The Supreme Court recently agreed to hear Barnes v. Felix. The case concerns how to evaluate an excessive force claim under the Fourth Amendment. Should a court look at the reasonableness of an officer’s actions only in the narrow window when an officer’s safety was threatened, as required by the Fifth Circuit’s “moment of threat” doctrine? Or does the totality of the circumstances matter—including any actions officers took that may have unnecessarily increased the danger they faced?

The Cato Institute, together with the Law Enforcement Action Partnership (LEAP) and the Center for Policing Equity, filed a certiorari-stage amicus brief urging the Court to review the case. The brief argues that the moment of threat doctrine contradicts the original meaning of the Fourth Amendment. The common law protected human life by limiting the circumstances when deadly force could be used by government agents. Someone suspected of a petty offense could not be killed simply for fleeing. Deadly force was authorized only in response to forceful resistance to an arrest.

The Fifth Circuit’s contrary approach makes policing more dangerous, and the unnecessary use of deadly force undermines public confidence in law enforcement. Policing for profit is also a concern: Ashtian Barnes, on whose behalf the case was brought, died during a traffic stop for unpaid toll fees, the proceeds of which would have gone to the agency employing the constable who killed him.

Considering all of the causal circumstances surrounding police use of force is also important for protecting gun-owners’ lives. Consider the case of Andrew Scott. One night, officers pounded on his door. They had no search warrant, did not activate their emergency lights, did not say they were officers—and they were at the wrong address, to boot. As many law-abiding Americans would do, Mr. Scott retrieved his gun, then cautiously opened the door, keeping his lawfully owned firearm pointed downward. He saw an unidentified man in the shadows wielding a pistol, so he retreated inside. The man turned out to be a deputy, who immediately stormed inside and fatally shot Mr. Scott three times.

Under the Fifth Circuit’s approach, that use of force should not be considered excessive because at the moment the deputy fired his weapon, he was facing a bona fide threat to his safety—albeit one that he himself created. But under any faithfully originalist approach to the Fourth Amendment, everything leading up to that fateful moment is relevant to assessing the reasonableness of those fatal shots—especially the deputy’s decision to barge into the apartment without a warrant or truly exigent circumstances.

If the Supreme Court upholds the moment of threat doctrine, will any gun owner be safe from police errors? As David French has noted, there is a disturbing trend of officers making “mistakes that heighten their own sense of danger, and then they ‘resolve’ their own error by opening fire.” Besides Andrew Scott, French points to the death of Willie McCoy. When police shot McCoy, they were surrounding him, he had a gun in his lap, and he was starting to move. At that very moment, officers indeed faced danger. But rewind the encounter. When police arrived on scene, Mr. McCoy was asleep. Officers chose to place themselves right beside his car as they decided what to do. Within three seconds of Mr. McCoy beginning to stir, they shot him dead. Of course they perceived risk at that very moment. But their poor tactical decisions created that possibility of deadly peril.

Policing is dangerous work, both for officers and the people they encounter. Yes, the law should respect officers’ need to sometimes make quick judgments and respond decisively to threats. But it should also hold them accountable for creating threats they then meet with deadly force. That was the protection the common law provided human life. The Supreme Court should embrace that historical tradition and retire the Fifth Circuit’s moment of threat doctrine.

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