The Next Tennessee v. Garner or Graham v. Connor?

SCOTUS oral arguments set for next week

The Supreme Court of the United States (SCOTUS) will hear oral arguments in a case known as Barnes v. Felix on Wednesday January 22^nd. It will surely have far-reaching implications for how the courts asses police use of force and whether or not force is determined as “excessive.” The decision, which will likely come down in the summer, may impact use of force judgements, police departmental policy, etc.

The two main SCOTUS decisions impacting how force is interpreted in a legal context are Tennessee v. Garner (1985) and Graham v. Connor (1989). In Garner, SCOTUS struck down a Tennessee law that allowed police to use deadly force to prevent the escape of a fleeing felon. A Memphis PD officer shot and killed 15-year-old Edward Garner as he was hopping a fence to allude police following a burglary. He was unarmed and posed little threat. The decision essentially lifted the floor for those remaining police departments who were still following the “fleeing felon” standard – forcing them to adopt deadly force policies that only allowed officers to discharge their firearms in “defense of life” situations (ASIDE: many metropolitan PDs had adopted more restrictive policies following that of the NYPD through the 1970s and early 1980s).

In Graham, SCOTUS ruled that police use of force must be evaluated using the “objective reasonableness” test. That is, based on the facts and circumstances of each case and whether a reasonable officer on the scene would have acted in a similar way – as opposed to determinations made with the benefit of hindsight.

Those two decisions are now 30 and 26 years old, respectively. The case before the court might be as monumental as those in 1985 and 1989.

Here is a brief review of the facts of the case. Jacob Sullum from Reason.com has done a good job outlining all that you need to know. However, if you want to read the full set of briefs, then you can do so here:

In April of 2016, 24-year-old Ashtian Barnes was driving his girlfriend’s rental car in Harris County, Texas. He was pulled over by police officer Roberto Felix Jr. because the license plate of the rental was linked to toll violations from a previous driver (not from Barnes or his girlfriend).

Barnes pulled over when he saw the officer’s lights and sirens. When asked for his license and proof of insurance, Barnes did not immediately have the documents but disclosed that it was a rental car that had been rented in his girlfriend’s name. According to the officer, Barnes was “digging around” and was asked to stop. Officer Felix Jr. claimed to smell marijuana and asked if there was anything illegal in the car. Barnes turned off the vehicle, popped the trunk as ordered by the officer, and “told the officer he ‘might’ have the requested documents in the trunk.”

Three minutes into the traffic stop, Felix ordered Barnes out of the car. Barnes initially opened the door, but then restarted the car and began to pull away. Officer Felix jumped onto the moving car and shot Barnes in the head twice – killing him (another ASIDE: a subsequent search did not find any marijuana).

Now to the history that leads us to oral arguments before SCOTUS:

Janice Hughes Barnes, the deceased’s mother and plaintiff, filed a federal civil rights lawsuit against Officer Felix on Ashtian’s behalf. A federal judge dismissed the lawsuit, and the dismissal was upheld by the US Court of Appeals for the 5^th Circuit.

Notably, both courts were bound by 5^th Circuit precedent to focus only on the “moment of the threat” and to ignore the facts and circumstances preceding it (e.g., Felix’s potential recklessness and other precipitating actions).

*The main issue, from a legal standpoint, is that different circuit courts are interpreting the reasonableness of police use of force in different ways. The “moment of the threat”-only standard is embraced by four other circuit courts (like the 5^th Circuit), but rejected eight other circuit courts. It seems like SCOTUS will determine whether the 5^th Circuit’s interpretation (plus the other 4) is consistent with the 4^th Amendment. It should standardize the use of force interpretation across all 13 appellate courts since there currently is INCONSISTENCY.

Based on these 5 circuit courts’ interpretation, all facts and circumstances that occurred up until the moment Felix decided to discharge his firearm are irrelevant. How, you might ask? Does that violate both Garner and Graham in that objective reasonableness is based the facts and circumstances (i.e., the totality) of each case?

Even the judge who authored the 5^th Circuit’s opinion, which upheld the dismissal of the initial federal civil rights lawsuit, elaborated on the “very narrow approach” that precedent had set re: the reasonableness of use of force:

The initial judge “rightfully found that [his] reasonableness analysis under the Fourth Amendment was circumscribed to the ‘precise moment’ at which Officer Felix decided to use deadly force against Barnes.” He continued, “this Circuit's ‘moment of threat doctrine’ flouts the Supreme Court's instruction to look to the totality of the circumstances when assessing the reasonableness of an officer's use of deadly force.”

Finally, he warns that ignoring “an officer's role in bringing about the ‘threat’ precipitating the use of deadly force lessens the Fourth Amendment's protection of the American public, devalues human life, and ‘frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment’.”

I’ll be curiously listening to the oral arguments and patiently awaiting the SCOTUS’ ultimate decision in the summer.

By the way, I’ll have more to report regarding police departmental policy language and shooting at moving vehicles very soon…