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>> the u.s. supreme court heard oral argument in barns v felix, case against police officer fex, the supreme court's decision may resolve whether moment ofhe threat is enough to evaluate clas of excessive force by police and if a trial against officer felix may happen. this is about an hour and 15 minutes. >> case 1229 barns versus felix. >> may it please court, we are here today because ashton barns was shot andau killed on e of a texas highway after ing pulled over for unpaid tolls. the question before this court ho to determine whether on's fourth amendments rights were viote the fourth amendment prohibits unreasle seizures, justice scalia was no fan of a totality

ofhe circumstances test but in scott, justice scalia made clear the courts must flash through in this case, tistrict court and the fif circuit didn't do th instead, they applied theoment ofot the threat doctrine accordg to the fifth circuit decision below, quote, we mayy ask whether officer felix wasn danger at the moment of the threat and, quote, a of the officer's actionsan leading up o the shooting are not rel this time leg amnesia i incompatible with precedent and conflicts whommon law and defies common sense until now, rd embraced the moment of the threat doctrine but before cot, respondents have abruptl shifted position. they now argue courts should look to what occurs before the moment of the threat and apply the law of self-defense and perseding cause.

abso none of this appears in the decision below. all of it cfirms why the of the threat doctrine is so wrong. finally, as a judge underscored in his concurrence, the facts show that officer felix acted unreasonably. but this is a court review not first few. the court should rule for petitioner and remand for the lower courts to apply the correct constitutional sd. i welcome this court's questions. >> under youoach what with the correct standard look like and how would ite plied here? >> justice thomas we think the st is the totality of the circumstances standard, the coticulated in graham and garner, scott and plum half. in this case, it would require looking at more than just the two seconds in which officer felix was on the moving vehicle, it would require asking was there a reason? >> how much mo tn the last two seconds? seconds, you would lookt theree

seizure in its totality. i think this court sul't be drawing a bright line rules on exactly how much of the seire should and shouldn't come in, that's what justice scalia underscored in scott. there are no rigid rules. courts can apply ordinary prinpl of relevancy and proximate cause to determinehe reasonableness of a seizure. >> was it reasonable for the officer to jump on the side of the >> we don't think it was in this particular case but that is precisely the issue that the lower courts couldn't evalte because they applied legal amnesia and only lookthe fact of the officer was on the moving vehicle. the juoked atheotality of the circumstances and said i think it was unreaso we want the opportunity for court to be able to look at that and for us to litigate that

claim. >> what is an officer supposed to do at a traffic stop when someone pull away, let them go? >> i think there are number of other options available to officex that day. the me giveour. first, the highway was a camera lled highway so you can monitor all of the car spy camera and that's how orens was pulled over in the first place. the cameras automatically iden his car is one with unpaid tolls. second, he could'veadioed to some of the else on the road to follow barnes. third, he could've gotten back into hisqu car and followed him. fourth, th also had the car's linsplate. we are not suggesting someone shld get away scott free but it is unreasonable to use deadly force because what happened was officer felix put himself in a position whered no alternative but to shoot the driver and that's unreasonable. we have to look at the whole piur not just the two

secos is on the car. >> did the officer violate the fourth amendment at any point prior to the time when he used ad force? if he had not used deadly force but had jumped on the side of the car and everything else he did prior to moment, would therbe violation of the fourth amendment? >> justice alito, we had drawn a predicate about the drawing the firearm, my president thought th w should bring a predicate claim but the e of the day i don't think it mawhether there is a predicate claim bause in the search context you have an obligation to knock before you search. there's no freesndg requirement under the fourth a minute if you are an officer standing outside her door to knock. but if you're going to engage in search, we evalue reasonableness of a search by looking a couple seconds before did nock. >> the reason for the question is tobe whether you are the term unreasonable in a

sense ats different from the sense in which the fourth amendment prohibits unreasonable searches and seizures. unreonle has particular meaning when the court has to fourth amended violation.a in lay speech, unreasonable could go to whether the action was prudent, whheit was a violation of best police practiceorhe practices of a particular police department. those are not necessarily the same thing. seems they are probably different. so you are alighting these fferent reasons, maybe that a sound or unsnd >> what we are asking for is the standas court has applied, which is you have to lo athe balance. on theide, the state interest inng someone in a particular manner. on the other side, harm to the suspect, the ultimate harm,

the loss of his life. the problem in this case is the fifth circuit couldn't engage in thator balancing b it couldn't asked was there oppressing rear an officer to jump onto a cart and give himself no other oornity but to shoot the driver? >> wld you be satisfied that is wrong for a court to look just at the moment of threat, that t crt has to dgthe reasonableness of the alleged unreasonle seizure based on taking into account to whatev extent they are relevant the events that occurred before that , would you be satisfied if we just did that and not get into these other more difficult question >> 100%. it would be helpful if the court makes clear that means you can look at the jump in dion to the shoot. we would be happy.

>> you don't want it limid just to that, though. i thought the totality of the circumstances as you are describing has at leasthe factors -- theate of the crime for which the stop occurred, the circumstances, etc. the three minutes, is that the moment the stop occurred, or you want to do it just from when he jumped on the car? >> we don't want to lookt it just from when he jumped on the car. i think u ed to consider what he stopped for. my friends on the other side agree with that, thesaall of that comes in because it is part of it. >> we will get to them. they want to make it a totality the circumstances case. tha's not what the fifth circuit said. having said that, there is a split of eight to four whether

the court need look at the totality or just a moment of threat, correct? if we do wstice alito has defined as a narrow approach, that's not really narrow, that's deciding a circuit split, correct? >> ma clarify my answer? i think you could resolve t case by saying the moment of the too narrow and didn'ply toas the totality of circumstances and this crts not going to try to delineate every case. you've given up in your reply brief i understood, you are not asking us to adjust estion of what an office created danger rule is. >> we are not ainfor an officer created danger rule at all. >> y are happy with the narrow -- i will call it narrow in the sense that if we said moment of the threat is wrong and wd't articulate a precise standard other than saying our regular

