Brett Kavanaugh Just Gave a Gratuitous Win to Cops Who Kill
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The Constitution was never meant to be blind when judging the use of force by the state. But at the U.S. Court of Appeals for the 5th Circuit, it was forced to squint. For years, the court had claimed to follow the Supreme Court’s rule that police use of force must be judged by the “totality of the circumstances.” But in truth, it had invented a rule that narrowed vision to a sliver of time—a doctrine it called the “moment of threat.” In cases involving lethal encounters, the 5th Circuit told courts to ignore everything but the instant an officer claimed to need to use deadly force.
After Ashtian Barnes was killed by police officer Roberto Felix in 2016—shot twice during a stop over an unpaid toll on a rental car he was driving—his mother sought civil relief in federal court. But the case never reached a jury. The 5th Circuit decided that only the two seconds when Felix mounted the doorsill of Barnes’ moving car and fired his gun recklessly into it mattered, ruling that Felix’s fear in that instant made the shooting reasonable. Everything else—the toll violation Barnes didn’t owe, the officer’s decision to leap onto and shoot into a moving car, the chaos and terror of the encounter—was erased. The court refused to allow any of it to be weighed or questioned, sealing the law’s gaze to a sliver of time and a flash of violence frozen in isolation.
Thankfully, on Thursday, the U.S. Supreme Court rejected this distortion of the law. Writing for a unanimous court, Justice Elena Kagan restored the basic principle that reasonableness under the Fourth Amendment cannot be measured in a blink. Courts must consider the “totality of the circumstances,” she wrote, because reasonableness emerges from context. The 5th Circuit’s moment-of-threat doctrine, by contrast, abandoned the all-times-considered approach, reducing the analysis to a snapshot, a fragment torn from the sequence of events. As Kagan explained, this doctrine imposed “chronological blinkers,” a rule that forced judges to ignore everything except the final seconds of violence. It blinded courts to the reasons for a stop, the interactions between the officer and the suspect, and any facts that might have shown whether a reasonable officer would have viewed the suspect’s conduct as threatening or, instead, innocuous. In Barnes v. Felix, that meant pretending that Barnes’ death existed in a vacuum detached from the “facts and events leading up to the climactic moment.”
Beyond merely affirming the test that courts have applied for decades, the court’s opinion exposed a stark truth: The moment-of-threat doctrine was a weaponized fiction that did not misunderstand precedent but instead rewrote it. In its now-vacated opinion, the 5th Circuit paid lip service to the Supreme Court’s demand that courts weigh all relevant circumstances. But in the same breath, it carved out an exception for deadly force cases, declaring that in these moments, when an officer’s weapon ends a life, the context is irrelevant. The court acknowledged the rule, then erased it.
During oral arguments, Felix’s attorney tried to salvage this fiction, insisting that the 5th Circuit’s invention still allowed courts to consider preshooting facts. But, as Kagan exposed, this was a rhetorical sleight of hand. In reducing everything but a “two-second snippet” to a ghost, the 5th Circuit had applied a made-up doctrine that claimed that everything mattered, then guaranteed that nothing but two seconds did.
But even as the Supreme Court struck down the moment-of-threat doctrine, it left another question circling just outside its ruling—whether an officer’s own reckless actions that create or escalate a dangerous situation can render their use of deadly force unreasonable. The court explicitly declined to answer that question, even though it hovered over the case and surfaced repeatedly in oral arguments. As Kagan explained, the issue was not before the court because the lower courts, locked into the 5th Circuit’s narrow time frame, never addressed it. But the question lingers, and it is impossible to separate from the reality of police violence.
That Felix’s actions created the danger in this case is no anomaly. Across the country, deadly encounters begin with officers making decisions that turn routine stops into fatal confrontations.
By vacating and remanding, SCOTUS left lower courts to define what totality of the circumstances means in practice. Will courts recognize that an officer’s reckless decisions are part of the context they must consider, or will they sideline them, treating them as legally irrelevant? Those rulings will become the next battleground. It is only a matter of time before the Supreme Court is asked to decide whether an officer can manufacture the danger they later use to justify force, including force that turns deadly.
