The most anticipated event at the U.S. Supreme Court today was the oral argument in the birthright citizenship case.
While the question of birthright citizenship, which the Romans called jus soli, is important both in terms of constitutional law and American customs and mores, the underlying question in the case raises a procedural issue that will affect the litigators who follow this blog the most.
That is the question of whether cases involving injunctive or declaratory relief should be resolved by the issuance of nationwide injunctions and orders or just be limited to the actual parties and the district in which the case is at bar. The consolidated cases currently before the Court could be decided expeditiously. In any event, we shall follow developments closely and report promptly when a decision is issued.
For today, only one decision was forthcoming, with Justice Kagan writing for a unanimous Court in Barnes v. Felix, a not-insignificant case that reads like a law school exercise, but a very vivid and immediate one. Law enforcement officer Roberto Felix, Jr., pulled Ashtian Barnes over for suspected toll violations. Barnes ignored the officer’s order to exit the vehicle and began to drive away. Felix immediately jumped onto the doorsill and fired two shots into the car, fatally wounding Barnes, who was able to stop the car before he died. The entire encounter took five seconds, and only two seconds elapsed from the time the officer stepped onto the doorsill of the car until he fired.
On her son’s behalf, Barnes’s mother sued Felix, alleging that Felix had used excessive force in violation of the Fourth Amendment. In granting and upholding summary judgment in favor of Felix, the trial court and the U.S. Court of Appeals for the Fifth Circuit applied the “moment of threat” rule, which asks only if the officer was “in danger at the moment of the threat that resulted in [his] use of deadly force.” That rule renders irrelevant the examination of the events preceding the shooting. Because Felix reasonably could have believed that his life was in danger at the critical moment, the shooting was held to be lawful.
However, the Supreme Court unanimously vacated the Fifth Circuit’s judgment and remanded the case for further proceedings in what, I respectfully suggest, was a reasonable, thoughtful, and well-written opinion by Justice Kagan, whose writing is generally down-to-earth and direct.
The Court’s opinion begins with the recognition that there is no “easy-to-apply legal test” or “on/off switch” in this analysis. “Rather, the Fourth Amendment requires . . . that a court ‘slosh [its] way through’ a ‘factbound morass.’” Having done considerable sloshing, the Court held that a claim of excessive force during a stop or arrest is analyzed under the Fourth Amendment to establish whether the force applied was objectively reasonable from “the perspective of a reasonable officer at the scene.” In turn, this requires analyzing the “totality of the circumstances.”
But, contrary to the lower courts, the Supreme Court noted that the “totality of the circumstances” inquiry has no time limit. “While the situation at the precise time of the shooting will often matter most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones. Prior events”—such as the nature of the crime or warnings given to the suspect— “may show why a reasonable officer would perceive otherwise ambiguous conduct as threatening, or instead as innocuous.”
In the post-George Floyd times of fractious controversies over police confrontations with citizens, today’s decision demonstrates that all the Justices recognize the difficulty in recreating the conditions that have led to a police shooting and the mindsets and actions of both officers and suspects. The resolution of this case sensibly requires that analyzing “facts and circumstances” means considering all the facts and circumstances, beyond just the moment in which deadly force is employed.