim Ferzan has explained, provocateurs lose their right of self-defense when they deliberately provoke a victim so that they can kill their victim under the pretext of self-defense. One might say that a provocateur is estopped from claiming self-defense. And third, at common law, individuals could seek legal redress against plain-clothes officers who tried to arrest them without announcing that they were peace officers acting with legal authority. Without such an announcement, the arrestee would not have fair notice that the officer was using lawful force and could reasonably suspect that he was being subject to an unlawful abduction. Sometimes, too, statutes add additional narrow categories of individuals who are disabled from acting in self-defense. States that follow the Model Penal Code, for example, require individuals to surrender property to a person acting under a claim of right before using defensive force.
The Justices, however, seemed stubbornly uninterested in grappling with the real legal issue in the case: Did Officer Felix forfeit his right of self-defense by (imprudently) stepping onto the car? Instead, they wanted to answer the strawman question whether courts are categorically precluded from considering any circumstances that arose before the moment of threat. Judge Higginbotham's concurrence notwithstanding, that is not a doctrine any court applies. The Fifth Circuit, for example, has never held that an officer who feloniously attacked a person could shield himself from liability by claiming that the victim placed his life in danger through defensive force at the moment force was used. The real question is which facts prior to the moment of threat are legally relevant. And as the prior paragraph details, the traditional answer is not many. For confrontations, the law places blame on the violent aggressor, not the victim.
During oral argument, the Justices struggled with the basic legal principles that govern this case. This case involves a shooting by a public officer in self-defense while making an arrest. It is a hybrid of self-defense and public authority defenses. The Justices did not seem to realize that the legal principles that apply in this case are different from the Court's other Fourth Amendment cases (e.g., Tennessee v. Garner, 471 U.S. 1 (1985)), which typically involve the use of deadly force solely to effectuate an arrest. (Here, Officer Felix could not have used deadly force solely to effectuate an arrest because Barnes was suspected only of committing petty offenses, not violent felonies.) Justice Gorsuch believed that the common law standard was "totality of the circumstances" and that the reasonableness of the officer's actions throughout the encounter were "questions for the jury." Oral arg. trans. at 37. But to the contrary, the common law disregarded prior actions that would not lead to a forfeiture of self-defense, even if those actions were abstractly unreasonable. Generally, the kinds of actions that would cause an officer to forfeit his right of self-defense involved breaches of the suspect's rights of personal security, liberty, or property owed to the suspect (which would have made the officer a trespasser).
The end result is that the Court could sleepwalk into a major revolution of police self-defense law. At argument, most Justices wanted to reverse the Fifth Circuit by holding that courts are not limited to evaluating only the moment of threat when judging the reasonableness of police use of force. But they seemed uninterested in detailing what preexisting circumstances are legally relevant to examining the legitimacy of police force. Replacing the Fifth Circuit's opinion with a wide-ranging totality of the circumstances test would be a major (and probably unintended) doctrinal change. It may mean that courts strip officers of their defensive rights for imprudent actions that casually contribute to the confrontation.
For federal courts scholars, the Barnes argument is a sad reminder of what certiorari jurisdiction has become. The Court signaled no desire to decide the specific case before it (was Officer Felix's use of force justified?). Instead, Barnes seems poised to answer an abstract (and misleading) legal question presented in a certiorari petition. At best, this will result in doctrine that is unhelpful and irrelevant. At worst, the Court will unintentionally warp Fourth Amendment police self-defense law.
Finally, the Court exhibited its usual indifference towards the real-world costs of its inability to decide actual cases. The Supreme Court case pitted Hogan Lovells against Williams & Connelly, probably incurring millions of dollars of litigation costs (which the firms likely absorbed pro bono). That pro bono assistance will probably disappear once the case is remanded to the lower courts. The parties will incur tens (if not hundreds) of thousands in further litigation costs. At best, the Supreme Court's judgment will be narrow and largely meaningless: that courts must consider more than the precise moment of threat, without offering any further meaningful guidance about which circumstances count. The parties will be forced back to square one to litigate whether Officer Felix's decision to step on the vehicle stripped him of his right of self-defense. If the Court decided the case, as it should, I suspect that it would affirm the Fifth Circuit's judgment while explaining that Judge Higginbotham misunderstood the law. But deciding actual cases and controversies seems to be the one thing the modern Supreme Court cannot do.
Disclosure: I consulted and mooted the respondent in this case.
