I. INTRODUCTION
A routine traffic stop in Texas in 2016 ended with the death of an unarmed Black man. Now, the U.S. Supreme Court is reviewing Barnes v. Felix, a case that questions how courts should assess police use of force. When an officer uses deadly force, should the courts focus only on the exact moment an officer perceives a threat, or should they examine everything leading up to the incident?
The “moment of threat” approach benefits police officers because it isolates the second force is used without considering whether the officer’s actions contributed to the escalation. On the other hand, the “totality of circumstances” approach looks at the broader situation, potentially offering more protection to civilians by considering whether the officer acted reasonably throughout the encounter. The Supreme Court’s decision in Barnes v. Felix could shape the future of police accountability.
Currently, when someone dies due to excessive force, their family can file a claim under 42 U.S.C § 1983, which allows lawsuits against officers or municipalities for constitutional violations that directly resulted in death. In cases like Barnes v. Felix, the central issue is whether an officer’s use of deadly force was an “unreasonable seizure” under the Fourth Amendment. Supreme Court rulings in cases like Tennessee v. Garner¹ and Graham v. Connor² have historically emphasized the “totality of circumstances” approach, but some courts, including the Fifth Circuit, have shifted toward analyzing only the “moment of the threat” when an officer’s use of deadly force is at issue.
II. BACKGROUND – THE LAW ON POLICE USE OF FORCE
In Tennessee v. Garner, the Supreme Court ruled that deadly force cannot be used just because a suspect is fleeing. Instead, officers must assess whether the suspect poses a real threat. This case set the precedent that force must be judged based on the entire situation (i.e., totality of the circumstances), not just a single moment.
However, some courts, including the Fifth Circuit, have started applying a narrower standard when an officer’s use of deadly force is at issue, looking only at whether the officer felt threatened at the exact moment they fired their weapon. This contradicts past Supreme Court rulings, which stress that force should be analyzed in context.
III. THE DEBATE OVER DIFFERENT STANDARDS
A. The “Moment of Threat” Standard.
This approach assesses an officer’s use of force only at the second they decide to act and exert deadly force. It favors police officers because it allows them to justify force based purely on their immediate perception of danger. However, this standard is problematic because it ignores whether the officer’s own behavior escalated the situation. For example, if an officer behaves aggressively or unreasonably before using force, that conduct is not considered. Many critics argue this unfairly protects officers from accountability while shifting the blame onto civilians.
B. The “Totality of Circumstances” Standard.
This approach evaluates an officer’s actions leading up to the use of deadly force. It asks whether the officer’s behavior contributed to the escalation and whether the force used was truly necessary. Although some argue this could make officers hesitant to act in dangerous situations, the reality is that only reckless or clearly excessive force would lead to liability. This standard aligns with well-established Supreme Court precedent and provides a more balanced assessment of police conduct
IV. THE CASE OF BARNES v. FELIX
A. The Facts.
In 2016, Officer Roberto Felix stopped Ashtian Barnes on a Texas tollway³. During the stop, Felix believed he smelt marijuana, prompting him to place his hand on his gun and ask Barnes to step out of the vehicle⁴. When Barnes’ car began moving forward, Felix jumped onto the door still – though it remains unclear whether this happened before or after the vehicle had already started accelerating⁵. Within seconds, he fired his weapon, killing Barnes⁶. Felix later admitted he could not see where he was shooting⁷.
A grand jury decided not to charge Felix, and an internal investigation found no wrongdoing. Barnes’ family sued under the Texas Tort Claims Act and 42 U.S.C §1983 arguing that Felix violated Barnes’ Fourth Amendment rights by using excessive force⁸. For purposes of this blog, the merits of the 42 U.S.C §1983 claim are primarily at issue. Both the district court⁹ and the Fifth Circuit Court of Appeals¹⁰ ruled in Felix’s favor, applying the “moment of threat” standard to access the reasonableness of the deadly force, and ignoring Felix actions leading up to the shooting.
Judge Higginbotham authored the Court of Appeals’ majority opinion, in which he effectively concluded that the moment of threat approach precludes any finding of a Fourth Amendment violation and corresponding liability. Notably, he then took the extraordinary step of concurring in his own opinion to underscore his view that the other approach is wrong. He emphasized that eight circuits have rejected this approach and urged the United States Supreme Court to overturn it.¹¹
V. STATUS UPDATE & PROPOSED HYBRID APPROACH
The United States Supreme Court is currently reviewing Barnes v. Felix. For many of the reasons discussed in this blog post, a majority of circuits, legal scholars, and we contend that the narrow moment of threat approach is inconsistent with Supreme Court precedent, which has long emphasized the reasonableness of a seizure under the Fourth Amendment must be assessed based on the totality of the circumstances. If the Court declines to reject the moment of threat approach, it will do a profound disservice to the greater good by prioritizing excessive protections for law enforcement at the expense of civilian rights and safety.
However, instead of choosing between the moment of threat and totality of circumstances approaches, the Supreme Court could adopt a hybrid method with three steps. First: Did the officer unreasonably escalate the situation? Courts should first determine whether the officer’s prior actions were reckless or contributed to the threat. Second: Even if an officer made mistakes beforehand, the court should still analyze whether using deadly force was justified in that instant. Third: A sliding scale of justification based on circumstances. If an officer recklessly created a dangerous situation, the justification for deadly force should be scrutinized more strictly. However, if the officer was reacting to an immediate and unforeseeable threat, they should receive more deference.
This hybrid approach strikes a balance, ensuring officers are not punished for responding to legitimate threats while still holding them accountable if they needlessly escalate encounters. It maintains the need for quick decision-making in dangerous situations but also recognizes that reckless policing should not be ignored.
VI. CONCLUSION
The Supreme Court’s decision in Barnes v. Felix is crucial not only for police accountability but also for broader constitutional protections. If the Court upholds the “moment of threat” standard, it could make it even harder to hold officers accountable for excessive force. However, if it reinforces the “totality of circumstances” standard or adopts a hybrid approach, it could create a fairer system that protects both civilians and responsible police officers.
As this case unfolds, the American public should pay close attention. The ruling could redefine the legal landscape of police use of force and set the stage for future cases on civil rights and law enforcement accountability.
[¹] 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). [²] 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). [³] Barnes v. Felix, 532 F. Supp. 3d 463, 466 (S.D. Tex. 2021), aff’d, 91 F. 4th 393 (5th Cir. 2024). [⁴] Id. [⁵] Id. [⁶] Id. [⁷] Id.at 467. [⁸] Id. [⁹] Barnes v. Felix, 532 F. Supp. 3d 463 (S.D. Tex. 2021), aff’d, 91 F. 4th 393 (5th Cir. 2024). [¹⁰] Barnes v. Felix, 91 F. 4th 393 (5th Cir. 2024), cert. granted, No. 23-1239, 2024 WL 4394125 (U.S. Oct. 4, 2024). [¹¹] Barnes v. Felix, 91 F. 4th 393, 405 (5th Cir. 2024) (Higginbotham, J., concurring).
