Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtain Barnes, Deceased v. Felix Roberto, Jr. et al.

The Fourth Amendment prohibits a police officer from using “unreasonable” force. U.S. Const. amend. IV. In Tennessee v. Garner and Graham v. Connor, this Court held that reasonableness depends on “the totality of the circumstances.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 9 (1985)). Garner expanded upon Graham in addressing whether deadly force is justifiable in preventing individuals from attempting to escape custody, ruling the common law “fleeing felon” rule unconstitutional and establishing that officers can only use deadly force to stop a fleeing suspect if they have probable cause to believe the suspect poses a significant threat of death or serious physical harm to the officer or others. But in the issue on appeal, the Fifth Circuit not only rejected the limitations of the fleeing felon rule imposed by Garner but effectively expanded the old rule to apply to any detainee who poses a “risk of flight”, including those merely suspected of criminal activity, and in so doing has created a circuit split on the issue with all of the other appellate courts and with the Supreme Court’s fortyyear-old precedent in Garner. Abandoning even its own established precedent requiring “sloshing through the fact-filled morass” of each case, the Fifth Circuit now applies a new doctrine that establishes a per se rule allowing the use of deadly force any time a suspect—felon or not—poses a “risk of flight”, regardless of the “totality of the circumstances” surrounding the incident. The question presented is: Whether the mere “risk of flight” renders a suspect so dangerous to the public at large that police are justified under the Fourth Amendment in using deadly force to prevent their escape. (i)