No. 23-1239
`In the Supreme Court of the United States
`
`
`
`JANICE HUGHES BARNES, INDIVIDUALLY AND AS
`REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,
`DECEASED, PETITIONER
`v.
`
`ROBERTO FELIX, JR., ET AL.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`SUPPORTING VACATUR AND REMAND
`
`
`
` ELIZABETH B. PRELOGAR
`Solicitor General
`Counsel of Record
`KRISTEN M. CLARKE
`Assistant Attorney General
`NICOLE M. ARGENTIERI
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorneys General
`ERIC J. FEIGIN
`Deputy Solicitor General
`ZOE A. JACOBY
`Assistant to the Solicitor
`General
`THOMAS BOOTH
`TERESA KWONG
`CAROLINE W. TAN
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`JANICE HUGHES BARNES, INDIVIDUALLY AND AS
`REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,
`DECEASED, PETITIONER
`v.
`
`ROBERTO FELIX, JR., ET AL.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`SUPPORTING VACATUR AND REMAND
`
`
`
` ELIZABETH B. PRELOGAR
`Solicitor General
`Counsel of Record
`KRISTEN M. CLARKE
`Assistant Attorney General
`NICOLE M. ARGENTIERI
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorneys General
`ERIC J. FEIGIN
`Deputy Solicitor General
`ZOE A. JACOBY
`Assistant to the Solicitor
`General
`THOMAS BOOTH
`TERESA KWONG
`CAROLINE W. TAN
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`QUESTION PRESENTED
`
` Whether and to what extent circumstances leading
`up to an officer’s use of force are relevant to determin-
`ing whether that use of force was reasonable under the
`Fourth Amendment.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(I)
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`Interest of the United States....................................................... 1
`Statement ...................................................................................... 2
`Summary of argument ................................................................. 5
`Argument ....................................................................................... 9
`A. Assessment of the reasonableness of an officer’s use
`of force under the Fourth Amendment should not
`categorically disregard prior officer conduct ................. 9
`1. The excessive-force inquiry examines
`reasonableness from the perspective of a
`reasonable officer, which may include his
`knowledge of past events ........................................... 9
`2. The past events relevant to the reasonableness
`of an officer’s use of force can include the
`officer’s own past actions ......................................... 11
`3. An officer’s knowledge of his past conduct can
`contextualize whether a threat existed at the
`moment force was used ............................................ 13
`B. Respondent’s sole and exclusive focus on the
`moment of the threat is unsound .............................. 16
`1. This Court’s precedents do not support a
`blinkered focus on the moment of the threat
`alone ........................................................................... 17
`2. Focusing only on the moment of the threat
`makes little sense and would create
`administrability problems ........................................ 21
`C. The court of appeals misapplied the Fourth
`Amendment ...................................................................... 22
`Conclusion ................................................................................... 24
`
`
`
`
`
`
`
`(III)
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page
`Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999) ................... 21
`Amador v. Vasquez, 961 F.3d 721 (5th Cir. 2020),
`cert. denied, 141 S. Ct. 1513 (2021) ..................................... 4
`City & County of San Francisco v. Sheehan,
`575 U.S. 600 (2015)............................................ 13, 15, 16, 20
`City of Tahlequah v. Bond, 595 U.S. 9 (2021) ................. 8, 18
`County of Los Angeles v. Mendez,
`581 U.S. 420 (2017).............................................. 8, 10, 18, 19
`Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 23
`Estate of Biegert ex rel. Biegert v. Molitor,
`968 F.3d 693 (7th Cir. 2020) ........................................... 7, 15
`Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993) ...... 15
`Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir.),
`cert. denied, 506 U.S. 973 (1992) ..................................... 4, 5
`Graham v. Connor,
`490 U.S. 386 (1989)................................. 6, 7, 9-13, 16, 17, 23
`Harris v. Serpas, 745 F.3d 767 (5th Cir.),
`cert. denied, 574 U.S. 823 (2014) ................................... 5, 23
`Heien v. North Carolina, 574 U.S. 54 (2014) ..................... 15
`Kentucky v. King, 563 U.S. 452 (2011) ................................ 13
`Kingsley v. Hendrickson, 576 U.S. 389 (2015) ....... 10, 12, 17
`Lombardo v. City of St. Louis, 594 U.S. 464 (2021) ........... 10
`Ornelas v. United States, 517 U.S. 690 (1996) ................... 18
`Palacios v. Fortuna, 61 F.4th 1248 (10th Cir. 2023) .......... 14
`Plumhoff v. Rickard, 572 U.S. 765 (2014) ...... 6, 11, 13, 15, 21
`Puskas v. Delaware County,
`56 F.4th 1088 (6th Cir. 2023) ............................................. 14
`Rockwell v. Brown, 664 F.3d 985 (5th Cir. 2011),
`cert. denied, 566 U.S. 1009 (2012) ....................................... 4
`Scott v. Harris, 550 U.S. 372 (2007) ......................... 12, 15, 17
`
`
`
`
`
`V
`
`Cases—Continued:
`
`Page
`
`Tennessee v. Garner, 471 U.S. 1 (1985) .......... 9, 10, 12, 17, 18
`United States v. Knights, 534 U.S. 112 (2001) .................... 16
`Wilson v. Arkansas, 514 U.S. 927 (1995) ........................ 7, 12
`
`Constitution and statutes:
`
`
`
`U.S. Const.:
`Amend. IV ................................. 1, 3, 5, 6, 10, 12, 13, 15, 19
`Amend. XIV (Due Process Clause) ............................... 10
`18 U.S.C. 242 ............................................................................ 1
`34 U.S.C. 12601 ........................................................................ 1
`42 U.S.C. 1983 .......................................................................... 3
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 23-1239
`JANICE HUGHES BARNES, INDIVIDUALLY AND AS
`REPRESENTATIVE OF THE ESTATE OF ASHTIAN BARNES,
`DECEASED, PETITIONER
`
`v.
`
`ROBERTO FELIX, JR., ET AL.
`
`
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`SUPPORTING VACATUR AND REMAND
`
`
`
`INTEREST OF THE UNITED STATES
`This case concerns the set of circumstances that may
`be considered in evaluating an excessive-force claim
`under the Fourth Amendment. The Fourth Amend-
`ment standard applies to both federal and state law-
`enforcement officers. The United States often defends
`federal law-enforcement officers who face personal lia-
`bility for alleged Fourth Amendment violations. The
`United States also prosecutes excessive-force cases un-
`der 18 U.S.C. 242 and brings civil actions to address sys-
`temic Fourth Amendment violations by law enforce-
`ment under 34 U.S.C. 12601. The United States there-
`fore has a substantial interest in the Court’s resolution
`of this case.
`
`(1)
`
`
`
`2
`
`STATEMENT
`traffic-
`1. Respondent Roberto Felix, Jr., a
`enforcement officer for Harris County, Texas, was pa-
`trolling the Sam Houston Tollway on the afternoon of
`April 28, 2016, when he received a radio broadcast about
`a vehicle on the road with outstanding toll violations.
`Pet. App. 2a, 18a. Respondent subsequently spotted a
`Toyota Corolla whose license plate matched the plate
`number provided over the radio, and he initiated a traf-
`fic stop by activating his emergency lights. Id. at 18a.
`The Corolla was being driven by Ashtian Barnes, who
`pulled over to the left shoulder of the Tollway. Ibid.
`Respondent parked behind him. Ibid.
`Respondent stepped out of his patrol vehicle, ap-
`proached the driver’s side of the Corolla, and asked
`Barnes for his driver’s license and proof of insurance.
`Pet. App. 18a, 26a. Barnes responded that he did not
`have his license and that the car was a rental in his girl-
`friend’s name. Id. at 18a. As Barnes spoke, and through-
`out his discussion with respondent, Barnes was rum-
`maging through papers inside the vehicle, causing re-
`spondent to warn Barnes several times to stop “digging
`around.” Ibid.
