WASHINGTON — Supreme Court justices on Wednesday appeared likely to allow an excessive force claim brought against a police officer over the shooting of a Black man following a routine traffic stop in Houston to move forward.
Ashtian Barnes, 24, was killed in April 2016 when the vehicle he was driving started moving forward while he was speaking to the officer.
Roberto Felix Jr., a traffic enforcement officer with the Harris County Precinct 5 Constable's Office, jumped on the car door sill when the vehicle moved and then shot Barnes twice. Barnes died at the scene.
At issue is whether lower courts, in analyzing whether Felix used excessive force, inappropriately focused on the exact moment he decided to shoot and not the moments leading up to it.
The ruling will help determine whether a civil rights lawsuit filed by Barnes’ mother, Janice Hughes, can move forward. She claims Felix used excessive force in violation of the Constitution’s Fourth Amendment. She also filed a separate claim against the police department, which is not directly at issue before the Supreme Court.
Justices from across the ideological spectrum appeared to agree that the approach taken by lower courts was wrong based on Supreme Court precedent that says the "totality of the circumstances" has to be taken into account.
That means more than just the two seconds prior to Felix's decision to use force should be considered, the justices indicated.
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But the ruling is likely to be a narrow one that simply sends the case back to lower courts for further review without determining whether excessive force was used, which would be for those courts to decide.
"So it seems as though we should kick it back [to lower courts] and let you guys fight it out as to the relevance of anything that happened beyond the prior two seconds," said Justice Elena Kagan.
Some justices also appeared concerned about issuing a ruling that would make it more difficult for police officers to do their jobs if they potentially could be sued for their role in escalating a situation.
Justice Brett Kavanaugh in particular seemed worried about any ruling from the court that would indicate it would be unreasonable for an officer to jump onto a car when the driver is seeking to drive away.
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"What's an officer supposed to do when at a traffic stop and someone pulls away. Just them them go?" he asked. He noted that in some situations, the driver might be about to commit criminal acts, including violent ones.
Justice Neil Gorsuch also appeared to oppose the court getting into the question of whether the officer's actions led to the use of force, but seemingly for an opposite reason — that he did not want the court to issue a decision that is too pro-police.
"Why would we put a thumb on the scale that way and say that it's almost impossible to make out a Fourth Amendment claim in those circumstances given the varied nature of encounters between police officers and citizens across the country?" he asked.
In an interview with NBC News, Hughes said she was pursuing the case because she wants people to know that "my son was a victim."
Almost five years after the death of George Floyd, another Black man killed by a police officer, "nobody's policing the police," she added.
Although lower courts ruled against Hughes, both a district court judge and a judge on the New Orleans-based 5th U.S. Circuit Court of Appeals said that the precedent adopted by some courts that limits consideration of the moments leading up to the use of force was wrong and should be overturned.
That mode of analysis, called the "moment of the threat doctrine," would be nullified nationwide if the Supreme Court rules in Hughes' favor. Such a ruling would remove one barrier to plaintiffs bringing claims against police officers.
If courts ultimately allow Hughes' case to move forward, it would not affect Felix's ability to invoke the qualified immunity defense, which protects cops if it was not "clearly established" at the time of the incident that their actions were unlawful.
