Review Granted in Barnes v. Felix: CAHP and PORAC File Amici Curiae Brief Urging the U.S. Supreme Court to Reject Creation of a “Provocation Rule” under the “Totality of the Circumstances” Analysis

     The Supreme Court recently granted
review in Barnes v. Felix, 91 F.4th 393, 394 (5th Cir. 2024), cert.
granted, No. 23-1239, 2024 WL 4394125 (U.S. Oct. 4, 2024), a case which is
likely to clarify the amount of weight given to the pre-shooting conduct of the
officer and the suspect, as well as provide direction on evaluating the
totality of the circumstances. The issue on appeal is framed as whether a court
looks at the reasonableness of an officer’s actions only at the moment when an
officer’s safety was threatened or more broadly at the totality of
circumstances, including any actions officers took that may have unnecessarily
increased the danger they faced.

On December 20, 2024, the Peace
Officers Research Association of California (“PORAC”) and the California
Association of Highway Patrolmen (“CAHP”) (collectively “Amici”) filed an Amici
Curiae, i.e. friend of the Court, brief in the United States Supreme Court in
support of Respondent, Officer Roberto Felix. David E. Mastagni was privileged to represent Amici. Read the full brief HERE.

Amici urged the Court not to adopt
a new standard for evaluating the use of deadly force which would negate an
officer’s justification if their pre-shooting conduct provoked the suspect,
notwithstanding the imminent threat posed by the suspect.  Amici advocated for the Court to affirm that
the primary consideration under the “totality of circumstances” required by Graham v. Connor[i] must be the moment of threat facing
the officer, and to reject considerations of officer tactics that result in a
deadly confrontation, consistent with County of Los Angeles v. Mendez[ii] and California
law.

Background

The Fifth Circuit and a minority of
other circuits employ the “moment of threat” standard for reviewing deadly
force, whereby “the focus of the inquiry should be on the act that led the
officer to discharge his weapon.”[iii]
Any of the officer’s actions leading up to the shooting are not considered
relevant for the purposes of an excessive force inquiry. The petitioners in the
present case argue that under the Fifth Circuit’s approach, officers are permitted
to create the threat that justifies force, so long as the force was justified
at the moment the weapon was fired. Petitioner’s appeal is predicated on the
flawed assumption that an otherwise reasonable use of force cannot be justified
if the officer’s conduct contributed to the threat posed by the suspect.

However, the purported distinction
between the “moment of threat” doctrine and other more traditional “totality of
circumstances” review applied by other circuits is mostly artificial, as that doctrine
recognizes the “most important Graham factor is whether the suspect
posed an immediate threat to anyone’s safety.”[iv]

            Review of Felix v. Barnes ostensibly
does not affect the Ninth Circuit which already considers the totality of circumstances
by examining “the facts and circumstances” when evaluating whether the use of
force was reasonable, including the “events leading up to the shooting.”[v]. Nevertheless,
this case is of particular importance in California where the legislature
recently codified the definition of the “’[t]otality of the circumstances’ [to]
mean[] all facts known to the peace officer at the time, including the conduct
of the officer and the subject leading up to the use of deadly force” under California
Penal Code section 835a(e)(3).

Although this definition of
totality of the circumstances was plucked from Graham and its progeny,
some civil rights attorneys have misconstrued this simple definition to resurrect
the defunct provocation theory, which argues that a police officer may be held
liable for an otherwise defensive use of deadly force if they intentionally or
recklessly provoke a violent confrontation.  This appeal provides an opportunity for the U.S.
Supreme Court to clarify that “officer-created jeopardy” is, at most, just one
of the many factors to be considered, and to expressly reject the argument that
any conduct in overcoming resistance that arguably contributed to the confrontation,
including failure to utilize de-escalation tactics, automatically negates an
officer’s right of self-defense and defense of others.

Summary of the
Facts

Officer Felix was a Traffic
Enforcement Officer with the Harris County Constable’s Office. Felix was
advised of a Toyota Corola on the tollway with outstanding toll violations. Felix
located the vehicle and conducted a traffic stop of the driver, Mr. Barnes. The
car had been rented by Barnes’s girlfriend, and the unpaid toll fees had been
incurred by her, not Barnes.

Barnes initially stopped. He stated
that he did not have identification on him. Felix smelled marijuana in the
vehicle. Felix ordered Barnes to turn off the vehicle. Barnes complied, removed
the key, and placed the keys near the gear shifter. Barnes then stated that his
identification documents might be in the trunk of the vehicle and popped the
trunk. Felix asked Barnes to exit the vehicle and opened the driver’s door.

