GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Accepted

Abstract

On May 15, 2025, the Supreme Court issued a unanimous decision in Barnes v. Felix, rejecting the Fifth Circuit’s “moment of threat” doctrine, which limited courts assessing the reasonableness of a law enforcement officer’s use of force to considering only those facts and circumstances known to the officer at the moment of the threat. Under the Fifth Circuit’s narrow time-framing approach, any pre-seizure conduct of the officer, i.e., acts occurring before the officer seized the individual, that may have contributed to the dangerous situation could not be considered as part of the reasonableness inquiry.

Pre-seizure officer conduct that contributes to an officer’s need to use deadly force to protect himself has been called “officer created jeopardy” because such prior acts create or contribute to the situation of danger that put the officer’s life in jeopardy. Whether such conduct of the officer may be considered by the trier of fact was one of the critical questions underlying this case. Another critical question involved how broadly or narrowly to interpret the time frame.

Rejecting the Fifth Circuit’s narrow approach, the Court reaffirmed its longstanding rule that in assessing the reasonableness of an officer’s use of force under the Fourth Amendment, courts must consider the totality of the circumstances and clarified that the totality of the circumstances inquiry “has no time limit.” However, the Court did not answer the harder and arguably more important question that this case presented: whether pre-seizure “officer created jeopardy” conduct may be considered by the trier of fact. This paper argues that given the Supreme Court’s holding that the totality of the circumstances inquiry has no time limit, lower courts going forward should find that pre-seizure “officer created jeopardy” conduct is a factor in the totality of the circumstances that may be considered in assessing the reasonableness of the officer’s use of force.

GW Paper Series

2025-42

Download

Included in

Law Commons

Share

COinS