`Respondent told Barnes that he smelled marijuana
`and asked Barnes if there was anything in the vehicle
`that respondent should know about. Pet. App. 2a-3a,
`18a. Barnes responded that he might have the re-
`quested documents in the trunk. Id. at 3a, 26a. Re-
`spondent asked Barnes to open the trunk, and Barnes
`popped it open from the driver’s seat. Id. at 3a. The
`car’s taillights then stopped blinking, indicating that
`Barnes had turned off the vehicle. Id. at 3a, 18a-19a.
`About three minutes into the stop, respondent, with
`his right hand on his holster, asked Barnes to step out
`
`
`
`
`
`3
`
`of the car. Pet. App. 3a, 19a, 26a. Barnes opened the
`door, but he did not step out. Id. at 3a. Instead, Barnes
`turned the car back on. Id. at 19a, 27a.
`Respondent drew his weapon as the car started to
`move forward. Pet. App. 27a. Respondent twice shouted
`“don’t fucking move!” as the car began to accelerate.
`Ibid. Either shortly before or shortly after the car
`started accelerating, respondent jumped onto the vehi-
`cle’s door sill (the flat base of the car door). See id. at
`3a-4a (stating that respondent stepped onto the sill be-
`fore the car started accelerating); id. at 19a (stating
`that it was “unclear” from the dash camera footage
`whether respondent stepped onto the sill before or after
`acceleration).
`With no visibility as to where he was aiming, re-
`spondent fired one shot inside the car. Pet. App. 4a, 27a.
`The car continued to move forward, and respondent
`fired a second shot. Id. at 4a. Barnes was struck, and
`two seconds later, the car came to a full stop. Id. at 4a,
`27a. Respondent jumped off the car, yelled “shots
`fired!” into his radio, and held Barnes at gunpoint until
`backup arrived. Id. at 4a. Barnes was pronounced dead
`at the scene. Ibid.
`2. Petitioner, who is Barnes’s mother, sued respond-
`ent and Harris County in state court under 42 U.S.C.
`1983, alleging that respondent violated Barnes’s Fourth
`Amendment rights by using excessive force against
`him. Pet. App. 4a. Respondent and Harris County re-
`moved the action to the United States District Court for
`the Southern District of Texas. Id. at 20a.
`The district court granted summary judgment to re-
`spondent and Harris County, reasoning that respond-
`ent did not violate Barnes’s constitutional rights. Pet.
`App. 17a-32a. The court stated that under circuit
`
`
`
`
`
`4
`
`precedent, if an “ ‘officer has reason to believe that the
`suspect poses a threat of serious harm,’ ” then “the con-
`stitutional inquiry ends there.” Id. at 24a (citation omit-
`ted). Accordingly, the district court focused solely on
`“whether the officer or another person was in danger at
`the moment of the threat that resulted in the officer’s
`use of deadly force.” Id. at 25a (quoting Rockwell v.
`Brown, 664 F.3d 985, 991 (5th Cir. 2011), cert. denied,
`566 U.S. 1009 (2012)).
`The district court identified the “moment of the
`threat” in this case as the “two seconds before [respond-
`ent] fired his first shot,” when respondent was standing
`on the Corolla’s door sill and the car was accelerating.
`Pet. App. 29a. The court concluded that at that mo-
`ment, an officer in respondent’s position would reason-
`ably believe that Barnes’s continued operation of the
`car put respondent in danger. Id. at 31a.
`The district court rejected petitioner’s argument
`that “any danger perceived by [respondent] was created
`solely by himself ” by stepping onto the car’s door sill.
`Pet. App. 29a (citation and internal quotation marks
`omitted). The court stated that “the Fifth Circuit does
`not consider ‘what had transpired up until the shooting
`itself ’ in assessing the reasonableness of an officer’s use
`of deadly force.” Ibid. (quoting Fraire v. City of Arling-
`ton, 957 F.2d 1268, 1276 (5th Cir.), cert. denied, 506 U.S.
`973 (1992)).
`3. The court of appeals affirmed. Pet. App. 1a-9a.
