The case of Barnes v. Felix raises a significant legal question that could impact law enforcement officers nationwide. The U.S. Supreme Court has agreed to hear this case, which challenges the “moment of threat” doctrine, a legal framework used by some courts to assess the reasonableness of an officer’s use of force. The doctrine has sparked controversy, as critics argue it gives officers too much discretion and does not adequately consider the totality of the circumstances surrounding an incident. This article aims to provide law enforcement leaders and officers with a clear understanding of the case, the issues involved and the potential implications of the Supreme Court’s decision.
The Facts of Barnes v. Felix
In April 2016, Harris County (Texas) Constable Deputy Roberto Felix Jr. initiated a traffic stop on Ashtian Barnes for driving a vehicle with outstanding toll violations. During the stop, a confrontation occurred, which ultimately led Officer Felix to shoot and kill Barnes. The events leading up to the shooting were recorded by the dash cam footage from the patrol vehicle, and this footage was referenced by both the district court and the 5th Circuit.
Officer Felix approached the driver’s side window and requested Barnes’ paperwork. Barnes replied he did not have the requested documentation and mentioned that the car had been rented previously by his girlfriend. The officer observed Barnes “digging around” inside the car and instructed him to stop. Noticing the smell of marijuana, Officer Felix asked Barnes if there was anything in the car he should be aware of. Barnes indicated the documents might be in the trunk, and Officer Felix asked him to open it, which Barnes did from inside the car. Barnes then turned off the vehicle and placed his keys near the shifter. When Officer Felix ordered Barnes to exit the vehicle, he did not comply; instead, he turned the car back on. In response, the officer drew his weapon.
Things escalated quickly. Officer Felix pointed his weapon at Barnes and shouted, “Don’t f***ing move,” as the car began to move. At that point, Officer Felix stepped into the car and appeared to press his gun against the side of Barnes’ head. While the car was in motion, Officer Felix fired his weapon, with his head positioned outside and above the roof of the car. The shots struck Barnes, who died at the scene.
The Barnes family argued Officer Felix escalated the situation unnecessarily. They allege that the officer’s actions — drawing his weapon and jumping onto the moving vehicle — created the very danger he then used to justify the shooting.
The 5th Circuit’s holding
The 5th Circuit Court of Appeals upheld the district court’s decision to grant summary judgment in favor of Officer Felix and Harris County, applying its “moment of threat” doctrine. The court concluded that at the moment Officer Felix fired his weapon, Barnes’ vehicle was in motion, and Officer Felix could have reasonably feared for his life. The court chose not to consider the events leading up to that moment, including Officer Felix’s decision to draw his weapon or to jump into the vehicle.
Circuit Judge Higginbotham wrote a concurring opinion in which he expressed concerns about the “moment of threat” doctrine. He argued that the 5th Circuit’s ruling and its established precedent effectively narrowed the reasonableness inquiry of the Fourth Amendment. The focus was solely on the moment when the officer perceived a threat, neglecting the Supreme Court’s requirement to analyze the totality of circumstances when evaluating an officer’s use of deadly force. His concurring opinion, which underscored the discrepancies among the circuits, ultimately brought the case to the Supreme Court.
The moment of threat doctrine: A circuit split
The “moment of threat” doctrine has become a focal point in legal discussions concerning excessive force and the Fourth Amendment. The 5th Circuit and the 2nd, 4th and 8th Circuits follow this doctrine, which limits the review of an officer’s use of force to the precise moment when the officer perceives a threat to their safety or the safety of others. Under this approach, the court does not consider the officer’s actions leading up to the moment of threat, even if those actions may have contributed to the escalation of the situation.
The remaining eight circuits — the 1st, 3rd, 6th, 7th, 9th, 10th, 11th and D.C. Circuits — reject the moment of threat doctrine and instead apply a “totality of the circumstances” standard. This approach examines all relevant factors surrounding the use of force, including the officer’s actions preceding the moment of threat. The rationale behind this broader approach is that it provides a more comprehensive and accurate assessment of the reasonableness of an officer’s actions, considering the dynamic nature of police encounters and the potential for officer conduct to contribute to dangerous situations.
Important note: Lexipol’s use of force policy guidance, regardless of jurisdiction, is written to emphasize the totality of the circumstances when determining the reasonableness of force.