Suddenly, Barnes grabbed the keys
and turned the car back on. Felix ordered him to stop but Barnes began to
accelerate. Trapped between the open driver’s door and the vehicle, Felix
jumped onto the vehicle frame, drew his gun and pointed it at Barnes, and ordered
him to stop. Barnes continued down the service lane, ignoring the commands to
stop. Officer Felix, fearing for his safety, shot and killed Barnes.

Trial Court and
Fifth Circuit Holdings

Attorneys for Barnes’s family
argued Officer Felix’s conduct in jumping on the floorboard of the vehicle created
the danger that led to his use of deadly force. They argued that if he had
remained standing on the ground, then there would have been no danger to him
when Barnes decided to flee, and under those circumstances, the use of deadly
force to apprehend him would not have been justified. Notably, this theory
affords little weight to the officer’s authority to detain a suspect and
prevent their flight, as well as the suspect’s elevation of the threat to the
officer by disobeying commands to stop and accelerating while Felix was
standing on the floorboard.

The district court found that
Officer Felix’s actions prior to the moment of threat, including that he
“jumped onto the door sill,” had “no bearing” on the ultimate use of force. The
court determined that the moment of threat occurred in the two seconds before
Barnes was shot. At that time, “Felix was still hanging onto the moving vehicle
and believed it would run him over,” which could have made Officer Felix
“reasonably believe his life was in imminent danger.” This “moment of threat”
test means that “the focus of the inquiry should be on the act that led the
officer to discharge his weapon. Any of the officers’ actions leading up to the
shooting are not relevant for the purposes of an excessive force inquiry in
this Circuit.” Petitioners appealed the district court’s decision to the Fifth
Circuit.

The Fifth Circuit affirmed the
district court’s judgment, holding that Officer Felix’s use of deadly force was
presumptively reasonable, the force was not excessive, and no constitutional
injury was found. It based its opinion on other Fifth Circuit precedent,
holding “[r]egardless of what had transpired up until the shooting itself, [the
suspect’s] movements gave the officer reason to believe, at that moment, that
there was a threat of physical harm.”[vi]
Even without considering qualified immunity, the court affirmed granting
summary judgment in favor of Officer Felix, noting the petitioner had failed to
demonstrate a genuine issue of material fact as to a constitutional injury. Overall,
the Fifth Circuit affirmed applying its “moment of threat” analysis.

Strikingly, Circuit Judge Patrick
E. Higginbotham wrote a concurring opinion to urge the U.S. Supreme Court to revisit
its Fourth Amendment analysis and resolve the circuit split between the moment
of threat doctrine and the totality of the circumstances review. Judge Higginbotham
criticized the moment of threat analysis as an “impermissible gloss on Garner
that stifles a robust examination of the Fourth Amendment’s protections” and
held “the totality of the circumstances merits finding that Officer Felix
violated Barnes’s Fourth Amendment right[s].” The Judge stated, “[i]t is plain
that the use of lethal force against this unarmed man preceded any real threat
to Officer Felix’s safety” because Barnes had begun to flee before Felix
stepped on the floorboard.

Notwithstanding whetther Officer Felix
could have made better tactical decisions, the Judge’s reasoning strongly
resembles the discredited provocation rule in that he equates the decision to
step on the floorboard with the decision to use deadly force. This reasoning ignores
the officer’s legal authority to detain Barnes. It also ignores the conduct of
the suspect in both attempting to flee and endangering an officer by
accelerating with him attached to the vehicle. While the petitioner frames the
issue as Officer Felix using deadly force to prevent toll evasion, in reality,
Barnes chose to put Officer Felix’s life in danger seemingly to evade a fine.

The Moment of
Threat Doctrine Adheres to the U.S. Supreme Court’s Use of Force Analysis

The U.S. Supreme Court’s Graham
decision held that “all claims that law enforcement officers have used
excessive force-deadly or not- . . . should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.”[vii] What
matters is whether the officer’s use of force was “objectively reasonable.” “The
operative question in excessive force cases is ‘whether the totality of the
circumstances justifie[s] a particular sort of search or seizure.’”[viii]
“When an officer carries out a seizure that is reasonable, taking into account
all relevant circumstances, there is no valid excessive force claim.”[ix]

Graham identified
non-exhaustive factors to consider, “including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.”[x]
This wholistic inquiry is “judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight,” and “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.”[xi]