`The court stated that under circuit precedent, “the
`excessive-force inquiry is confined to whether the offic-
`ers or other persons were in danger at the moment of
`the threat that resulted in the officers’ use of deadly
`force.” Id. at 7a-8a (quoting Amador v. Vasquez, 961 F.3d
`721, 728 (5th Cir. 2020), cert. denied, 141 S. Ct. 1513
`
`
`
`
`
`5
`
`(2021)). The court therefore deemed “[a]ny of the offic-
`ers’ actions leading up to the shooting” to be “not rele-
`vant for the purposes of an excessive force inquiry
`in this Circuit.” Id. at 8a (quoting Harris v. Serpas,
`745 F.3d 767, 772 (5th Cir.), cert. denied, 574 U.S. 823
`(2014)). And here, the court concluded that respond-
`ent’s use of force was reasonable under the Fourth
`Amendment because during the “moment of the
`threat”—the two seconds when respondent “was still
`hanging on to the moving vehicle”—respondent reason-
`ably believed that he was in serious danger. Ibid.
`In a concurring opinion, Judge Higginbotham (the
`author of the panel opinion) expressed his concern with
`the Fifth Circuit’s approach to deadly-force cases. Pet.
`App. 10a-16a. In Judge Higginbotham’s view, categor-
`ically disregarding “what has transpired up until the
`moment of the shooting itself ” is inconsistent with this
`Court’s directive that reasonableness should be ana-
`lyzed in light of the “totality of [the] circumstances.” Id.
`at 12a-13a (quoting Fraire, 957 F.2d at 1276, and Ten-
`nessee v. Garner, 471 U.S. 1, 9 (1985)). Rather than fo-
`cus only on the “moment of the threat,” Judge Hig-
`ginbotham would have also considered circumstances
`leading to the use of force, including respondent’s deci-
`sion to “jump onto the sill of the vehicle with his gun
`already drawn.” Id. at 15a. And under that approach,
`Judge Higginbotham would have found that respond-
`ent’s use of force was unreasonable under the Fourth
`Amendment. Id. at 16a.
`
`SUMMARY OF ARGUMENT
`The court of appeals erred in declaring that an of-
`ficer’s conduct prior to using force is categorially irrel-
`evant to whether the use of force was reasonable under
`the Fourth Amendment. The reasonableness inquiry
`
`
`
`
`
`6
`
`examines the use of force through the lens of the totality
`of the circumstances known to a reasonable officer,
`which naturally and logically includes his own past con-
`duct. Although the circumstances during the “moment
`of the threat,” Pet. App. 8a, will often have prime im-
`portance, both this Court’s precedents and common
`sense illustrate that those circumstances can be contex-
`tualized by the ones that preceded them. Because the
`court of appeals indicated otherwise, this Court should
`vacate the decision below and remand for application of
`the proper framework.
`A. The question in a Fourth Amendment excessive-
`force case is whether the officer’s use of force was ob-
`jectively reasonable “in light of the facts and circum-
`stances confronting” him. Graham v. Connor, 490 U.S.
`386, 395 (1989). That inquiry requires analyzing the
`“ ‘totality of the circumstances’ ” “from the perspective
`of a reasonable officer on the scene.” Id. at 396 (citation
`omitted). A reasonable officer on the scene is aware of
`not only the circumstances in the precise moment when
`force is used, but also historical facts leading up to that
`moment. The officer’s decision to resort to force may
`be informed by, for example, the “severity of the crime”
`that precipitated his encounter with the suspect, ibid.,
`or behavior by the suspect earlier in the encounter indi-
`cating that the suspect would likely “resum[e]” danger-
`ous behavior unless the officer used force, Plumhoff v.
`Rickard, 572 U.S. 765, 777 (2014).
`The relevant circumstances known to an officer at
`the moment when force was used also naturally include
`the officer’s own conduct leading up to that moment.