totality of the circumstances appliesat's really what you are asking for. >> in this case were trying to lititehe fact he jumped into a car and we have sharp different views. my friend on the other side and i have sharply different views about whether it was reasonable to jump on thearnd that's the suwe were not able to litigate. ihink this court doesn't need to go and say every case needs to meet the imbalance. if you want to put some flesh on the bones of that tu could look to your decision for the seventh circuit where you said an officer might act unreasonably where they are. . primarily responsible fo danger >> you would be happy with that language? >> we would. >> you don't have an opinion on whether a predicate for the movement violation that is unreteto the excessive force necessarily means that if the officer violated the nstitutional rights, let's imagine it is home injury or

something, then it'the table and after that, even if evve, the officer put hiin this situation? >> i have two answers to that, the first is in mendez, this court already held that the damages are, the foreseeable table.uences, they are on the i think it goes a long way wa disproving the other side because in those cases you are going to lookproceeding conduct. the second answer to your question is we of course agree with things like superseding cause. your decision again for the h circuit is a great example. superseding cause comes into play. those kind of testsse allt apply it looks at is the fact that officerel is standing on that vehicle and that's wh is concerning. you from engaging in ce urth amendment balancing. was the nature ofovernment interest and harm?

juic cavanaugh: do you agree with the language that says it applies when the officer created a situation where deadly force became essenal inevitable. >> that is our view of this case. >> are officers always prohibited at traffic stops when the car pulls away from jumping on a car? >> absolutely not. >> when can they and when can' they? >> let's say they see an abducted child in the backseat. let's say now that if they don't jump onto the something terrible might happen to thetor child. that is a totality of the circumstances inquiry thks at the nature of the government interest at play, the fundamentals. in this case we are lki at on pay tolls. justice kanah: true. but obvisl traffic stops, sometimes identify people who

e ing things that are much e. often, major criminals are apprehended for things like that. i can give you some historical examples that are obvious. so i don't know if an officer can assume that is the only thg ing on. if somebody is pulling away they can be dger to others on the road. mr. zelinski: that is precisely a maybe this was for first -- prefaced in your opening colloquy this is precise wt the fifth circuit cou engage in. justice kavanaugh: when th officer jumps on a car deadly force could be avoi the mr. zelinski: driver too. in this case officer feeling -- x shot up so fast he did not have time to stop. let me sketch why it is so dangerous to shoot a drive i'm not aware of any police

department that recommends its offirs shoot drivers. the gh likelihood, andhis particular case, he did not immediately die. he was able to break the car and t it into park. if he had been immediately killed the car could have careened anded into the highway. officer felix put o people on the highway in very serious danger that particular day. it's not just that he is jumping want to stopns from getting away. he is juinon in a matter that will put other people at risk. justice jackson: i want to go back to whether or not it was correct for the fifth circuit to apply the mom threat doctrine. what is yo uerstanding of that doctrine? was surprised that the respondent in this case at this ti now created a conception of it that did not fifth circuit said.what the what is your review of the moment of the threat doctrine? mr. zelinski: justice jackson, judge higginbotham was clear in his decision below, you can't

look at anye officer's actions prior to the moment of at. he joined in that decision by e elrod and judge smith. respondents themselves agreed below you cannot look at anything prior to the moment. judge jackson: do youive them out to be saying you can look at some things? that's a ffent concept. mr. zelinski: 100 per so far to say if an officerone trps -- jumps in front of moving car and shoot the driver that is unreasonable. is our view of this case. part of the problem is we were not able to have a lower court look at the totality of the circumstances and dwhat is this like a case where you jump in front of her and immedialy shoot the driver? justice kavanaugh:o u agree with the language that says the circumstances athe moment and force is used will generally have primary significance inhe analysis? mr. zelinski: there is little daylight between us and that the letter -- solicitor general. that language is descriptive. justice kavanaugh:o you agree

with that and when the solicitor general sayshe type of rare?tion described would be mr. zelinski: there are a series of reoccurring fact patter. there are two of them. i think that jumping in front of or onto a car does cuwith some frequency. we cit iour reply brief a study of 400 stops that showed a routine problem of officers jumping in front of cars. in the article it is described as hollywood style. the other recurring fact pattern is ptern where officers fail to identify themselves and the suspect, exercising his or her own amendment rights to self-defense pulls out a firearm. the fifth circuit aloneas two cases where they applied that doctrine, the cases ca royal. they say we can't look at the fact of the officer failed to identi hself. we can onl look at the fact that the officer faced a loaded gun.

that is sharply inconsistent with how common law approach to the exact same circumstance. justice kavanaugh: jumping in front of a car will sometimes be reasonable and sometimes not? mr. zelinski: yes. let me give an example of wher it might be reasonable. take the tragic terrorist attack in new orleans. t case, somebody used a car as a weapon of terror. if an officer jumped in front of the car an shot the driver, the officer would aero. it's because the stateest in that case in seizing that terrorist is incredibly high. that is theypof balancing the fih rcuit could just not engage in in this case. justice alito: here the stoppages for failure to pay tolls but we coulrahet up gradually the severity of the reason for t sp. at what poi wld the offense become sufficiently serious? at what point, if any with the

offense become sufficiently serious,n your judgment, to make it reasonable for officers? difficult question to answer. because, as this court id, is -- it is a fact specific question that will depend on eache and there are no magic rules,o and off switch. you cannot just start drawing the lines precisely because these cases are so numerous and there are so many differe permutations. it would be very dangerous to start drawing those lines. >> tha you, counsel, justice thomas, anything further? justice so the mayor: --sotoma yor: what do you do with cases where the fifth circuit does not appear to ape moment of threat doctrine and tak into account thtolity of circumstances. mr. zelinski: three responses.