The question before the Supreme Court
Although Officer Felix’s opposing brief sought to convince the Supreme Court that the moment of threat doctrine is consistent with Court precedent and doesn’t warrant review, the Court rejected this view and agreed to hear Barnes v. Felix to address whether courts should apply the moment of threat doctrine when evaluating an excessive force claim under the Fourth Amendment. This question gets to the heart of the circuit split and requires the Court to determine the appropriate scope of review for Fourth Amendment excessive force claims.
The briefs submitted by the parties and numerous amici curiae in the case of Barnes v. Felix provide insights into the moment of threat doctrine and its influence on Fourth Amendment jurisprudence.
Arguments against the moment of threat doctrine include the following points:
- Conflict with Graham v. Connor: Opponents argue this doctrine directly contradicts the Supreme Court’s ruling in Graham v. Connor, which requires a “totality of the circumstances” analysis for assessing the reasonableness of force. They contend that the moment of threat doctrine unduly narrows the review process and fails to consider the complex and dynamic nature of police encounters.
- Erosion of accountability: Critics assert the doctrine weakens accountability for officer misconduct. They argue that excluding pre-seizure conduct from the reasonableness analysis creates a legal loophole that shields officers from scrutiny, even when their actions may escalate a situation.
- Undermining public trust: The briefs emphasize that the moment of threat doctrine damages public trust in law enforcement. They argue this narrow approach fosters the perception that officers are not held to a fair and just standard, especially in cases where an officer’s actions may have contributed to the perception of a threat.
While more scarce, arguments in favor of the moment of threat doctrine emphasize that evaluating the totality of the circumstances — particularly pre-seizure conduct — can place an undue burden on officers and expose them to unfair hindsight judgments. In this view, the moment of threat doctrine is the critical point for assessing an officer’s use of force; during this moment, officers must make split-second decisions to protect themselves and others. Therefore, proponents argue, an officer’s actions should be evaluated based on the information available at that precise instant.
Potential outcomes
The Supreme Court’s decision in Barnes v. Felix may have far-reaching consequences for law enforcement practices and policies. This, however, will depend upon how the Supreme Court chooses to handle the case.
As mentioned previously, Officer Felix’s brief argues that the moment of threat doctrine is entirely consistent with Supreme Court precedent. However, Felix may choose to follow a different line of argument. For instance, he may argue that even if the Court were to review the totality of the circumstances and find a Fourth Amendment violation, he is entitled to qualified immunity because his actions did not violate any clearly established law at the time of the incident.
Alternatively, Felix could argue that it was Barnes, not Felix, who escalated the situation by restarting his car and attempting to flee after Felix had ordered him to exit the vehicle. And that in turn put Felix in immediate danger of being run over or dragged by the car, leading him to jump onto the door sill.
While it is theoretically possible, it seems unlikely the Supreme Court will bypass the central issue of the moment of threat doctrine and grant Officer Felix qualified immunity based on one or more of the arguments presented. The Court granted certiorari in Barnes v. Felix specifically to address the disagreement among circuit courts regarding the application of the moment of threat doctrine. This indicates a strong interest in providing clarity on this particular legal issue. If the Court were to skip over the issue and simply grant qualified immunity, it would leave the circuit split unresolved.
While Felix may still receive qualified immunity, the best outcome in terms of providing direction for law enforcement is for the Court to conduct a thorough analysis of the issue and provide clear guidance on what is expected. However, there is also a risk of a plurality decision, in which a majority of justices agree on the final outcome of the case but disagree on the reasoning. This scenario would effectively return us to the current state of uncertainty.
Potential impact on law enforcement
Does the “totality of the circumstances” approach mean courts should focus solely on what an officer reasonably believed at the moment a threat was perceived, based on all the information available to them? Or should it also take into account all the circumstances, including the choices and actions taken by the officer prior to that moment? The implications of human performance factors in such cases are significant, making it essential for the Supreme Court to provide clear guidance on how the objective reasonableness standard should be applied. This is particularly important in situations where officers do not have the luxury of discretionary time and must respond to the actions of others.
Consider this scenario to illustrate the relevant issues: Imagine you are driving down the road when suddenly a car pulls out of a parking lot directly in your path. You are traveling at the speed limit, and there isn’t enough time or distance for you to think about what to do. Instead, you react instinctively and slam on your brakes. Unfortunately, you still collide with the other vehicle because there simply wasn’t enough time to stop and prevent the accident.