`For example, an officer’s prior efforts to warn the sus-
`pect, deescalate the situation, or temper the degree of
`force used may all be relevant to the reasonableness of
`
`
`
`
`
`7
`
`his subsequent use of force. Considering an officer’s
`conduct leading up to the moment of force accords
`with this Court’s consideration of prior officer conduct
`when applying the “same standard of reasonableness at
`the moment” to other types of searches and seizures.
`Graham, 490 U.S. at 396.
`To be sure, the circumstances at the moment that
`force is used will generally have primary significance in
`the analysis. Officers often must make split-second
`judgments in defending themselves and the public from
`danger, and an officer’s reasonable perception of a
`threat in the moment generally should be respected.
`But the circumstances in the moment of force cannot be
`completely divorced from the context in which they
`arose. An officer’s prior engagement with the suspect
`may illuminate why escalation to force was necessary;
`conversely, even a moment of apparent danger may not
`reasonably call for deadly force if the officer previously
`“acted so far outside the bounds of reasonable behavior
`that the deadly force was almost entirely a result of [his]
`actions.” Estate of Biegert ex rel. Biegert v. Molitor,
`968 F.3d 693, 698 (7th Cir. 2020) (Barrett, J.). Although
`the latter type of situation will be rare, the reasonable-
`ness analysis must allow for the entire totality of the
`circumstances known to a reasonable officer, not just a
`single, context-independent slice.
`B. Respondent has contended that when an officer
`experiences a “moment of threat” during which he rea-
`sonably believes that he is in danger, the reasonable-
`ness inquiry ends and no other prior conduct may be
`considered. Br. in Opp. 24; see Pet. App. 7a-8a. That
`rigid rubric is not supported by this Court’s precedents,
`which demand a more context-sensitive and nuanced
`approach. Respondent relies on County of Los Angeles
`
`
`
`
`
`8
`
`v. Mendez, 581 U.S. 420 (2017), and City of Tahlequah
`v. Bond, 595 U.S. 9 (2021) (per curiam), but both of those
`decisions expressly declined to decide the question pre-
`sented in this case. Respondent also invokes this
`Court’s decisions addressing mistakes in policing, but
`those decisions simply show that the use of force can be
`reasonable notwithstanding poor law-enforcement tac-
`tics; they do not completely preclude consideration of
`prior events and officer conduct.
`Indeed, a rule requiring exclusive focus on a “mo-
`ment of threat” would make little sense in practice and
`would be difficult to administer. An officer’s perception
`of what a suspect might do next is necessarily informed
`by the suspect’s prior behavior, as well as the officer’s
`own actions toward the suspect. Especially when the
`officer and the suspect have been interacting with one
`another such that their prior actions are inextricably in-
`tertwined, their prior conduct can be useful in under-
`standing what followed. And in practice, excluding all
`circumstances preceding the “moment of threat” will
`create line-drawing problems, as it can be difficult in a
`rapidly evolving and fluid policing encounter to pinpoint
`precisely when the moment of threat began.
`C. Instead of examining all the circumstances known
`to a reasonable officer in respondent’s position at the
`moment of force, the lower courts in this case focused
`exclusively on whether respondent reasonably per-
`ceived danger during the two seconds when he was
`clinging to an accelerating vehicle. Pet. App. 8a. Be-
`cause the lower courts erred in doing so, this Court
`should vacate the decision below and remand to allow
`them to consider the reasonableness of respondent’s
`use of force under the proper standard in the first in-
`stance.
`
`
`
`
`
`9
`
`ARGUMENT
` A claim that law enforcement used excessive force
`during an investigation or arrest is “analyzed under the
`Fourth Amendment and its ‘reasonableness’ standard.”
`Graham v. Connor, 490 U.S. 386, 395 (1989). The anal-
`ysis considers the “totality of the circumstances” known
`to the officer, Tennessee v. Garner, 471 U.S. 1, 9 (1985),
`and should not categorically exclude circumstances
`leading up to the moment force was used, such as an of-
`ficer’s prior conduct. While the situation at the moment
`force is used will have paramount importance in many
`cases, categorically ignoring actions leading up to that
`moment would conflict with this Court’s precedents,
`common sense, and sound principles of judicial admin-
`istrability. The decision below, which applied such an
`unsound approach, should accordingly be vacated and
`the case remanded for further proceedings.