t there is never a fifth rcuit case where you can look at the officer's prior conduct and say that is part of the calculus and goes against the officer. whenever they might do it it is only in the officer'fit. second -- the best case. justice sotomayor: some of m colleagues might agree with why should we not? mr. zelinski: the framers gave is a two way street.leness. justice sotomayor: you gave the ample of the common law. which is is a plainclothes officer does not announce he is officer and pulls out a gun. dethat circumstance, common law woul say somebody can defend themselves and flout a gun. mr. zelinski: jti sotomayor: justice sotomayor: yes. all right. zelinski: yes. justice sotomayor: ok. go ahead. mr. zelinski: the response to your first question and two answers. the first is there a wealth of fifth circuit cases that come out in the other din

crystal clear. i would dire t court to a case quoted by judge higginbotham in his decision be in harris the fifth circuigo out of its way to say this court haswed that test and that tests referring to the grandma test. they are self-consciously to where they are narrowinghe court goes on to say, any of the officer's actions leading up t the shooting armed relevant for the purposes of an excessi force inquiry in the circuit. the third pot that in this case you do not just have judge higginbotham descrthe split or moment of threat doctrine you also have judge elrod and j smith to sign on to the panel decision and they all agree iis how the doctrine operates, professor beard -- ofesr. >>hief justice and may it se the court, the fifth

circuit analyzed this case by examining only the so-called moment of threat and tegorically ignoring all prior events because bridget i bowlers is assessed under the tality ofcumstances. prior events often show the force was reasonable. police may have issued warnings or attempted de-escalation, all of which eight split second moment of threat doctrine misses. when officers a moment of danger that is tt import factor but in rare cases a moment of danger does not tell the whole story. if the danger was manufactured entirely by police conduct outse bounds of reasonable behavior, not by the suspects intervening apparent misconduct, in the moment.ble to use force this approach fails to provide a constitutional bactop in those ca and denies the context ome force is more reasonable than others. justice thomas: those circumstances also include the conduct of the victim that preceded the shooting.

ms. jacoby: absolutely. as we expressed in our brief the officer's conduct and suspects conduct are often intertwined. it's all the suspect reacted to justice thomas: and the other way, the officer reacting to the victims. ms. jacoby: it is truly eight totality of the circumstances approach and the fifth circuit's narrow cramped reasoning did not allow that to be considered. justice roberts: is there any area where youree with the petitioner? ms. jacoby:hat the petitioner articulated align well with our view. i am glad he endorsed statements in our brief. we agreed the court does not need to go furthersaying the fifth circuit approach here was wrong because it only focused on a narrow two snippet of the encounter rather than looking at the entirety. the court probably does not to go further to delineate a prbounds of where force willreasonable or not.

we don't have a lot of daylight. to be honest i think we don't have a lot of dayligween us and respond easier. respondents seem to agree now that pre-force circumstances matter and think the respondent also agrees that a moment of danger does not tell the whole story because page 33 and 34 of his brief hegrs there are circumans where there can be imminent danger to the officer and use of force is still reasonable. justice kavanaugh: what you tell an officer that pullsobody over from a traffic violation but, as sometimes happens, that person has de is planning to do something more seriousnd driving aways one potential indicator of that. an officer does not get the time we have spent here today to make the decision, do i let igo knowing this person can do serious harm and will do and we cannot catch the per do i jump on the car? and they have to make that decision. ms. : we agreed to graham

and curry -- inquiry has to be very deferential and sensitive the officer's need for a split-secoision making. the training we would have officers be given is one under.rs are already trained as pointed out in page 41 of brief, you may use force to respond to a dangeourself manufacture a situation where th of forceomes essentially inevitable. will be helpful to officers in split-second moment, a traffic stop like you artists -- and like you are describing it may be reasonable to use force to stop the vehicle becausehe vehicle can be a dangerous weapon. justice kavanaugh: i think the officers will wanto ow, do i let him go or not let him go as a general proposition when somebody pulls away from a traffic stop, or do i jump on the car, in front of the car? i realize we cannot flesh all this out in th ce but

officers are presumably paying attention to this. we have to make -- they have to make those decisions all the ti ms. jacoby: it depends on what you have pulled them over for. if you know or suspect them to be armed. how are you be in your interaction with them, they will right away pose a big danger to people on the road. the respondent says that was the case here. it may have been. it may have been reae to use force to stop the officer or jump on the c. but the fifth circuit did not consider that that is what we think is wrong. she -- justice roberts: is it subjective or objectiviniry into what type of content would create the danger? the equivalent of an eggshell plaintiff. is the officer subject to varieties of reaction? ms. jacoby: the fourth amendment

test is an object reasonableness test. we are not looking into the state of mind of the officer to see if he was acting in good faith or being sensitive or something. it is whether he acted objey, reasonably. justice roberts: the perpetrator in the officer's mind, maybe somebody really views something haa serious danger and in the ficer does not know that. is that pertinent? ms. jacoby: the officer needs to ke into account the imminence hreat he perceives. he might receive the suspect has a bad motivation and is a to do something dangerous but the ultimate reasonableness -- inquiry is thenableness of the officer's assessment that there was imminent threat. objective versus subjective standards, texas argues in its amicus brief and we have not had a chance to d that we are impropererting a say reasonableness is assessed

based on afacts of the officer new. that's not correct. our test is an objection objective reasonss one this court has rejected the aim texas makes. if i can quote from page 641 of the u.s. report. court says the qualified immunity inquiry "will often require exion of the information possessed surgeon officials, butt does not reintroduce into qualified immunity analysis the inquiry into official subjective intent harlow sought to minimize." reports the officer will be making judgments aboutheer the subject is entering -- about to do something in bad fai o dangerous. justiceag: i assume you want twrite an opinion that does not say anything about the weight given to the officer himself creating the danger.

