The Next Chapter of Police Accountability: How will States respond to Barnes v. Felix?

Source: Cato Institute

In 1985, the Supreme Court ruled in Tennessee v. Garner that deadly force by law enforcement is unconstitutional unless the suspect poses a “significant threat of death or serious physical injury.” In Graham v. Connor four years later, the Court established that excessive force claims must be judged under an “objective reasonableness” test that considers the totality of the circumstances, including the severity of the crime, the threat posed, and whether the suspect is resisting or fleeing.

In May, the Supreme Court issued a unanimous decision in Barnes v. Felix, striking down the Fifth Circuit’s restrictive “moment of threat” doctrine. They considered whether the police officer’s use of force violates the Fourth Amendment, finding that officers must assess the “totality of circumstances,” not just the split-second moment in which force was used. This doctrinal reset alters how federal courts evaluate excessive force claims and realigns circuit law with the guidance set by Graham and Tennessee v. Garner.

The Barnes opinion made clear that judges may not “put on chronological blinders” and confine their analysis to the precise moment when an officer pulled the trigger. Instead, the broader reasons for having the stop, the officer’s positioning, the commands given, and the suspect’s behavior belong in the analysis. However, the Court left unresolved cases in which the police officer’s actions create danger (so-called “officer-created jeopardy”). Should this factor weigh against police officers? That question will be litigated in the years ahead.

But even as Barnes reshapes the federal floor, it leaves open an important question: what role can states play in moving beyond the constitutional baseline? Because the federal Constitution sets only the minimum protections, states are free to adopt more restrictive standards governing police force. In fact, many already have. Thus, the next chapter of police accountability may be written not in Washington, D.C., but in statehouses across the country.

States Beyond the Totality Approach

California, for example, provides the clearest example of a state using its legislative power to go beyond the federal floor. In 2019, the legislature passed AB 392, which amended Penal Code §835a to state:

“A peace officer is justified in using deadly force… only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.”

By embedding “necessity” into the statute, California raises the bar above the federal standard of “reasonableness.” Officers must not only show that their belief of threat was reasonable but also that no less-lethal alternative would suffice. Training bulletins across the state now emphasize de-escalation and avoidance of lethal force whenever possible. 

Washington’s reforms, enacted in 2021, similarly go further than the federal baseline. Under RCW 10.120.020:

“A peace officer shall use reasonable care when determining whether to use physical force or deadly force… [and] shall use all de-escalation tactics… before using physical force.”

This language places affirmative duties on officers not only to avoid unnecessary force, but also to actively pursue de-escalation. The statute reframes deadly force as a last resort, a potential response to community efforts for reform following high-profile use-of-force controversies in the state like Colorado’s SB20-217, passed in the wake of George Floyd’s death, which reshaped state standards by mandating:

“Peace officers… shall apply nonviolent means, when possible, before resorting to the use of physical force.”

Colorado’s statute also bans chokeholds, imposes a duty to intervene, and establishes reporting obligations. Here again, the emphasis is on necessity and the order in which officers must attempt nonviolent means before escalating. Lethal force is permissible only after other options prove ineffective or infeasible.

Maryland’s 2021 reforms write proportionality directly into law. Public Safety §3-524 provides:

“A police officer may not use force… unless, under the totality of the circumstances, the force is necessary and proportional…”

By pairing necessity with proportionality, Maryland echoes international human rights standards such as the U.N. Basic Principles on the Use of Force and Firearms, which stress necessity, proportionality, and precaution. It is a reminder that state legislatures can move doctrine closer to global norms even when federal law lags.

States that Haven’t Moved

Not every state has acted. Texas, Florida, and others still primarily rely on the federal baseline of “objective reasonableness.” New York’s statute (Penal Law §35.30) permits police to use deadly force in effecting arrests under conditions that track federal law but do not impose additional requirements of necessity or proportionality. In these states, Barnes itself is the reform. By rejecting “moment-of-threat,” the Supreme Court raised the constitutional floor, but local law does little more.

These states show the uneven geography of police accountability. In one jurisdiction, a jury might evaluate an officer’s actions under a necessity standard; in another, only federal “reasonableness” applies. That divergence is precisely where federalism – the division of power between national and state governments –  appears most clearly. 

Why State Innovation Matters After Barnes

If the story of Barnes v. Felix is about restoring totality at the federal level, the story of state reform is about defining what totality means in practice. Federal courts may now consider a more comprehensive timeline, but states can hard-code duties to de-escalate, requirements of necessity, or proportionality into their statutes. They can shape police training, certification, and oversight accordingly. In short, states can translate constitutional minimums into operational rules.

The cross-state diversity also opens space for experimentation. California’s “necessity” standard may evolve differently than Washington’s “reasonable care” duty or Colorado’s “nonviolent means” requirement. Maryland’s proportionality language may become a model for future reformers. Federalism allows for this variety — and allows courts, policymakers, and communities to observe which frameworks best balance officer safety with constitutional protections.

Barnes v. Felix resolved a critical doctrinal divide: no longer may courts look only at the split-second when force was used. But the decision did not end the debate over how force should be evaluated, limited, and regulated. That debate is now moving into the states. Some have already stepped beyond the federal floor, embedding necessity, proportionality, and de-escalation into their statutes. Others have not yet acted, leaving Barnes as the primary check.

The future of police accountability will be written not just by the Supreme Court, but by fifty different legislatures. In that sense, Barnes is not the end of the story — it is the invitation to the next chapter.

Connor Swenson is a junior concentrating in Political Science. He is a writer for the Brown Undergraduate Law Review and can be contacted at connor_swenson@brown.edu.

Aidan Fogarty is a sophomore concentrating in International and Public Affairs. He is a staff editor for the Brown Undergraduate Law Review and can be contacted at aidan_fogarty@brown.edu.

Priyanka Nambiar is a sophomore concentrating in Cognitive Neuroscience. She is a blog editor for the Brown Undergraduate Law Review and can be contacted at priyanka_nambiar@brown.edu.