`
`A. Assessment Of The Reasonableness Of An Officer’s Use
`Of Force Under The Fourth Amendment Should Not
`Categorically Disregard Prior Officer Conduct
`
`1. The excessive-force inquiry examines reasonableness
`from the perspective of a reasonable officer, which
`may include his knowledge of past events
` The “inquiry in an excessive force case is an objec-
`tive one: the question is whether the officers’ actions
`are ‘objectively reasonable’ in light of the facts and cir-
`cumstances confronting them, without regard to their
`underlying intent or motivation.” Graham, 490 U.S. at
`397. Undertaking that inquiry requires analyzing the
`“totality of the circumstances,” Garner, 471 U.S. at 9,
`“from the perspective of a reasonable officer on the
`scene,” Graham, 490 U.S. at 396, to determine the
`
`
`
`
`
`10
`
`force’s “reasonableness at the moment” it was used,
`ibid.
`The reasonableness inquiry accordingly examines
`“the information the officers had when the conduct oc-
`curred.” County of Los Angeles v. Mendez, 581 U.S.
`420, 428 (2017) (citation omitted); see Garner, 471 U.S.
`at 9. That information is not limited to a snapshot of
`what an officer saw in that moment, but instead “in-
`clud[es] what the officer knew at the time.” Kingsley v.
`Hendrickson, 576 U.S. 389, 397 (2015) (citing Graham,
`490 U.S. at 396). And such knowledge will naturally in-
`clude events leading up to the use of force, as well as
`other relevant facts.
`Factors to which this Court has looked include “the
`relationship between the need for the use of force and
`the amount of force used; the extent of the plaintiff ’s
`injury; any effort made by the officer to temper or to
`limit the amount of force; the severity of the security
`problem at issue; the threat reasonably perceived by
`the officer; and whether the plaintiff was actively resist-
`ing.” Kingsley, 576 U.S. at 397 (citing Graham, 490 U.S.
`at 396); see Lombardo v. City of St. Louis, 594 U.S. 464,
`466 n.2 (2021) (explaining that Kingsley’s standard for
`excessive force under the Due Process Clause mirrors
`the Fourth Amendment objective-reasonableness
`standard). Those factors—which are neither rigid nor
`exhaustive, see Kingsley, 576 U.S. at 397; Graham,
`490 U.S. at 396—necessarily encompass historical facts
`of which the officer is aware.
`For example, the Court has made clear that an of-
`ficer’s knowledge of the “severity of the crime at
`issue”—which could plainly be a past event that may not
`be evident at the moment of the threat—can carry sig-
`nificant weight in the reasonableness analysis. Graham,
`
`
`
`
`
`11
`
`490 U.S. at 396. An officer may well perceive a greater
`threat from a wanted murderer on the lam than from a
`jaywalker. And there is no logical reason to differenti-
`ate between that type of historical fact and other types
`that would inform a reasonable officer’s evaluation of
`the situation that he faces.
`The relevance of historical facts is well-illustrated by
`this Court’s decision in Plumhoff v. Rickard, 572 U.S.
`765 (2014), which concluded that officers acted reason-
`ably in shooting a driver who had led them on a high-
`speed car chase, id. at 768. That conclusion was based
`in large part on the driver’s “outrageously reckless” be-
`havior during the preceding “five minutes” and his at-
`tempts to keep driving even after a prior collision. Id.
`at 776. The Court did not cabin its analysis to the pre-
`cise moment when the officers used force. Instead, past
`events within the officers’ knowledge informed the rea-
`sonableness analysis: “[u]nder the circumstances at the
`moment when the shots were fired, all that a reasonable
`police officer could have concluded was that Rickard
`was intent on resuming his flight and that, if he was al-
`lowed to do so, he would once again pose a deadly threat
`for others on the road.” Id. at 777 (emphases added).