Whether under moment of threat
review or totality of the circumstances review, reasonableness is “judged from
the perspective of a reasonable officer on the scene” and provides for
“allowance[s] for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving[.]”[xii] Despite the
petitioner’s contention to the contrary, under the moment of threat analysis, each
Graham factor is considered because “the reasonableness of an officer’s
action is determined based on the information possessed by the officer at the
moment that force is employed.”[xiii]

The “moment of threat” doctrine
properly emphasizes Graham’s second factor analyzing whether the suspect
posed an immediate threat to anyone’s safety. At the same time, the doctrine
does not focus on that factor to the exclusion of Graham’s first and
third factors—“severity of the crime at issue” and “whether he is actively
resisting arrest or attempting to evade arrest by flight.” Circuits that employ
the moment of threat doctrine recognize all of the factors are intertwined
within the officer’s perception.

Petitioner’s desired perspective
inevitably leads to making judgments about an officer’s actions with “20/20
vision of hindsight.” However, the U.S. Supreme Court has consistently reasoned
“judges should be cautious about second-guessing a police officer’s assessment,
made on the scene, of the danger presented by a particular situation.”[xiv]
Therefore, the moment of threat doctrine appropriately assesses the
reasonableness of the use of force when considered from the perspective of the
officer in that moment, and is consistent with Graham’s totality of the
circumstances analysis.

Totality of the
Circumstances Considerations in the Ninth Circuit

            Applying Graham,
the Ninth Circuit has long conducted a totality of the circumstances review of
Fourth Amendment claims brought against deadly force applications, albeit that
the U.S. Supreme Court has stepped in to prevent the distortion of this
analysis into a dispositive provocation test. In Mendez, the U.S.
Supreme Court corrected a Ninth Circuit decision that miscast the totality of
the circumstances review as a provocation rule wherein an officer is liable for
use of deadly force where the officer intentionally or recklessly provokes a
violent confrontation. The highest court rejected the Ninth Circuit’s “two-prong
test” for provocation which required: (1) the separate constitutional violation
must “creat[e] a situation which led to” the use of force and (2) the separate
constitutional violation must be committed recklessly or intentionally.[xv]

The Supreme Court criticized the Ninth
Circuit’s provocation rule as essentially searching for a different Fourth
Amendment violation during an encounter that can be used to render an otherwise
reasonable use of force unreasonable. Because the rule uses one constitutional
violation to manufacture an excessive use of force claim that has already been
rejected under established Fourth Amendment precedent, it is an improper rule
that lacks a constitutional basis. If the defendant has multiple Fourth
Amendment violation claims, they should each be analyzed separately.

            Petitioners’
arguments in this appeal potentially go farther than the rule rejected in Mendez,
as the Judge advocates a de facto provocation rule that does not even require a
separate Constitutional violation. Standing on the car’s floorboard may
represent questionable tactics, but it is not a Fourth Amendment violation.

Amici asked the Court to affirm
that liability must be limited to circumstances where an officer’s Fourth
Amendment violation itself proximately causes the harm. “Proper analysis of
this proximate cause question required consideration of the ‘foreseeability or
the scope of the risk created by the predicate conduct,’ and required the court
to conclude that there was ‘some direct relation between the injury asserted
and the injurious conduct alleged.’”[xvi] This
analysis must be conducted for each Fourth Amendment claim.  Critically, liability for a use of force
Fourth Amendment violation is viable only if the conduct both was unreasonable
under Graham and proximately caused the damages.

Mendez held a separate
constitutional violation cannot reverse an otherwise reasonable use of force. Amici
submitted their amicus brief seeking confirmation that the holding in Mendez
equally means that once a use of force is deemed reasonable under Graham,
it may not be found unreasonable by reference to an officer’s preceding
tactics. Amici urged the Court to clarify that lawful conduct preceding a
seizure, even if it potentially escalated the encounter, cannot be the basis of
a Fourth Amendment claim.

Totality of the
Circumstances Considerations in California

            California
caselaw and recent amendments to statutory law are consistent with the U.S.
Supreme Court’s Fourth Amendment precedent by focusing on the totality of the
circumstances known to or perceived by the officer at the moment of the use of
force. Despite recent attempts to legislatively resurrect a necessity or
provocation rule, sound reasoning defeated those efforts, ultimately resulting
in a statutory definition of “totality of the circumstances” that conforms with
this Court’s Fourth Amendment precedent.