but i am trying to think, given the facts of this case, how an opinion you would want us to write avoids that question en? ms. jacohe narrowest opinion this court would write wouldprior circumstances ma they are part ofhe totality of circumstances. the fifth circuit did not recognize data. if the fifth circuit wore meat on the bones it could say circumstances at the moment ofe importance and it will be a rare cawhich an officer is experi a moment of danger and it is unreasonable to use force. it will be the type of thing we are talking about. the officer has done something outside the bounds of reasonable behavior making use of force almost inevitable. justicgorsuch: why would

we do that and put a thumb on the scale given -- making it almost impossible to make out of for the mimic plan? the standard, we have always said is the totality of the circumstances. by common law that are all questions. can y have layered on top of the fourth amendment qualified immunity for officers in these cases. why would we steating a new jurisprudence of exceptional circces? ms. jacoby:o not think it woul be a new jurisprudence so much a reflection that when balance fourth amendment interests of the individual and has a very strong interest when there is imminent danger to himself or thec. but you're right it is a totality of the cirnce of a vein corey and we would not be asking for departure from that. the reason the court may want to goer and say it will be rarethere is truly a moment of danger because you courts are taking this as where

lito do some sort of officer created danger role where we are getting into a bad circumstance, making a bad stop means the later use of force is automatically unreasonable. that is what werying to guard against. justice gorsuch: that's nice, buts not the issue before this court. justice gorsuch: justice scalia was very clear in his writings that we should not be trying to do black line rules here. ms. jacoby: cly we aren't asking for black line rules. if the courtd to give more cut or it could say as justice ett said in the beard opinion that when there is a momedanger it will often be -- but not always. justice gorsuch: i'm not saying it is not important, just as everything is important. it's important. you are g the scale on it. msjaby: it does not mean --

need to say anythingurther than the narrow opinion justice scalia sketched out with my friend. given the question arou reasonableness use of force in the moment, the circumstances and in the moment, the danger in the moment wl quite important. ashtn rnes: --. justice alito: it is fine to tellomne, a court or anybody else, take into account the tality of the circumstances. but that is fairly meaningless unless you also tell that person what you are examini the totality of the circumans to determine. that's really a difficult question here. are you examining the totality of the circumstances to determine whether the actt forms the fouh endment claim, that same, the allegedly unasonable use of deadlyorce

is unreasonable. or, are you asking the court or the jury to determine whether the whole course of conduct in which the officer was engaged was unreasonable in part inhe sense that it was not prudent. it was a violation of perhaps departmental policies are the best practices that have been established for a police department that some ppl think should be followed by police departments around the country. that is really the difficult question. what would you sthat? ms. jacoby: i would say the former. the question is, it was the use of force the seizure reasonable in the moment? that is what we are trying to get out when we look at the totality of circumstances, not a free will and inquiry into whether the officer over five minutes acted reason that is why we think circumstances under the moment have importance but ido not mean courts have a license to

ignore everything before that mont as the fifth circuit did here. justice alito:hat a court hearing this case be obligated to admit expert testimony by various individuals who have a view abo what our good police practicean what are not good police practices? would that be what the jury determination would boil down to? ms. jacoby: the ultimate determination about whether the officer acted reasonably as according to scott a pure the jury is not deciding that. the jury could be making factual deations about what actually happened when the officeed and all of the rest. as thert is examining officer did, here, jumping on the car, w outside the bounds of reasonable behavior i do think it is importantoook at trading manuals and thli. it c pvide helpful guidance. justice alito: some federal law enforcement officers make vehicle stops.

so what is the teaching? what are they taught ou placing themselves in front of a car or in a position where they could be killed or injured if the driver d to try to drive away? ms. jacoby: i don't know across a rule for stepping in front of cars. i know federicers are trained to use force to respond toger but not enter into sins where they use of force becomes inevitable like the dhs manual my friend points to on page 41 of her brief we 't really train officers to go right up to the constitutione. we will often train officers do not enter into these situations to begin if they do so it could end up not a fourth amendment violation. i expect we will train officers to frequently avoid using force on roads whatnot, even if it would be permissible under the circumstanceto do so. we just want to train them more cautiously, i susp justice kavanaugh: i am curious

after thisase gets resolved on remand if it goes back on remand what the rule will be for officers and what the training manuals will say putting away the abducted cldxample. if somebody is pulling away it might be that they just don't want tbeassled for a traffic violation. but ty uld be about to drive down the street in new orleans. you don't know. they might be on drugs a aut to kill someone on a bike on the side of the road. i don't know what we want officers to do. i don't know how it will get fleshed out. office, if they are held liable f jpi on cars, for anything elset happens thereafter maybe they will let cars go and maybe that is the appropriate.. thinks is i don't know. ms. jacoby: that's not the role the u.s. thinks is appropriate good to use force to stop a car

pulling away from a stop. the use of force to st particular fight is necessarily contextcific. it's an area that dependsthe facts of each case. i recognize that cane unsatisfying giving guidance to officers. police departments mig don't jump on the car no matter what unless you see a weapon or something. they may train them to not go l the way up to the fourth amendment line. justice kavanaugh: an individual officer too would be -- who is risk-averse on being held liable for something is just not going to do it. but anyway. i will stop there. thank you. justice barrett: there is a split on this. what about in the circuits tt don't take the moment of threat approach? the questions justice kavanaugh is asking about guidance for police officers. i'm wondering your view of how

core handling these sorts of cases in that circuit and what might affect police behavior ms. jacoby: tlit is maybe not so much two-sided as a three sided. there have been a courts that we a little towards an officer created danger rule where they seem to suggest the use of force is automatically unreasona earlier in the sequence the officer did anything unreasonable. we do not think it is t. we think it is bad guidance for officers and would lem to but wehink the court should propriately take into account e totality of the circumst officers will have good guidance to use force when necessary, when there is a danger and they the public but to avoidves or situations, manufacturing a effectively becomes inevitable. that is,ng in front of the car, that type of thing. ding to speech is what he has done here.