`
`2. The past events relevant to the reasonableness of an
`officer’s use of force can include the officer’s own past
`actions
`The circumstances known to an officer at the moment
`he uses force naturally include his own conduct—most
`obviously, his interactions with the suspect—leading up
`to that moment. Indeed, the Court has expressly iden-
`tified at least one such conduct-based factor—namely,
`the “effort made by the officer to temper or to limit the
`amount of force”—as potentially relevant to the inquiry.
`Kingsley, 576 U.S. at 397. An effort to deescalate the
`
`
`
`
`
`12
`
`threat typically precedes the use of force, and can in-
`form the reasonableness of its application.
`As the Court has recognized, the use of force may be
`more reasonable when (if feasible) “some warning has
`been given” by law enforcement beforehand. Garner,
`471 U.S. at 11-12. Thus, the reasonableness inquiry in
`Scott v. Harris, 550 U.S. 372 (2007), looked to the “[s]ix
`minutes” that preceded the ultimate seizure, during
`which time “[m]ultiple police cars, with blue lights flash-
`ing and sirens blaring, had been chasing [the driver] for
`nearly 10 miles, but he ignored their warning to stop.”
`Id. at 375, 384. And in light of that law-enforcement
`conduct, the driver’s response, and other factors, the
`Court held that an officer acted reasonably when he
`ended a high-speed car chase by ramming the speeding
`driver off the road. Id. at 385.
`The consideration of such past officer conduct co-
`heres with the framework in other Fourth Amendment
`contexts. The reasonableness analysis for Fourth
`Amendment excessive-force claims is not an island unto
`itself, but instead applies the “same standard of reason-
`ableness at the moment” as other Fourth Amendment
`search and seizure inquiries. Graham, 490 U.S. at 396;
`see, e.g., Scott, 550 U.S. at 382. And in those contexts
`as well, the Court has often considered police conduct
`leading up to the moment of the search or seizure.
`The Court has explained, for example, that “the rea-
`sonableness of a search of a dwelling may depend in
`part on whether law enforcement officers announced
`their presence and authority prior to entering.” Wilson
`v. Arkansas, 514 U.S. 927, 931 (1995). And the Court
`has stated that whether a particular “exigency” justifies
`a warrantless search depends on whether “the conduct
`of the police preceding the exigency is reasonable” under
`
`
`
`
`
`13
`
`the Fourth Amendment. Kentucky v. King, 563 U.S. 452,
`462 (2011). Disregarding prior police conduct in the
`excessive-force context alone would thus create need-
`less and unjustified incongruities in this Court’s Fourth
`Amendment jurisprudence.
`
`3. An officer’s knowledge of his past conduct can
`contextualize whether a threat existed at the moment
`force was used
` Although an officer’s past conduct can often be rele-
`vant to the assessment of whether his use of force was
`reasonable, it does not resolve the ultimate inquiry of
`whether “a particular use of force” was reasonable “from
`the perspective of a reasonable officer on the scene.”
`Graham, 490 U.S. at 396. That inquiry must account for
`officers’ need to make “split-second judgments” in “cir-
`cumstances that are tense, uncertain, and rapidly
`evolving.” Id. at 396-397. The in-the-moment facts thus
`may have preeminent—but not isolated—importance in
`assessing the reasonableness of a use of force, with the
`officer’s past conduct and other factors providing nec-
`essary context in appropriate cases.
` Law-enforcement officers must be able to use force
`to protect the public from threats. See Plumhoff,
`572 U.S. at 777 (approving use of deadly force to neu-
`tralize “a grave public safety risk”). Regardless of what
`may have transpired beforehand, officers are extraordi-
`narily unlikely to act unreasonably in defending a group
`of innocent bystanders who are in the path of a fleeing
`suspect’s speeding car. Similarly, officers are entitled
`to defend themselves from danger. See City & County
`of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015)
`(“Nothing in the Fourth Amendment bar[s] [officers]
`from protecting themselves.”). The driver of a car bar-
`reling right toward an officer will in most cases present
`
`
`
`
`
`14
`
`a threat to the officer’s safety to which the officer may
`reasonably respond by using force, whatever the of-
`ficer’s prior conduct may have been.
