The New Jersey Police Chief Magazine | January 2025
SCOTUS Year in Review : ‘ Officer-Created Jeopardy ,’ Gun Rights and Public Nuisance Law Under Review
These decisions could redefine police procedures , training and community interactions nationwide
Reprinted with permission from Police1 . com
Last year ’ s Supreme Court review focused on cases the Court declined to review and what those denials of certiorari might signal for future cases . This year ’ s review is mostly about one case pending before the Court .
In October , certiorari was granted in Barnes v . Felix , a case from the Fifth Circuit Court of Appeals focusing on how to evaluate excessive force claims under the Fourth Amendment . The facts of Barnes began with a car stop and end with the officer shooting and killing the driver . The Court must determine whether the officer ’ s pre-shooting actions created the necessity for the use of deadly force .
Dashcam video showed that shortly after the driver ’ s side door opened , Officer Roberto Felix stepped onto the car as the driver , Ashtian Barnes , pulled away . Felix is heard telling Barnes not to move immediately prior to the vehicle moving forward . Officer Felix fired several shots into the car as it accelerated several hundred feet along the shoulder of a busy interstate .
The reasonableness and necessity of Officer Felix ’ s actions are being questioned by the Barnes ’ family who are asking the Supreme Court to overturn the Fifth Circuit . The “ moment of the threat doctrine ” evaluates the reasonableness of an officer ’ s actions only in the narrow window when the officer ’ s safety is threatened . The Fifth Circuit , along with the Second , Fourth and Eighth , use a cabined approach to the Graham v . Connor “ totality of the circumstances ” reasonableness standard in that they do not base decisions on events preceding the moment of the threat . In contrast , the other eight circuits — the First , Third , Sixth , Seventh , Ninth , Tenth , Eleventh , and D . C . Circuits — reject the moment of the threat doctrine and follow the “ totality of the circumstances ” evaluation , including the officer ’ s actions leading up to the use of force . This latter review aligns with the “ officer created jeopardy ” theory at the heart of the petitioner ’ s claim in Barnes v . Felix .
The Supreme Court has not explicitly ruled in this area . In two prior cases , City and County of San Francisco v . Sheehan , 575 U . S . 600 ( 2015 ) and County of Los Angeles v . Mendez , 581 U . S . 420 ( 2017 ), the Court left unresolved the issue regarding officer conduct leading to the use of deadly physical force . Barnes v . Felix is a closely watched case that , aside from unifying the circuit court split , potentially will have a significant impact on the use of force training . More to follow as this case progresses toward a final decision .
Second Amendment Cases Decided Last year I noted two Second Amendment cases under review that could have important outcomes for police officers and their exposure to gun threats and violence . Both cases , Garland v . Cargill and U . S . v . Rahimi were decided this term .
In Garland , the Court held that a bump stock is not a “ machinegun ” as defined in 26 USC § 5845 ( b ). The bump stock is a modification to a regular rifle stock that when held against the shoulder frees the weapon to slide back and forth quickly by using the fore of the kickback against the shooter ’ s body . It was used in the October 1 , 2017 , Las Vegas Route 51 Harvest Festival mass shooting where the shooter was able to unleash over 1,000 rounds in 10 minutes .
The Supreme Court ’ s 6-3 decision held that Alcohol , Tobacco , and Firearms had exceeded its statutory authority by issuing a Rule classifying bump stock as a “ machinegun .”
In U . S . v . Rahimi , the Court held 8-1 that 18 USC § 922 ( g )( 8 ), which prohibits the possession of firearms by persons subject to domestic violence restraining orders , does not violate the Second Amendment . Petitioner , Zackey Rahimi , physically injured his girlfriend during a lunchtime argument , retrieved a gun from his car , and fired a shot at either his fleeing girlfriend or a bystander watching the incident unfold . He later called his girlfriend and threatened to shoot her if she reported the afternoon incident to police . The girlfriend obtained a protective order and the court suspended Rahimi ’ s gun license . He subsequently violated the order , was arrested for threatening a different woman with a gun and linked by police to five other shootings . Police obtained a warrant to search his residence where they found a rifle , pistol and ammunition . Rahimi was indicted for violating the federal statute .
The Court ’ s decision said the Second Amendment right to keep and bear arms is fundamental but not unlimited . An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with Second Amendment principles , the Court held .
Justice Thomas , who authored the Garland majority opinion , was the lone dissent herein and questioned whether the government
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