the petitioner thinks it is. that is what they will hash out below. you can use force respond to danger. don't manufacture arous situation. that goes a long way. justice barrett: it is a three sided split and you are saying fifth circuit on one sideen officer caused the dangers on the other side. what about the circuits in the middle and the concern, that justice kavanaugh is correctly expressing, about what cops do in the moment, i those circuits that take them more middle approach? i take it that is what u.s. is supporting. ms. jacoby: correct. justice barrett that is not problem in these circuits? ms. jacoby: i don't th so. law enforcement officers inm a onsin that does more middle-of-the-road approach and i dot see anything think i havee anything saying they ve a uniquelycult time policing. decisions.to make split-second

often, in cases where a court decides the decision they made was on the w side of the mind they will sti be protected by qualified immunity. we are veryrned in the unit states about officers not g able to engage in aggres enough policing. but we do not think a totality of the circumstances approach that the courtndorsed over and over again would lead down th ph. justice barrett: what is the deal in respondent rates, footnote briefs, the u.s. questions whether sergeant felix jumped on the door shortly before or shortly after. but it is not known. what is the deal with the actual -- factual dispute? ms. jacoby: it seems to suggest distinction between the moment the car started moving forward in the moment of acceleratio it seems now everybody agrees the officer stepped on the car after it started moving forward. ere is a passage we quoted from the district court opinion is before or after thear if it

acceleration. that might be where confusio comes from. the fact that there iusion about this matter of timing could go to the question wheth it is -- the decision to jump was reasonable or not like a further reason to me to send it back to the fifth circuit. justice jackson: it is the rityf circuits that use a totality torrect? ms. jacoby: i think that is correct. justice jackson: re any that there is confusion orts concern about the application of thatest, either on the part of the courts or the officers who do their jobs in that context? ms. jacoby: not to my knowledge. i do think that a feature of th totality of the circumstances approach that applies to the fourth amendment across the board is it does not a provide perfect guidance to

of. that is whave the backstop of the clearlylished pronged immunity and analysis to mae officers are held liable on things where thewe on the wrong side of the line. but i am not aware of the problem in circuits correctly applying the totality. justice jackson is it the case in those circuits correctly applying the test office regularly found to have engaged in using reasonable force? we are talking about the application of a test that necessarily resultsn officer liability, right? ms. jacoby: absolutely. united states would not endorse such a test, of course. justice jackson cannot terri the united states is not taking a position on the fa this case and whether or not o felix used reasonable force and in fact he would be happy with ification that moment of reat doctrine is not what courts should be using and sending it back to the fifth circuit for the fourth amendment analysis. in this situation?

justice jackson: correct. our interest is narrow. we are just interested in correcting the fifth circuit's legal error. . mccloud: when an officer doing his duty confronts a threat to his safety or the satyf others it is reasonable for the officer to use the fourth two io at threat. this is what this court has concluded. at the momen sergeant felix used course he was clinging to the side ofheleeing suspect's car and reasonably oblid -- believed his life was in imminentanr. that conclusion should end this case. we are defending the decision below and the moment of threat doctrine as it actuay ists. the core premise of that doctrine is an officer does not lose his right to dendimself just because he made a mistake at an earlier point in time. but applying that world does t

require courts to ignore everything that happened prior to the use of force. like otherircuits, the fifth circuit has repeatedly held that preceding events are relevant to the extent they inform the officer's peepon of the danger he faced. the panel decision below repeatedly quoted those pres. the panel did not and could not errule them. the petitioner asked the court to create a new breach of constitutional tort under which thefficer facing the barrel of a gun it loses his right to defendimself if he previously used bad tactics or poor plni, contrary to precedent or common sense. grandma asks only if an officer's use of force was reasonable ithparticular circumstances he faced and requires courts to put themselves in that shoes of the officer who used forced not to second-guess every decision at fir made inhe most stressful rcstances

imaginable. mendez rejected similar offer kurt -ofcer created danger theories as inconsistent with president. the court should reject the theory in this case and affirmed the judgment othcourt of appeals. justice thomas: how would you assess the difference between the fifth circuit approach as yosee it and in the totaty of the circumstances approach as we heard this morning? mr. mccloud: i do not think there is dference between what the fifth circuit is and wh graham directs. justice alito: the solicitor -- justice thomas: the solicitor genot so much graham. mr. mccloud: the difference between our po and the government's opinion if they wantb include arguments that the officer escalatedcreated the danger and we don't think that is a relevant situation under

graham or the four andment. it is whether there was a legitimate threat to the firs. justice thomas: were they arguinth this morning? mr. mccloud:mrzelinski said sergeant felix created a daers situation. justice om: i thought he said hean to argue that later when he goes back. mr. mccloud: hat was the argument they try to advance in the fifth circuit and this is the one thing i agree with judge higginbotham about. he says the argument is foreclosed under fifthirit law and that is the actual issue that divides the circuits. there is no split on the question ofheer you can consider predi events. every coordinated hunter nsiders preceding events. the question is, whether you can use that preceding events as a basimaking an argument that the officer made a mistake or used --. justice jackso that's not what you argued before and i'm ve confused now. it seems as though the moment of e threat doctrinsts, as

everybody has understood it, about evidence, essentially what can you look at to prove the unbudgeted fourth amendment -- a legend foth amendment excessive force cl can you look at anything that occurred outside the moment of the threat, anything that occurred previously? w you seem to be suggesting it's about liability. at they are open to creating a new breach of constitution tort. it is about whet not the police officer can be held liable for his own negligence in the timereding. i ha n seen that concept anywhe. mr. mccloud: ha was the argument made below, issue number one in the petitioners fih circuit brief that sergeant felix accelerated the danger and was negligent jumping onto the car. that issue divides the circuits. the circuit has never adopted a rule that you can't look at anything that happened prior to use of force. justice jackson:sn't it true

that in your bio you stated the fifth circuit's appr involves reviewing the events immediately prior to the use of deadly force as opposed to othe prior conduct? mr. mccloud: the orior conduct being referred to there is conduct that is alleged to have cre-. justice jackson this sentence suggests the dividing line is between lookly at events deadly force as opposed to other priouct. mr. mccloud: no, your honor. on page 33 we said every court considers prior events. justice kagan: whatever you said or did not say mr. mccloud it is eathat if you look at the court below the court below said we are only okg at the prior two seconds and we aren't going to look at anything before that. ev ithere is some kind of intro rct cfuon going on in the fifth ciritand there might be, it would not be

