By J. Michael McGuinness, Esq.
Law enforcement use of force continues to be one of the most controversial public interest topics throughout America. A serious injury or death from police force usually stirs immediate litigation. Many police force incidents invoke a complex body of overlapping liability and defense principles. Police force disputes are typically decided based upon layers of federal and state constitutional standards, qualified immunity, state statutory provisions, common law standards and a vast array of defenses.
In Barnes v. Felix, 145 S.Ct. 1353 (May 15, 2025), the Supreme Court materially modified and clarified the applicable Fourth Amendment standard for analyzing law enforcement use offeree disputes. In a rare unanimous opinion authored by Justice Kagan, the Court affirmed key holdings from its use of force jurisprudence and overruled use of the "moment of threat" principle which limited the review of the force to the precise moment when the officer perceived the apparent threat. The Court reaffirmed and clarified its totality of circumstances test for use of force adjudication. The Court framed the issue and stated the conclusion as follows:
The question here is whether that framework [moment of threat principle] permits courts, in evaluating a police shooting (or other use offeree), to apply the so-called moment-of-threat rule used in the courts below. Under that rule, a court looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot. Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis. To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.
The centerpiece of the Court's decision provides that courts must analyze police use of force based on the "totality of the circumstances" as opposed to narrowly limiting the analysis to the precise moment of the threat. This article reviews the prevailing federal constitutional standards under Barnes and its antecedents, summarizes some basic use of force principles and outlines statutory principles of Vermont use of force law.
The Lower Courts Applied the Moment of Threat Principle
The plaintiff filed a constitutional tort action in a Texas state court alleging that Constable Felix violated a motorist's Fourth Amendment rights by allegedly using excessive force against him during a traffic stop. Following removal, the District Court granted summary judgment in favor of defendants based on the moment of force principle. 532 F.Supp.3d 463; 2022 WL 5239297.
On appeal, the Fifth Circuit affirmed and explained that the moment of threat rule only requires an inquiry as to whether an officer was "in danger at the moment of the threat that resulted in [his] use of deadly force." Under the moment of force rule, the Court stated that the inquiry is confined to whether the officer was "in danger at the moment of the threat that resulted in [his] use of deadly force." 91 F.4th 393, 397 (5th Cir. 2024). Under the moment of threat principle, any prior events "leading up to the shooting," including actions the officer took, were simply "not relevant."
Several circuit courts including the Second, Fourth, Fifth and Eighth Circuits had been employing the much narrower moment of threat principle. Certiorari was granted to resolve the conflict. The Supreme Court vacated the judgment and remanded for further proceedings. The Court held that the moment of threat principle inappropriately "constricts the proper inquiry into the 'totality of the circumstances.'"
The Core Facts of Barnes
Felix was patrolling a highway near Houston and received radio communication concerning an automobile with outstanding toll violations. Felix spotted and stopped the car. Felix asked Barnes for his license and proof of insurance. Barnes replied that he did not have his license with him, and that the car was a rental in his girlfriend's name. Barnes began to rummage through papers in the car, causing Felix to tell him several times to stop "digging around." Felix also commented that he smelled marijuana and asked if there was anything in the car he should know about. Barnes responded that he might have some identification in the trunk. Felix told him to open the trunk from his seat. Barnes did so, while also turning off the ignition. All of this happened in less than two minutes, as demonstrated by the dashcam recording of the incident.
Felix instructed Barnes to get out of the car. Barnes opened the door but did not exit; instead, he turned the ignition back on. Felix twice shouted to Barnes: "Don't f...g move." Felix unholstered his gun and, as Barnes moved the car forward, Felix jumped onto the car's doorsill. The sudden movement of the car and its immediate proximity to Felix caused him to believe that he was in imminent danger. Consequently, Felix fired two quick shots in defense, fatally wounding Barnes.
The Barnes' Analysis
The Court recited many basic principles of use of force law. The "touchstone of the Fourth Amendment is reasonableness ... as measured in objective terms." The Court reasoned as follows:
That inquiry into the reasonableness of police force requires analyzing the "totality of the circumstances." There is no "easy-to-apply legal test" or "on/ off switch" in this context. Rather, the Fourth Amendment requires, as we once put it, that a court "slosh [its] way through" a "factbound morass." Or said more prosaically, deciding whether a use of force was objectively reasonable demands "careful attention to the facts and circumstances" relating to the incident, as then known to the officer. For example, the "severity of the crime" prompting the stop can carry weight in the analysis. So too can actions the officer took...
