I have recently written in critique of appellate courts not getting their job done—not reasonably looking to achieve consensus, and instead judges seeming to write separate opinions, well, just because they each can. Along comes a wonderful case study, courtesy of the Supremes: Barnes v. Felix, No. 23-1239 (U.S. May 15, 2025).
The issue in Barnes is legally straightforward. The Fourth Amendment prohibits unreasonable searches and seizures, and one manner in which a police officer might act unreasonably is through excessive force. Even if, say, there is the necessary reasonable suspicion warranting a temporary investigative detention, it cannot be achieved, without more, by taser, by baton, or (thank god) by bullet. And, in assessing the reasonableness of police force, courts must assess the totality of the circumstances. All of this is well established, and so Barnes merely had to reject a strange Fifth Circuit rule, and a rule doubted in concurrence by the very author of the underlying Fifth Circuit opinion (yet nonetheless operating as circuit rule under its rule of orderliness). That “moment-of-the-threat rule” looked only “to the circumstances existing at the precise time an officer perceived [a] threat,” which is definitionally not the totality. Thus, ‘no,’ said the Supreme Court in Barnes, we meant what we have always said: Fourth Amendment reasonableness determinations are made considering the totality of relevant circumstances. The end.
Easy enough. So, it is wonderful (genuinely) to see Barnes be a unanimous opinion (authored by Justice Kagan).
If I am to critique that opinion in light of the ‘do your job and do it well’ framework, it’s that it is unnecessarily long. For a case as straightforward as this one, perhaps the student who inquired, “Is this a five-paragraph essay or a seven-paragraph essay?” thinking there were only such two types in the world, was not so wrong. When you can get the job done so quickly, it would best serve the purposes of the law if you do. So when, after rather exhaustively saying, every which way, how consideration of a single moment is not a totality, the Court went on to address the strained arguments of respondent to the contrary… we could do without.
But, again, unanimity! I’m reasonably content.
Until, that is, you get me started on the concurrence of Justice Kavanaugh, joined by Justices Thomas, Alito, and Barrett. How could one possibly need to concur, you ask, in such a straightforward question-of-law case? Is it because the legal rule is actually not as easy as it seems?
Oh no. Nothing of the sort.
Kavanagh “write[s] separately to add a few points about the dangers of traffic stops for police officers.” There was this tragic stop on April 8, 2023, you see, in Cameron, Wisconsin. And then another on December 8, 2024, in Terrell, Texas. Now, in a nation of 340 million persons, one might question whether law-by-anecdote is often helpful; whatever that case, it certainly serves no good purpose in Barnes. Our federal courts, after all, are limited to cases and controversies—thus, unlike the wonders of law school moot court in which every case somehow turns on a policy debate over something like “the dangers of traffic stops for police officers,” in the real world cases are supposed to bring with them facts about actual persons doing actual things. I do not diminish that there may have been tragedy in April of 2023 in Cameron, Wisconsin. Indeed, there may also have been such in December of 2024 in Terrell, Texas. But neither is of any moment in holding that the Fifth Circuit cannot consider only a single moment in Fourth Amendment analysis when the law requires consideration of totality.
But, seems to respond Justice Kavanaugh, you don’t get it. After all, “[f]leeing from [a] traffic stop could suggest that the driver is preparing to commit or has committed a more serious crime.”
Well, yes, but the matter here… “The driver may have illegal drugs or an illegal gun.”
Um, okay, but either way… “Or the driver may be unlawfully in the country.”
Uh, we just need to… “He might have a warrant out for his arrest.”
Again, the issue in this case… “He could have an abducted child in the car.”
Wait… what?!
“I could go on,” threatens Kavanaugh on page six. Sigh.
Sometimes, less is more. Our High Court could provide better example.
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