surprising if on an issue like this. but we have two opinions lo both the circuit court and a district court that expressed a desire to look beyond two seconds. but said, we can only look at the prior two send you seem to be saying,h's wrong. i mean, you can look back beyond the prior two seconds. this suggests to me tres an easy way of just vacating and remanding and giving itac to the courts belowo dress, ok, once weook behind, beyond the twsends and we have a fuller scope of evidence, then we will make our reasonableness inquiry. hopefully without putting a thumb on the scales either way. mr. mccloud: a couple responses on that. first, i don't believe that is the best reading of the panel decision. it's not the l a he does not makehe law for the fifth circuit by just asserting

things. justice gorsuch:air enough. i understand you read the inn differently than justice kagan does or may judge gginbotham did. but what is wrong with proceeding on that understanding? mr. mccloud: a number of things. first, to the extent you are concerned about the breast of the statements -- breadthf the statements in the panel decision -- ste gorsuch: the only thing we are concerned with is the two second rule, whether it is there are not. we just clarified that is not the law, send it back. any objections? mr. mccloud: yes. because you would be send back for a remand that point is. -- that is pointless. e gorsuch: the number of romae om this court that lawyersell us our pointless could fill volumes. any other objection besides your view it would be pointless? mr. mccloud: yes. my other objection is it would be creating aanrous

precedent because it could b seen as endorsing the sort of officer created danger argument the petitioner wants to make. justice gorsuch: fine. that is a fair concern. but, we have also bn lking about putting that aside, bracketing that, making it ea as we did in mde, that fo in mendez reserved the question and we reserve it again, possibly. possibly. ife do that, any other objections? mr. mccloud: if i could asked, if you do that, do one additional thing. make it clear andard would have to be high and near negligence alone would note enough to satisfy this. justice gorsuch: neggee involves mens rea. that is an objective test. up until then you had me. no i'm afraid i'm getting off e train. mr. mccloud: i agree negligence is not a relevant consideration. justice gorsuch: thanks. mr. mccloud: that is test

courts of appeals are applying in the country now. justice gorsuch: do you want a negligence test or not? mr. mccloud: i do not want a glence test. i want to test that says you only look at conducthais regulated by the fourth amendment. that is searches and seizures. justice rsh: objective inquiry loot the totality of the circumstances, right? mr. mccloud: an objective inquat looks at the tality of the circumstances to determine whether the officer generally -- genuinely believed there was a threat you don't look at the totality to determine if the officer made a ste. justice gorsuch: whether there was excessive use of foe, is the latter was the qstn? mr. mccloud: this court has consistently said when an fir confronts a genuine threat it's not excessive to use force and i would be very concerned -- justice gorsuch: that's an objective inquiry. mr. mccloud: it is. justice roberts help -- just her -- justice rober: w broad is the totality of circumstanc in your view?

this officer got d-in excessive force? inot part of the totality? mr. mccloud: o. we don't view that as relevant. rin says that clearly. those policies and procedures don't have ytng to do with the reasonable this question of the fourth amendme f the fourth amendment it's not a regulation of the reasonableness in aenal sense of everything officers do. it's aulation of specific coen searches and seizures. at this court has established clear guidelines for determining if searches caesar's are reasonable per the dashed searches and seizures ar reasonable for the other side wants to take anything at officer does and says, if a jury throug hindsight could say that was a bad call or if an expert could come innd say i would not have done that, that could be the basis for a fourth amendment claim. ste sotomayor: it could be th wn this goes down below the fifth circuit will actually address this question, butt

did not. it repeatedly said we can't look at any of endeavor. -- at any event ever. you could see itn ur own brief that there could be situations where officer is th aggressor. page 34 as i think that page of ur brief. you would met at officer could be an aggressor and act unlawfully, correct? but, your articulation of this rule is just trying to get us to draw lineshahave not even been addressed by the court. mr. mccloud: ihink they have been, justice sotomayor: respectfully. respectfully the court said we can only look at the actions in thtwminutes before the moment of threat. if your answer had been if he walked up in an unmarked car and -- in plainclothes with a gun drawn and walked up to thear and this person took off or

accelerated slightly and he jumped on and shot blindly, do you think that is reasonable mr. mccloud: that would not be reasonable justice sotomayor: you have given the gamewa at tt int you have to look at what the officer did. mr. mccloud: we agree you can look at what the officer did. the fifth circuit did look at what the officer did. justice sotomayor: it did not in this case. mr. mccloud: because the only argument the petitionema below, the only action she said you should okt was based on the officer. justice sotomayor:hr judges and said we should not be limi thisay. so, we are stuck with this. we think the judgment is right, but it wasotddressed at all. officer created danger was not addressed end the other side says clearly it is not raising it here. . mccloud: it will raise it on remand. justice sotomayor: you want an anticipatory building from us.

mr. mcou i think it was addresd. the best evidence i can give you of that ishease is the fifth circuiitlf cited for the proposition we don't look at the action of the officer. those are all cases in which the arment being made was the argument they made below that the officer created a dangerous situatn at was the basis for liability. that is the argument the fifth circuit sd 's not considering and that is what judge higgboam said he wanted to consider. judge jackson: did the plaintiff ed the court should look at the totality of circumstances? mr. mccloud: yes. judge jackson: did yoct to that being to test the court should apply when it decided what it would looo make the determination? mr. mccloud: n our objection was you should not be adoptinghiofficer created danger theory considering whether sergeant felix escalated the situation. justice jackson: you did t y the moment of threat doctrine was the test in the fifth circuit and that is only wh you should be looking at, not circumstances, facts, and things

that happened fo the moment of the threat? if i look at the record i will find you arguing that? mr. mccloud: in the fifth circuit briefing i don't believe we did because the tea doctrine did not come up until jue higginbotham's opinion in thisase. it was not a legal opinion recognized until prior to that. if you look, i think there are four hits for that. this is one eally originated that. ouarment below was whether sergeant felix escalated the dangerasrrelevant. judge jackson: but you can see that is not what the fifth circuit held in this case. that iwas irrelevant whether he accelerated the danger or ntributed to it? that is not there holding in this case. mr. mccloud: i believe it is there holding and what judge higginbotham objected to. look at 1580, the appendix. judge higginbotham set i would come out differently becau i believe we should consider the

