Barnes v. Felix and the “moment of threat”

At issue is whether officers’ use of fatal force should be judged only at the “moment-of-threat.” Generally, for most other issues — such as probable cause (for search or arrest) and reasonable suspicion (for stop or frisk) — the court uses “totality of the circumstances.” You build a case, in effect, before making a decision. And generally for use-of-force issues, “objectively reasonable” (from the perspective of another police officer at the scene) is the standard. All right and good.

But “moment-of-threat” has always struck me as weird. Because a cop can screw everything up, create a threat even, but then a shooting is OK because there really is a threat at the “moment” the cop pulls the trigger? OK. This was an issue on the 2014 shooting of Tamir Rice in Cleveland, the kid with a replica gun. It was a horrible policing. But the kid was holding a replica gun thus the at the moment of threat the shooting was justified and reasonable. But it shouldn’t have been.

Puts me in a bad situation when I am seen as “defending” the cops because I know what the rules are, even when I also think the shooting is horrible. But I don’t make the rules. The Court does.

Under the “moment-of-threat” concept, events “leading up to the shooting” are “not relevant.” Don’t blame me for pointing out what Court’s says the is constitutional! (Ed note: They blame me.)

Anyway, the court just changed their mind about this.

The new Law of the Land say: “A court deciding a use-of-force case cannot review the totality of the circumstances if it has put on chronological blinders.” And “A court cannot thus ‘narrow’ the totality-of-the-circumstances inquiry, to focus on only a single moment.”

This seems eminently reasonable.

I applaud this decision.