The California Legislature
considered and rejected the enactment of a provocation rule in the new use of
force statute. First, A.B. 931 expressly sought to strip officers of the
justification defense if their conduct is “such a departure from the expected
conduct of an ordinarily prudent or careful officer under the same
circumstances as to be incompatible with a proper regard for human life, and
where an officer of ordinary prudence would have foreseen that the conduct
would create a likelihood of death or great bodily harm.” After that bill
failed, A.B. 392 included a similar provision denying a justification defense “unless
there was no reasonable alternative to the use of deadly force that would
prevent death or serious bodily injury to the peace officer or to another
person.” (A.B. 392 as introduced on February 6, 2010.)

This language was even more expansive
than the Ninth Circuit’s provocation rule. This standard would have replaced Graham’s
“objectively reasonable” standard with a so-called “necessary” standard that
would effectively mandate officers to use the least amount of force possible
and create a duty to retreat in the face of resistance, if feasible. This would
require officers to pause and reevaluate their actions under any change in
circumstance lest they unintentionally provoke an escalation of the situation
and become civilly and criminally liable for the outcome.

Understandably, numerous local and
statewide law enforcement associations joined with Amici to oppose the bill. On
April 10, 2019, Sacramento Deputy Julie Robertson and Attorney Kathleen
Mastagni Storm testified before the California Assembly Public Safety Committee
in opposition to this provision’s impairment of Constitutional self-defense
rights. In response to their powerful testimony, the language was amended out
of the Bill.

In 2019, California enacted an
amended version of A.B. 392 which codified the Graham principles by
requiring that the officer’s decision to “use force shall be evaluated from the
perspective of a reasonable officer in the same situation, based on the
totality of the circumstances known to or perceived by the officer at the
time.”[xvii]
The totality of the circumstances “includ[es] the conduct of the officer and
the subject leading up to the use of deadly force.”[xviii]
The statute expressly acknowledges judgment must not be made based on the
benefit of hindsight, and that the totality of the circumstances must “account
for occasions when officers may be forced to make quick judgments about using
force.”[xix]

Since the enactment of A.B. 392,
California courts have continued considering “an officer’s pre-shooting conduct
… as part of the totality of circumstances surrounding the use of force,” while
rejecting these variants of the provocation rule.[xx] The
Koussaya court warned “we must never allow the theoretical, sanitized
world of our imagination to replace the dangerous and complex world that
policemen face every day.”[xxi] The
court confirmed that under California’s new use of force standards, “[l]aw
enforcement personnel have a degree of discretion as to how they choose to
address a particular situation.”[xxii]
“As long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the ‘most reasonable’ action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability….”[xxiii]

Other California use of force cases
incorporate state negligence claims, broadening the analysis beyond the Fourth Amendment
use of force considerations by assessing whether pre-shooting conduct rendered
the ultimate use of force unreasonable. 
Nevertheless, “in a case . . . where the preshooting conduct did not
cause the plaintiff any injury independent of the injury resulting from the
shooting, the reasonableness of the officers’ preshooting conduct should not be
considered in isolation. Rather, it should be considered in relation to the
question whether the officers’ ultimate use of deadly force was reasonable.”[xxiv]
This analysis considers whether a particular use of force was reasonable given
the complete context, but does not permit a plaintiff to litigate each decision
made by an officer in isolation.[xxv]

Conclusion

In short, this appeal presents an
opportunity for Amici to encourage the Court to harmonize Graham’s
consideration of the totality of the circumstances with Mendez’s repudiation
of the provocation rule. The appeal presents an opportunity for the Court to clarify
that lower courts must conduct a wholistic review of the pre-shooting conduct
of both the officer and the suspect in considering all factors under the
totality of the circumstances review, but the primary focus should remain on
the moment of threat. Pre-shooting conduct, even if unreasonable or reckless,
should be but one of many factors considered, and the Court should affirm the
requirement in Mendez that separate claims for constitutional violations
must be analyzed separately. In so doing, the U.S. Supreme Court can also
protect California peace officers from efforts to misconstrue the definition of
totality of the circumstances in A.B. 392 as a de facto provocation rule by
mirroring the analysis of Koussaya.

David Emilio Mastagni is a partner with the law firm, Mastagni Holstedt, APC, specializing in labor and employment law representation, including trial and appellate litigation in California and federal courts. He is general counsel to
the CAHP and a PORAC Legal Defense Fund Panel attorney. David also provides legal analysis on legislation and
testimony before the Legislature on behalf of PORAC and CAHP.