After the incident, it becomes clear that if you had turned your wheel sharply to the right, you could have safely navigated onto a flat grassy area and into an empty parking lot. This solution seems simple and obvious in hindsight, but why didn’t you do it? The answer is that you could only react instinctively, rather than think through your options.
Now, imagine if you were held responsible for the damage and injuries to the occupants of the other vehicle. To put this in perspective as the holidays approach, you had to make this decision in about the same time it takes to click “confirm your purchase” on an online shopping site, highlighting the swift nature of the situation.
When watching the dash cam video in the Barnes case, it’s easy to sit in a comfortable chair and wonder, “What was this officer thinking?” Officer Felix stands at the open door of the car and gives Barnes a lawful command to exit the vehicle. Instead of complying, Barnes starts the car, and it begins to move.
At this point, Officer Felix steps onto the door sill. This is where we need to focus, on that critical moment in time — the “confirm your purchase” moment. Because that moment is everything. Once a reaction occurs in such a situation, it’s already too late; the decision has been made.
It’s challenging to suppress hindsight, but doing so is crucial in assessing cases like this one. For example, anyone watching the video now can see that the car moved forward and that Officer Felix could have safely stepped back and away. However, in that split second when he jumped onto the door sill, did he consciously and cognitively realize which way the car was moving? Or did an innate emergency response kick in, preventing him from fully assessing the risk?
Why do certain reactions occur, especially when, in hindsight, they seem ill-advised? Two types of conflict can arise when someone faces competing demands. The first is called response conflict, which occurs when an instinctive, automatic reaction to protect oneself clashes with professional training or legal obligations that necessitate a controlled and proportional response. The second type is goal conflict, which involves trying to balance personal safety with professional responsibilities, such as detaining or arresting individuals. Both conflicts require rapid judgment in high-stress situations with limited time, making it even more difficult to make the “right” decision.
Are there situations in which officers have discretionary time but fail to use it wisely, resulting in tragic consequences? Yes, there are many such cases, often referred to as “lawful but awful” incidents. A common factor in these cases is that officers act much more quickly than circumstances require, sometimes leading to tragedies that could have been avoided. Yet there are also times when officers simply do not have the discretionary time and must act.
So, can the Supreme Court craft a constitutional standard that effectively addresses both situations where officers have discretionary time, but their pre-force choices arguably lead to the need for a split-second decision and those where split-second decisions are unavoidable and required? Achieving this will be very challenging. The underlying disparities and variety of incidents may be what led some courts to adopt the “moment of threat” doctrine in the first place.
Conclusion
Barnes v. Felix is a significant case that could influence the legal framework governing the use of force by law enforcement officers. The Supreme Court’s decision to examine the “moment of threat” doctrine highlights the importance of this issue and its effects on both law enforcement and the communities they serve. Ideally, the Court will address it thoroughly and provide meaningful guidance that can inform law enforcement policy and training. Regardless of the outcome, our team at Lexipol will be prepared to review the decision, assess whether any policy updates are necessary and provide them to agencies that subscribe to our policy management solution.
Notes
1. 91 F.4th 393 (5th Circuit, 2024), certiorari granted 2024 WL 4394125 (2024)
2. Officer Felix cites several Supreme Court cases, including City and County of San Francisco, Calif. v. Sheehan (575 U.S. 600 (2015)); County of Los Angeles, Ca. v. Mendez (581 U.S. 420 (2017)); City of Tahlequah v. Bond (595 U.S. 9 (2021)); Brosseau v. Haugen (543 U.S. 194 (2004)); Scott v. Harris (550 U.S. 372 (2007)); and Plumhoff v. Rickard (550 U.S. 372 (2007)) to support this argument.
3. This is a Latin phrase that means “friend of the court.” An amicus brief is one filed by a person or organization that is not a party to the case but has an interest in the outcome. A court may or may not choose to consider such a brief.
4. There is a legal doctrine called the “last clear chance” in negligence cases. Even if the plaintiff was negligent in connection with an accident, they can still recover damages if the defendant could have avoided the accident altogether by the exercise of ordinary care and reasonable prudence. Key to a successful claim, however, would be that the defendant had a reasonable opportunity to avoid the accident or injury.