` But the in-the-moment facts will not always be dis-
`positive, and they cannot be hermetically sealed off
`from the context in which they arose. As previously dis-
`cussed, an officer’s attempts to deescalate the situation
`or provide warnings before he resorts to the use of force
`may bear on the force’s reasonableness. See Puskas v.
`Delaware County, 56 F.4th 1088, 1094-1095 (6th Cir.
`2023) (finding use of police dog reasonable after consid-
`ering prior efforts to deescalate); Palacios v. Fortuna,
`61 F.4th 1248, 1258-1262 (10th Cir. 2023) (finding use of
`force reasonable in light of officers’ prior warnings).
`Prior conduct can also demonstrate why seemingly in-
`nocuous conduct by a suspect could reasonably be inter-
`preted by an officer as threatening. For example, an
`officer who sees a suspect reach into his pocket may
`have more reason to perceive a threat in that moment if
`he earlier saw the suspect place a gun in that same
`pocket. Countless other factors, like knowledge that
`the suspect has long been a fugitive from the law, would
`likewise bear on the analysis.
` Such factors are not a one-way ratchet. There may
`be some cases in which the prior context—including the
`officer’s own previous conduct—could undercut the ap-
`parent in-the-moment reasonableness of an officer’s use
`of force. Courts have reasoned that even if an officer
`faces a moment of apparent danger, the use of force may
`still be unreasonable if leading up to that moment the
`officer “acted so far outside the bounds of reasonable
`behavior that the deadly force was almost entirely a re-
`sult of [his] actions.” Estate of Biegert ex rel. Biegert v.
`Molitor, 968 F.3d 693, 698 (7th Cir. 2020) (Barrett, J.).
`
`
`
`
`
`15
`
`For example, an officer who needlessly leaps directly in
`front of an accelerating car may reasonably fear for
`his safety as the car barrels toward him, but it may
`be unreasonable for him to use deadly force to stop the
`oncoming driver. See Estate of Starks v. Enyart,
`5 F.3d 230, 234 (7th Cir. 1993) (stating that use of deadly
`force is unreasonable if the officer unjustifiably “stepped
`in front of [the suspect’s] rapidly moving cab, leaving
`[him] no time to brake”).
` To be sure, factors tending to suggest that an officer’s
`actions are unreasonable may have limited weight. An
`officer’s use of force is not automatically unreasonable
`just because the officer played a role in creating or es-
`calating the dangerous situation, or made a policing
`mistake. This Court has recognized, for example, that
`it is reasonable for an officer to use deadly force to end
`a dangerous car chase, even if the officer contributed to
`the danger by continuing the chase rather than letting
`the suspect go. See Plumhoff, 572 U.S. at 776 n.3; Scott,
`550 U.S. at 385-386. And even if an officer’s negligent
`actions are a but-for cause of the dangerous situation, a
`suspect’s intervening misconduct may justify the use of
`force. See Biegert, 968 F.3d at 698.
` Furthermore, as this Court observed in City &
`County of San Francisco v. Sheehan, a plaintiff “cannot
`establish a Fourth Amendment violation based merely
`on bad tactics that result in a deadly confrontation that
`could have been avoided.” 575 U.S. at 615 (citation and
`internal quotation marks omitted). Similarly, “seizures
`based on mistakes of fact” or law “can be reasonable.”
`Heien v. North Carolina, 574 U.S. 54, 61 (2014) (mis-
`takes of fact); see id. at 57 (mistakes of law). “To be
`reasonable is not to be perfect, and so the Fourth
`Amendment allows for some mistakes on the part of
`
`
`
`
`
`16
`
`government officials, giving them fair leeway for en-
`forcing the law in the community’s protection.” Id. at
`60-61 (citation and internal quotation marks omitted).
`An officer’s actions in the field do not need to conform
`to the training video to be reasonable. And even when
`a Fourth Amendment violation occurs, an officer’s rea-
`sonable mistakes may be further protected from ci
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