The Fifth Circuit’s “Moment of Threat” Doctrine: Are Two Seconds Enough Context to Justify Police Use of Deadly Force?

At 2:43 p.m. on April 28, 2016, on the Sam Houston Tollway in Texas, Harris County Deputy Constable Roberto Felix, Jr. lawfully stopped Ashtian Barnes, a 24-year-old Black man who was driving a car his girlfriend had rented, which had unpaid toll fees. When Officer Felix asked Barnes to step out of the car and opened the driver’s side door, with no drugs or weapons in his car, Barnes tried to pull away. Before he could even see inside the car, Officer Felix decided to stand on the door sill and, within two seconds, fired his gun into the car, twice. Due to Officer Felix’s deadly use of force, less than three minutes after being approached by Officer Felix, Ashtian Barnes was shot in the head and killed. The entire exchange was captured on Barnes’ dash cam.

The question in the case of Barnes v. Felix, set to be argued before the Supreme Court in January, is whether Officer Felix violated the Fourth Amendment’s protection against unreasonable seizure when he shot and killed Barnes. Specifically, the Court will review whether courts should apply the “moment of the threat” doctrine—which only considers the immediate window in which a police officer’s safety is threatened—when evaluating excessive force claims. 

Following his death, Barnes’ mother, Janice Hughes Barnes, filed a lawsuit alleging that Officer Felix’s use of force was unreasonable because, even if Barnes attempted to flee, he did not pose a threat that justified deadly force. However, the district court found that Barnes posed enough of a threat to Officer Felix in the moment the car started moving that his use of deadly force was reasonable and not excessive, granting him qualified immunity. On appeal, the Fifth Circuit affirmed the district court’s ruling, holding that the reasonableness—and therefore constitutionality—of a police seizure is determined solely by the “moment of the threat” to the officer. 

In other words, based on the standard used by the Fifth Circuit, the officer’s actions leading up to the moment of threat (namely, that he put himself in harm’s way by jumping onto the car) and the nature of the stop (that he fired at Barnes over unpaid toll fees) were irrelevant to the outcome. The only fact that could be considered was that Officer Felix—standing on the ledge of a moving car on a busy multi-lane freeway—was in danger in the two seconds in which he opened fire. In 2021, U.S. District Judge Alfred Bennett wrote that “[b]y limiting the focus of the judicial inquiry so narrowly as to only examine the precise moment the officer decided to use deadly force, the Fifth Circuit has effectively stifled a more robust examination of the Fourth Amendment's protections when it comes to encounters between the public and the police.” Judge Bennett himself ruled that Officer Felix’s decision to brandish his gun before the car was in motion—not shoot it—was reasonable. Lawyers for Officer Felix in this case argue that Barnes received a totality review by the District Court when Judge Bennett found his actions to be reasonable, but lawyers for Barnes argue, based on the precedent of Tennessee v. Garner, that “[t]here is a massive constitutional difference between unholstering a pistol and shooting someone.” 

In the 1985 case of Tennessee v. Garner, Edward Garner, a suspected burglar, was shot while fleeing the police. The Supreme Court ruled that use of deadly force by police is unconstitutional “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Like Garner, Barnes was unarmed and did not pose “a significant threat of death or serious physical injury” to anyone until Officer Felix jumped onto his car. Moreover, Barnes—unlike Garner—was not even suspected of an arrestable offense (unless one considers Officer Felix’s claim that he smelled marijuana; neither marijuana nor any kind of drug paraphernalia were found in Barnes’ car). 

Following up on Garner, in 1989 in Graham v. Connor, the Supreme Court’s decision held that judges should consider “the totality of the circumstances” in assessing whether a use of force is “objectively reasonable” under the Fourth Amendment, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Chief Justice Rehnquist, writing for the Court, was clear that “all claims that law enforcement officers have used excessive force—deadly or not” should “be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” 

Much more recently, in 2017, during the oral argument of the case County of Los Angeles v. Mendez, Justice Sotomayor explained that courts should “look at everything the officer and the victim did that led up to the moment of confrontation,” while Justice Alito clarified that “if an officer jumps in front of … a moving vehicle, you look at the entire seizure, the jumping in front of the car plus the ultimate shooting” in determining the reasonability of a seizure. 

By relying on its “moment of the threat” doctrine, the Fifth Circuit curtails the Supreme Court’s instruction in Graham to look to the “totality of the circumstances,” ignoring in the case of Barnes v. Felix Officer Felix’s role in causing the “threat” against his safety that led to the use of deadly force, even if his initial decision to brandish his weapon was reasonable. 

According to the lawyers for Barnes, the role of the Supreme Court in this case is also to settle a larger disagreement and divide between the Courts of Appeals that use the “moment of the threat” doctrine (the Second, Fourth, Fifth, and Eighth Circuits) and those that consider the “totality of the circumstances” (the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits). Considering the totality of the circumstances, Officer Felix’s decisions to jump onto a moving car, fire at, and kill Barnes over what was initially a traffic stop for someone else’s unpaid toll violations appear far more unreasonable than if one only considers the moment of threat—the two seconds between the time Officer Felix jumped onto the car and Barnes died. 

Another important consideration in this case is the asymmetrical number of amicus briefs—seven in total—all filed in support of Barnes’ case. The Cato Institute, the Law Enforcement Action Partnership, and the National Urban League jointly filed a brief urging the Court to grant certiorari based on the argument that the “moment of threat” doctrine undermines the original meaning of the Fourth Amendment, which was designed to protect human life and limit when deadly force can be used by government officials. Furthermore, the Cato Institute argues that the unnecessary use of deadly force undermines public confidence in the police, the Fifth Circuit’s standard makes policing more dangerous, and policing for profit plays a role in the injustice of not holding officers for violent traffic stops, especially when Houston constables directly stand to gain the proceeds of unpaid toll fees. 

Barnes’ mother’s lawyers argue that “[t]he threat that Officer Felix faced from the moving vehicle was the immediate consequence of his unreasonable act of jumping onto the car. Officer Felix should bear responsibility for the foreseeable result of his own actions.” However, under the then-existing doctrine of qualified immunity in Texas, Officer Felix likely will not face accountability for his actions, regardless whether a Fourth Amendment excessive force violation occurred in practice because the law was not clear on how police should conduct themselves in such instances. The Supreme Court ruled in Mullenix v. Luna that “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Fortunately, Barnes’ mother has also included the County in the lawsuit, which is not entitled to qualified immunity. Thus, the Fourth Amendment question of whether to use the “moment of the threat” doctrine or “the totality of the circumstances” standard in determining the reasonability of a seizure must be settled regardless of whether Officer Felix has qualified immunity. 

Cate Gutowski is a sophomore at Brown University studying English and Political Science. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at catherine_gutowski@brown.edu.

Simon Juknelis is a first-year concentrating in computer science and history. He is an editor for the Brown Undergraduate Law Review and can be reached at simonas_juknelis@brown.edu.