On January 23, 2024, the Fifth Circuit Court of Appeals decided Barnes v. Felix[i], in which the court examined whether an officer, who was standing on the floorboard of the fleeing vehicle, violated the Fourth Amendment when he shot the fleeing driver. The relevant facts of Barnes are as follows:
Officer Roberto Felix, Jr. fatally shot Ashtian Barnes on April 28, 2016, following a lawful traffic stop. The facts leading up to the shooting are undisputed. At about 2:40 p.m., Officer Felix heard a radio broadcast from the Harris County Toll Road Authority giving the license plate number of a vehicle on the highway with outstanding toll violations. Spotting a Toyota Corolla with the matching plate on the Tollway, he initiated a traffic stop by engaging his emergency lights. Ashtian Barnes, the driver, pulled over to the median on the left side of the Tollway out of the immediate traffic zone. Officer Felix parked his car behind the Corolla.
Officer Felix approached the driver’s side window and asked Barnes for his driver’s license and proof of insurance. Barnes replied that he did not have the documentation and that the car had been rented a week earlier in his girlfriend’s name. During this interaction, Barnes was “digging around” in the car. Officer Felix warned Barnes to stop doing so and, claiming that he smelled marijuana, asked Barnes if he had anything in the vehicle Officer Felix should know about. In response, Barnes turned off the vehicle, placing his keys near the gear shift, and told Officer Felix that he “might” have the requested documentation in the trunk of the car. What happened next was captured on Officer Felix’s dash cam. The district court found:
At 2:45:28, Felix orders Barnes to open the trunk of his vehicle. At this time, Barnes’s left blinker is still on, indicating that the keys are still in the ignition.
At 2:45:33, Barnes opens the trunk of the vehicle.
At 2:45:36, Barnes’s left blinker turns off.
At 2:45:43, Felix asks Barnes to get out of the vehicle.
At 2:45:44, Barnes’s driver side door opens.
At 2:45:47, Barnes’s left blinker turns back on.
At 2:45:48, Felix draws his weapon.
At 2:45:49, Felix points his weapon at Barnes and begins shouting “don’t fucking move” as Barnes’s vehicle begins moving.
At this point, Officer Felix stepped onto the car with his weapon drawn and pointed at Barnes, and—as Appellants claim and as supported by the footage—”shoved” his gun into Barnes’s head, pushing his head hard to the right. Then, the car started to move. While the car was moving, Officer Felix shot inside the vehicle with “no visibility” as to where he was aiming. [Note: Officer Felix had “no visibility,” i.e., could not see into the car, because his head was outside and above the roof of the car while he held on to the car frame.][ii] The next second, Officer Felix fired another shot while the vehicle was still moving. After two seconds, the vehicle came to a full stop, and Officer Felix yelled “shots fired!” into his radio. Officer Felix held Barnes at gunpoint until backup arrived while Barnes sat bleeding in the driver’s seat. At 2:57 p.m., Barnes was pronounced dead at the scene.
The Homicide Division of the Houston Police Department investigated and presented a report to the Harris County District Attorney’s Office, who presented the report to a grand jury on August 26 and August 31, 2016. The grand jury returned a “no bill;” that is, it found no probable cause for an indictment. Harris County Precinct 5 Constable’s Office also conducted an internal investigation and found that Officer Felix had not violated its Standard Operating Procedures.[iii]
Barnes’ parents filed suit on behalf of their son against Officer Felix and Harris County and alleged both state tort claims under Texas law and federal claims under the Fourth Amendment for excessive force. This article will only discuss the federal claims.
The district court granted summary judgment for the officer, finding that, at the moment in time the officer fired his weapon, he reasonably believed that his life was in danger, therefore the officer did not violate the Fourth Amendment. Thus, the district court dismissed the suit. The district court also dismissed the suit against county because the plaintiffs failed to establish an underlying constitutional violation. The plaintiffs appealed to the Fifth Circuit Court of Appeals.
The court of appeals first noted the legal standard upon which they evaluate the deadly for cases in the Fifth Circuit. The court of appeals stated
[W]e may only ask whether Officer Felix “was in danger ‘at the moment of the threat‘ that caused him to use deadly force against Barnes. In this circuit, “it is well-established that the excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of the threat that resulted in the officers’ use of deadly force.” This “moment of threat” test means that “the focus of the inquiry should be on the act that led the officer to discharge his weapon.” “Any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.“[iv]
The court of appeals noted that the district court determined that “the moment of threat occurred in the two seconds before Barnes was shot,” while Officer Felix was holding onto Barnes’ moving vehicle.[v] The court of appeals also noted that the district court held that this “could have made Officer Felix ‘reasonably believe his life was in imminent danger.’”[vi]
The court of appeals next examined Harmon v. City of Arlington,[vii] in which an officer stood on the running board of a fleeing vehicle and shot the driver. The Fifth Circuit stated
Finding no constitutional violation, the opinion noted that the “brief interval—when [the officer] is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether [the officer] reasonably believed he was at risk of serious physical harm.”[viii]
The Fifth Circuit then held that, because Officer Felix was similarly clinging to fleeing vehicle when he shot Barnes, applying the “moment of threat test,” Officer Felix did not violate the Fourth Amendment. As such, the court of appeals affirmed the grant of summary judgment for the officer.
The court of appeals also examined if Harris County was entitled to summary judgment. In order to hold a municipality liable for the acts of its employees, the plaintiff must show that (1) the officer committed a constitutional violation and (2) the “moving force of the violation was a policy or custom of the municipality.”
The court of appeals held that since the plaintiffs were unable to establish that Officer Felix violated the Fourth Amendment, they do not meet the requirements to establish liability on the part of the county. As such, the court of appeals affirmed the grant of summary judgment for the county.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-20519 (5th Cir. Decided January 23, 2024)
[ii] Id. at Fn. 2
[iii] Id. at 2-4
[iv] Id. at 8 (emphasis added)
[v] Id.
[vi] Id. at 8-9
[vii] 16 F.4th 1159 (5th Cir. 2021)
[viii] Barnes at 9