fact sergeant felix escalated the danger othsituation. that was the argument they made at he wanted them to consider, the whole basis for the disagreement between us and the court of appeals and the disagreement that actually divides the circuit courts on this question. justice sotomayor: can i reduce three sentences from this opinion? this is the majority. we may oy ask whether officer felix was in danger at the moment of the threat thacaed him to use deadly force against barns. it said its inquiry w "confined to whether the officers o other persons were in dgeat the moment of the thre that resultedn the officer's use of deadly force. it stated, any of the officer's actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in thisirit." so judge higginbotham did not make up the moment of the threat

doctrine. it has bn ed and cited repeatedly by other circuits. 's well known by that name. this is not a made-up theory. let me finish. you can see page 34. that if the officer was the aggressor, there are circumstances. you do not think this is onef them. but, there are circumstances in which th officer's actions are relevant, correct? mr. mccloud: we agree the officer's actions are relevant. cole versus carson. justice sotomayor: thefficer's actions leading up to the shootings are not reva. i don't see how i can read that any other way. they say they are not relevant in this case. they said they are never relevant. mr. mccloud: you have to read the opinion beincid there, a case that says we apply totality

of the circumstances and when it mas e statement that we don't consid t officer's actions. justice sotomayor: totality of e circumstances were used this opinion? they considered the totality of the circumstances but not the petitioner's argument that sergeant felix created -- that was the aumt made below. judge jackson can you explain judge higginbotham's concurrent sentence, i write separately to express my concernsith the moment of the threat doctrine as a counter is a supreme court instruction to look to the totality of the circumstances when assessing the reasonableness of an officer's use of deadly fo mr. mcclou yes, he's wrong the best evidence i can give you of that is cole ver carson. judge jackson: do you believe there is such a thing as a moment of threat doctrine that was inition to totality of circces test that he was hoping the court

uld be able to apply? mr. mccloud: i do know how he could reasonably believe that given he wrote cole versus rs, which is all about pre-shooting facts. judge kagan: he did believe it and that believe produce the decisionel. mr. mccloud: i do not believe you should attribute his statements in a solo concurrent that others did not join to the opinions of the panel. judge kagan: well, he wrote both and he was tellingouxactly why he wrote the majority opio the way he did,ecse he felt constrained. i understand tt u think he was not so constrained. but we a supposed to be reviewing this decision and he was telling us, i, the majority opinion writer felt i was cotrained to do nothing more than look at the prior two seconds. you don't say thats right. so it seems as though we could kick it back and let you guys fight it out as to the relevance of anything that happened to be

on the prior two seconds. mr. mccloud: i would encouge the court if it ends up remanding to say a little more than simply do it again, fifth circuit. it is impornt to say something about this issue of officer crted danger because it has divided the circuits we number of years. thcourt has cases that present that issue. the bond casfr a few terms ago that was rerd is another. it is lurking in the background of many excessive forceis doing real harm in circuits that apply that. e ninth circus, the 10th circuit, it is the reason we have amici from california that say the standard mak i impossible for us to train officers and give them clear guidance. it is incumbent on the court to offer a little more clarity on at. justice barrett: what clarity would you want us to giv mr. mccloud: if the court is going to offer or accept some version of our broker -- of

officer crte dger, you would want to make clear tt something like negligence alone is not going to be enough. it is going to be an ficer's creation of the danger is the basis for a fourth amendment claim. >> thank you, counsel, justice thomas. justice thomas: i understand you are saying it is not so much that the difference between whether to u totality of circumstances, bu rather, what evidenld be aille -- or could be ud in that analysis. here you sayhe officer created danger should -- that the fifth circuit sawould not permit that. assessme. mr. mccloud: correct. judge thomas: so it is a

subcategorofhe totality of circumstances. mr. mccloud: it is a particular argument off limit in the fifth circuit and are in the moment -- majority of the circus considering the totality of circumstances. you can okt what the officer di prior to using force but you can't blame the officer for creating a bad situation and second-guess all of the decisions he mad justice sotomayor: but you do believe that there are situations, as you admitted earlier, where an officer's actions can be considered to have created a danger, unreasonably? umr. mccloud: i don't agree withhat framing. i agree you can consider an officer's actions and an officer's actions can make the use of force less reasonable. the cole versus rs example is instructive on that. it is the casehe the majority of the fifth circuit on bond said the things the officers didri to using forc made it unreasonable for them to use force at aater point.

but they did not say, did they violate policies or could i have made a better decision? that is the fundamental difference between my apprch and the petitioner's approach. justice kagan: the question presented is whether courts should apply a moment of the threat doctrine when evaluated and excessive force claim. to me, that means in the threat doctrine, do you juslo at the second orwo before or do you wideyo scope to look at other things beyond that? the question you are raising is verymptant. probably one on which there is some confusion. but definitely not the question in this case. the question of what weight to give the facts about or the possibility that the officer created the danger ith reasonless inquiry, a completely different question that we did not take search on.

it is not seem we are well-positioned in this seo discuss that. mr. mccloud: i want to respectfully push back on that. you have to understand what the moment of threat doctrine is. its absolutely not aocine that says, prior events are f-mits. the is no court in the country standard.that version of the the dispute between the courts and what divides us in this case is rather, -whher, when looking at the prior events you can find if meing the officers did was reasonable in a neral cosmic sense and say that contributed to the danger d even though it is itself not violation of the fourth amendment, it is a basis for a claim. amendment excessive force . pettit: in the 5 years

rejected at least three times that an offices otherwise lawful conduct violates t fourth amendment because an earlierit-second decision made confrontation more likely. whatudge higginbotham dubbed the moment of threat doctrine merely implies that rule. as of the court recognized cases like mendez and she had, 's necessary because the fourth amendment must applied by thousands of real crops i the real worldut an unacceptable degree of unpredictability. the momt the officer created risky that petitioners have continuously pressed at least until the reply brief in this court is antithetical to that proposition because it invites subjective inquiry into officer's te that cannot be conducted without nefit of hindsight. and, as mendez recnid, it involves tricky questions and