In his concurrence in Barnes v. Felix, Justice Brett Kavanaugh tells a story of fear—a story in which danger is a shadow that follows every officer, where every traffic stop is a gauntlet, where even a routine violation can be a trap. He speaks of officers surrounded by threats, recites statistics of those killed in the line of duty, paints a portrait of chaos ever lurking at the roadside. But this is not just a narrative; it is a doctrine, one that warps everything around it. Kavanaugh’s vision of the law is a prism that bends reality to fit a single truth: The officer’s fear is always justified; the officer’s perspective is always paramount. His concurrence is a fortress built out of fear and reinforced with selective memory.
But his fear is a mirror, reflecting only the terror of officers, never the terror of those they stop. Kavanaugh’s account—joined by Justices Amy Coney Barrett, Clarence Thomas, and Samuel Alito—has room for the dangers officers face but none for the danger they create. It speaks of the risks they encounter but says nothing of the dead they leave behind. It insists that courts must not judge from the “peace of a judge’s chambers” or with “20/20 vision of hindsight.” But this is not a neutral caution. It is a whispered command. A message that even if courts consider the “totality of the circumstances,” they must do so through the officer’s eyes, measuring every decision against the constant specter of danger.
But for those of us whose memory is a panorama, Tamir Rice was 12 years old, playing alone in a park with a toy gun. Officers arrived, and he was dead in seconds. No warning, no questions, just bullets. Eric Garner was standing on a sidewalk, selling loose cigarettes, his hands empty, as he was swarmed by a group of officers and one’s arm squeezed the life from him. George Floyd was accused of using a counterfeit bill, his neck crushed beneath an officer’s knee for nine minutes and 29 seconds, begging for air, calling out for his mother. Sandra Bland was pulled over for a lane change, questioned, threatened, arrested, and found dead in a jail cell three days later. Philando Castile calmly reached for his license with his fiancée and her child beside him, and he was shot dead anyway. Atatiana Jefferson was playing video games with her nephew in her own home when an officer fired through her window, killing her instantly. Botham Jean was eating ice cream in his own apartment when an officer entered, claimed she had mistaken it for hers, and shot him dead. Elijah McClain was walking home, wearing a ski mask to keep warm, dancing to music only he could hear, until police tackled him, injected him with ketamine, and left him dying on the pavement.
Most were on foot. None tried to flee. All were killed in places where they should have been safe—at home, in a car, on a sidewalk, in a park. And in each case, the officer’s fear became a defense, the deaths transformed into footnotes in the story of danger police claim to face.
But for Black Americans, this is not just a pattern; it is a prophecy. A grim, predictable cycle where every encounter with police is a test of survival. Where the officer’s fear is a weapon, and their own fear is a threat. And Kavanaugh’s concurrence gives that fear muscle. It pathologizes flight, turning the desperate decision to run—often a product of fear—into evidence of criminality. It insists that fleeing an encounter with police is itself proof of guilt, that hesitation is a sign of aggression, and that killing becomes a reflex.
He writes of the dangers officers face but never asks why so many Black Americans flee. Not because they are guilty, but because they know that even the most routine stop can become a death sentence. They know that even their silence can be seen as defiance, their compliance as threat. They know that mere dignity can be dangerous.
And for Black families, the fear is not theoretical. It is a shadow that falls over every goodbye. It is the mothers who teach their sons how to speak softly, how to keep their hands visible, how to survive a police encounter without becoming a hashtag. It is the daughters who learn to keep their eyes forward, to say “Yes, sir” and “No, sir” even when they are afraid. It is the wives who pray when the door closes, the fathers who watch the clock, the children who wait for the sound of a key in the lock, hoping that this time their loved one will come home.
But Kavanaugh has no pages for them. No pages for the dead. He devotes paragraph after paragraph to the dangers officers face, spinning a story of chaos and threat, but his vision is a tunnel.
And this is where Barnes v. Felix—a unanimous decision that seemed to restore the promise of the “totality of the circumstances”—becomes something troubling. Because even in a case in which the court unanimously struck down a doctrine that blinded judges to context, four justices went out of their way to speak for police, to tell a story of fear, to plant a flag for a future in which officer anxiety becomes the measure of reasonableness under a framework they insisted needed restoration.
The totality-of-the-circumstances test, though, has always required courts to consider the officer’s perspective. The standard is already built around the officer’s view of events, and yet four justices felt compelled to carve out a separate space for officer fear, as though that fear might be forgotten.
Why add this unnecessary flourish? Because the concurrence is not just a reflection on the facts of Barnes v. Felix; it is a promise that even in a test meant to measure context, the law will always tilt toward the badge.
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