Death Before Breath: Courts Should Add De–Escalation and Proportionality to the Graham Factors

Authors

Nakyshia Fralin, Vermont Law School

Document Type

Article

Abstract

This paper examines Barnes v. Felix, a case recently before the Supreme Court, through a comparative analysis of various circuit courts’ applications of the Graham factors in use–of–force evaluations. Beginning with a historical overview of policing, the paper revisits the factual background of the case before delving into the Fifth Circuit’s analysis, known as the Moment–of–Threat doctrine. It then contrasts this approach with the broader “totality of the circumstances” approach, highlighting the differing judicial interpretations. Building upon these established frameworks, the paper proposes two additional factors aimed at promoting human life and safety. By introducing these elements, the analysis seeks to enhance the evaluative criteria used in excessive force determinations, offering a more comprehensive and protective standard for future judicial review.

Recommended Citation

Nakyshia Fralin, Death Before Breath: Courts Should Add De–Escalation and Proportionality to the Graham Factors, 16 U. MIA Race & Soc. Just. L. Rev. 1 (2025)
Available at: https://repository.law.miami.edu/umrsjlr/vol16/iss1/3