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- SCOTUS: Barnes v. Felix: The “totality of circumstances” in excessive force cases includes the entire encounter, not just the moments before force was used
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
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online since Feb. 24, 2003 Approx. 500,000 visits (non-robot) since 2012 Approx. 47,000 posts since 2003 (30,000+ on WordPress as of 12/31/24) -
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—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)). -
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984). -
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961). -
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987). -
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). -
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765) -
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) -
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). -
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987) -
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967) -
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) -
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
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"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards, Let it Bleed (album, 1969) -
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp] -
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
---Pepé Le Pew -
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Excessive force
SCOTUS: Barnes v. Felix: The “totality of circumstances” in excessive force cases includes the entire encounter, not just the moments before force was used
The “totality of circumstances” in excessive force cases includes the entire encounter, not just the moments before force was used. Barnes v. Felix, 2025 U.S. LEXIS 1834 (May 15, 2025) (SCOTUSBlog). From the Syllabus:
CA7: Skeletal 4A claim doesn’t support relief
A caution about pleading in a § 1983 Fourth Amendment case: Plaintiff loses because of his skeletal claims in the complaint. “We express no opinion on whether the officers needed to handcuff Petersen, transport him in a police vehicle to … Continue reading
CA11: Punching subdued arrestee showed excessive force
Punching an arrestee in the head after he was subdued overcame qualified immunity. Jones v. Ceinski, 2025 U.S. App. LEXIS 11181 (11th Cir. May 8, 2025).* “In this case, undisputed facts support the conclusion that the officers used reasonable force … Continue reading
W.D.Mo.: Use of stop sticks was a seizure
The use of stop sticks was a seizure, but here it was justified. United States v. Jordan, 2025 U.S. Dist. LEXIS 86127 (W.D. Mo. Apr. 4, 2025).* There was nexus for defendant’s place, and the Franks claim isn’t material. United … Continue reading
CA4: Where materiality fails under Franks, falsity doesn’t matter
The district court concluded that there was no false statement for Franks purposes, but that doesn’t even have to be decided. It certainly wasn’t material. Hedgepeth v. Nash Cty., 2025 U.S. App. LEXIS 10868 (4th Cir. May 6, 2025).* It … Continue reading
CA9: No REP in data in planted GPS device
Downloading data from a planted GPS device violated no reasonable expectation of privacy. McNeely v. Loeschner, 2025 U.S. App. LEXIS 9537 (9th Cir. Apr. 22, 2025). The facts of the planted device are below: McNeely v. City of Sparks, 2024 … Continue reading
M.D.Fla.: In civil rights prosecution, 4A training information admitted for willfulness, not to prove a constitutional violation
In an excessive force civil rights prosecution, evidence of training on use of force was relevant and, here, admitted for a limited purpose. “So Martin’s testimony was relevant to willfulness, and the Court’s instructions—instructions Defendant and the Government jointly proposed—made … Continue reading
CA11: Good Samaritan with a gun near a shooting was not unconstitutionally shot by police
Plaintiff’s decedent was in a shopping mall lawfully carrying a gun. When a shooting occurred, he drew his weapon and advanced to provide assistance. An officer on patrol in the mall saw him with the gun moving toward a man … Continue reading
N.D.N.Y.: No REP in workplace computer
Plaintiff had no reasonable expectation of privacy in his workplace computer. Zennamo v. Cty. of Oneida, 2025 U.S. Dist. LEXIS 66916 (N.D.N.Y. Mar. 18, 2025). One officer accidentally shooting another when using deadly force against a civilian was not an … Continue reading
D.Kan.: § 1983 complaint questions state conviction and is barred by Heck
Plaintiff’s 242 paragraph § 1983 complaint calls into question his criminal conviction, so it’s barred by Heck. Turner v. Kansas Court of Appeals, 2025 U.S. Dist. LEXIS 55052 (D. Kan. Mar. 25, 2025).* “Here, Plaintiff’s Fourth Amendment unlawful imprisonment and … Continue reading
CA9: No QI for nearly destroying a house in a search for a person to arrest
Summary judgment and qualified immunity were properly denied where officers searching for someone other than the plaintiff in plaintiff’s house [apparently] gratuitously nearly destroyed it, breaking all windows, toilets, leaving water running in the house, appliances, furniture, and a car … Continue reading
D.D.C.: BLM 1A speech restriction claim can proceed as a class action
A class claim for the June 2020 Lafayette Square BLM protest is certified for the First Amendment speech restriction claims but not the retaliation claims because they do not satisfy commonality under Rule 23(a). Damages claims can be pursued separately. … Continue reading
CA8: Dog sniff at apt door was reasonable under existing precedent
A drug dog sniff at defendant’s apartment door was reasonable under well-established circuit precedent. There’s no evidence the dog’s nose went under the door. United States v. Peck, 2025 U.S. App. LEXIS 5710 (8th Cir. Mar. 12, 2025). Plaintiff’s condition … Continue reading
OR: Petr’s post-conviction 4A denied for lack of specifics and context
Defendant’s post-conviction Fourth Amendment claim was properly denied for not telling the court what evidence was improperly admitted, where it appears in the record, and how it affected the outcome. Zyst v. Kelly, 338 Or App 597 (Mar. 12, 2025). … Continue reading
CrimProf Blog: A Hidden Seizure Issue in Barnes v. Felix
CrimProf Blog: A Hidden Seizure Issue in Barnes v. Felix by Michael J.Z. Mannheimer:
OR: Cell phone warrant was sufficiently particular to prevent a general rummaging
For this cell phone search, “As explained above, however, the first and fourth search categories are sufficiently specific, and defendant conceded below that the third category is sufficiently specific. Further, the sixth category’s command to search for location information—as circumscribed … Continue reading
TN: That officer can’t tell difference between hemp and marijuana doesn’t mean there wasn’t PC from plain smell
The fact the officer can’t tell the difference between hemp and marijuana doesn’t mean there wasn’t probable cause by plain smell. The stop was justified by the community caretaking function because he was asleep at an intersection. State v. Jones, … Continue reading
CA9: Use of Taser in dart-mode wasn’t excessive force because it was justified
“An officer’s use of a Taser in dart-mode ‘constitute[s] an intermediate, significant level of force.’ … But under the Graham factors, Officer Swindling’s brief Taser use was justified under the circumstances. First, Sharif had assaulted his daughter’s mother; stolen a … Continue reading
TN: Ptf’s actions at DV call justified officers’ greater force
The totality of the circumstances, including the nature of the domestic violence call, appellant’s armed presence near the scene, his rapid movement towards the officers while armed, and the short timeframe, made the officers’ use of deadly force objectively reasonable … Continue reading