Good Grief

The Supreme Court tells us why the defense of a fatal ICE shooting is nonsense

A law enforcement officer approached a car and ordered the driver out. Instead of complying, the driver started to pull away. The officer, after trying to stop the car and perhaps afraid of serious injury or worse, fired multiple shots inside. The car kept moving, but the driver soon died.

Sound familiar?

The place was Houston, not Minneapolis, and the officer was a county cop, not an ICE agent. But the facts of the case are remarkably similar to Wednesday’s fatal shooting of 37-year-old Renee Nicole Good. And in that earlier case, decided unanimously only eight months ago, the U.S. Supreme Court said it was far from clear that the county police officer had acted reasonably in gunning down the driver.

Recognizing that there’s still a lot we don’t know and all that, if the killing of Renee Good ends up in court, as it surely will, last year’s Supreme Court decision should prompt two words to pop into the ICE agent’s head: Uh oh.

First, a little background. The Constitution’s Fourth Amendment protects people against unreasonable searches and seizures, and a police shooting being considered a “seizure,” it violates the Constitution if not “objectively reasonable.” What’s reasonable is a judgment call, and courts are required to make that call by assessing “the totality of the circumstances.”

In 2016, Harris County Deputy Constable Roberto Felix Jr. was patrolling a Texas highway when he spotted a car with a record of unpaid tolls. He flashed his lights and the car, a rental driven by Ashtian Barnes, pulled over. After some pointed chitchat, Felix, his hand on his gun, ordered Barnes out of the car. Barnes opened the door, but instead of getting out, he started to drive away, and Felix jumped on the doorsill, pulled his gun, and shot Barnes dead.

Barnes’ mother sued Felix for violating her son’s Fourth Amendment rights. The federal trial court acknowledged its obligation to determine whether the shooting was reasonable, but it explained that when deadly force is involved, considering the “totality of the circumstances” means focusing on the situation “at the moment” the officer feels threatened – in this case, the two seconds after Felix perched on the car doorsill – nothing before or after. Surely, at that moment, Barnes could have reasonably believed he was a goner, so the judge tossed the case, and the appeals court – which had come up with this odd rule years before – upheld the decision.

The Supreme Court would have none of it. Totality of the circumstances “has no time limit,” Justice Elana Kagan wrote for the court. “While the situation at the precise time of the shooting will often matter most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”

This seems pretty obvious, but it’s not hard to see why the two lower courts narrowed the test. They’re based in perhaps the most conservative, tough-on-crime areas of the country – Mississippi, Louisiana, Texas – and focusing on the most perilous moment makes it easier to argue that the cop justifiably fought for his life, especially during a traffic stop, which Justice Brett Kavanaugh pointed out in a concurring opinion is “fraught with dangers to the police officer.”

In any event, the justices ordered the lower courts to try again while applying the broader test. Will it make a difference? There’s reason to believe it will – in this case as well as in the Minneapolis debacle.

The broader test allows for all sorts of excellent questions. In the Texas case, how frightened could Felix have been of a guy suspected of not paying tolls, a guy who quickly pulled over and generally cooperated? He wasn’t, say, a suspected murderer leading a 100-mph car chase. More important, what the heck was Felix thinking, leaping onto the doorsill of a moving car? Of course he was in danger – he put himself in danger. That seriously undermines any justification for deadly force. How about stepping off rather than shooting the guy dead?

In the Minneapolis case, the ICE agent seems on even weaker ground. Assuming he and his fellow masked men had good reason to stop Good and order her out of the car, assuming they were there to enforce the law rather than to provoke, assuming he was actually standing in front of Good’s car as it started to move – all assumptions contradicted to varying degrees by multiple videos of the scene – why did the agent put himself in so much danger that he felt compelled to kill Good? Even Justice Department policy says that’s a dumb idea.

Where all this can go legally is unclear. There are a host of serious obstacles to any lawsuit or prosecution against the ICE agent – not the least of which is the Trump administration’s alarming but predictable effort to protect him and block any investigation of the tragedy.

Whether in a court of law or in public debate, however, Daniel Patrick Moynihan’s admonition holds true: We’re entitled to our opinions, but not to our own facts. Even this Supreme Court, as deferential as any to a president’s point of view, has told us so.