Use of force, moment of threat, and totality of circumstances

Everyone hates paperwork. Especially police.

It’s time consuming. It’s boring. It’s exhausting after a long day of substantive law enforcement. Often it goes unnoticed. It seems … redundant in an age of body and car cams.

I get it.

Pay close attention to it and do it right anyway.

The Supreme Court just reminded us why documentation is so important.

In Barnes v. Felix, 605 U.S. ___, (2025), the Court rejected the lower courts rulings for a police officer that relied on the “moment of threat” rule, which basically says that the only relevant consideration for evaluating an officer’s use of force decision is whether the officer was in danger at the moment of the threat that resulted in use of deadly force.

The Court instead held that the proper evaluation is done according to the totality of the circumstances, and that such an evaluation is therefore not limited in time or scope. Although in this case it calls to question a court decision that favored the officer, more often than not this ruling will be friendly to officers.

IF they document the totality of the circumstances…

In this case, an officer shot and killed a driver who attempted to drive away after a car stop for unpaid tolls. The officer stepped into the doorsill as the car was moving and fired 2 shots. The lower courts found for the defendant officers in a 1983 suit using the “moment of threat” doctrine.

The Supreme Court? “Not so fast, my friends.” Courts must take into account everything – all the circumstances that led to the use of force.

How does this relate to paperwork and report writing?

Incredibly, I’ve heard on more than a few occasions during my career that some police officers have been told to write as little as possible because “it gives a defense lawyer nothing to cross-examine you with.”

That is absurd. And stupid.

And many officers think that report writing is superfluous in an age of body cams.

They couldn’t be more wrong.

Cameras don’t pick up everything. Cameras don’t record past experience or things an officer knows about that happened outside her presence. Cameras don’t turn to follow the officer’s head and eyes. Cameras don’t reflect his concerns or share his training and experience.

Officers who document everything they saw and narrate their concerns as events unfolded protect themselves.

Articulate it. Immediately. Explain why you did what you did. Narrate for your body cam if possible. Put it in your report in more than a conclusory fashion. Don’t just say things like, “he looked suspicious.” Explain it. Make the case file heavy for the prosecutor to carry around…

It might save your career.

If you and your department/agency want more career-saving training on legal and practical issues in policing, contact @neffstrategiesconsultinggroup, a company embedded with trainers who collectively have hundreds of years of law enforcement and prosecutorial experience.