fuzzy standards of causation that ca't be easily applied. rejected that proposition its judgment should beffmed. i welcome court questions. justice thomas: would you articulate for us what you think thrict court and the court of appeals held? ms. pettit: i think the district court held, and i would point your honor to footnote two unr the fifth circuit that created risk weren't relevant under the fifth circuit test, the argument the petitioner was pursuing at that time. to justice sor's questi earlier the statements she's referring to have to be read in it ishat the fifth circuit wasse rejecting when it set up our were iant. judge jackson: sorry. the fifth circuit made in its opinion regardin it's holding was have to be read in light of the arguments that were

before it? ms. pettit: ieve that is what they are referring to when they say tha the actions you are talking about are relevant. judge jackson: what is a judge hitham same when he says "i write separately to express my concern with the circuit of threat doctrine" but does not define ithe way you have. he says doctrine counters at the supreme court instructions to look at the totalithe circumstances. ms. pettit: i would point you to page 15 a of his opinion our reasonableness analysis, considering the totality of circumances is merely performative. the dispute appears to be not the formulatione rule as i articulated it, but its application. justice jackson: he said it is performative if the moment of is in the sole determining factor in their reasonablenalysis. he says we have a moment of the threat doctrine that tells us we only loothis moment.

makes any references to totality merely performative, because we are looking at the totality, just at the moment of the thre do you dispute at least he conceptualized the doctrine in the way i am describ and the way petitioners have put it forward? ms. : there are certainly statements towards that effect. he has created aimilar concurrence in a case called masoninst lafayette city. justice jackson: i am talking about this c let me tell you what i think is happening and get your reaction. it seems like the question presented here is asking us to decide which tes it sees the moment of the test -- threattrine as distinct from the circumstances. the fifth circuit applient of the threat. is that right or wrong? which circumstances, assuming totality, is it ok to inclu

consider the circumstance of the officer's own conduct icots are doing that, is that a problem? that's a separate question that isot, i think, properly within the scope of the question presented which just asks us, which test? can you help me understand why we would get into whether the particular circue you have identified as one of courts should be looking at or not? ms. pettit: i agree with my chni that it's difficult to answer t question presented thout getting into that. i would point to the petit's opening brief discussing precisely this pe of question. while they claim to dila it, they are actually talking about creation of risk. in responding to questionsro justice alito and justice thomas to articulate their tt, i heard them say at least twice why was he jumping on the car?

i heard from the u.s. multiple times, manufacturing the risk is conflating the two questions because th related. in fact that's the source of this dispute among the circuit the ninth and 10th circus say intentional, deliberate conduct creating the risk can obviate an officer's ability to defend himself. the fifth circuit says that's not th. that's thee of the dispute. ying to take it out of that context and s are you considerintwseconds or 30? that gets into the point where there is not a circuit spl the fifth circuit is looking at thoses. i would point the court singleton againstova where judge higginbotham joined an ion six months after this one in which, like colby carso he wh us wrote three years earlier thathe fifth circuit was describing all pre-force conduct.

so the fifth cirit is not upholding the momentf reat doctrine. this court ultimately reviews judgments, not statements and opinns justice gorsuch: i appreciate atappened below may be diert than what is happening here. we did take your question about the moment of threat doctrine. i understand you thk at's not a thing. what is wrong with resolving just the question presented? and bring us on record-based concerns. it is a question. granted cert on it. i think everybody agrees is wrong. what's the harm of saying that? >> as long as your is clear that you are not endorsing ninth and 10th circuit, i do not think there is anyinwrong. it is unnecessary.lleague that i point the court to pagea,

which the fifth circuit quoted at length a district court opinion that looked at that, so i don't think it is necessary, but as long as the court is clear, wha no quarrel with such an action. going to the nature of the questions hereorust a minute, i would point out that the inquiry here -- i heard a lot of concerns about line drawing, and i find that interesting because the petitioner's argument was that they wanted to consider the jump as well as the shoot. that in itself is a line-drawg question, and it is very deliberate because they have ligad everything up until the jump was reasonable andhe district court concluded that it was because, again, courtbew are not considering just the two sectors. instead, they are considering the totality of the ciumstances. to the question of the united states about the subjective again to arguments that haves

been raised up until the requirement, which was after o brief in which the petitioner was endorsing the ninthnd 10th circuit, this court and mendez expressly acknowledged was subjective, which is why we think this court, it is going to remand and makes clear that it is not adopting that will be a fundamental shift in the fourth amendment and also a shift that going to justice kavanaugh's questions earlier, we create an impossibility for law enforcement agencieso train officers for the reasons described in california sheriff's association's there are no further questions. >> thank you, counsel. justice thomas? justice gorsuch? justice jackson? rebuttal mr.skyy?

first, justice jackson, asked my friend on the other side, listen to minutes 28 and 29 of the oral argument. you will hear that there. justice sotomayor, you noted that my friends on the other side agreed you need to look at the whole pictureat the officer did, the jump and the shoot. there is no rule that they cannot duish thatase from this case. third, justice kavanaugh, you had some practical questions about how this will impact effective policing officers receive qualified immunity, as decatur brief discusses. 99%-plus percent of the time, they are also condemned by the municipality. you have a brief up high ranking police chiefs seeking you should for the petitioner and it not hamper but promote good policing and third, the dhule is a good example of why this will not harm effective policing. orth, justice alito, i want to car, we are not saying that every single mistake will result

in liability. what we are saying is you have to look at the whole picture, and here, that i than just two seconds. finally, j gorsuch, agree wholeheartedly, this rule is inconsistent with common law. if you rule and adopt the mome of the threat doctrine, you will essey enact a here to unprecedented rule permitted -- permitting the killing of

he wrote commemorative edition later from birmingham jail and talks about the book, an organization he founded in prison. >> the judge might have been -- i think i did as testament not

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