Barnes v. Felix
Oral Argument Before the United States Supreme Court
January 22, 2025
Jack Ryan, Attorney
Legal and Liability Risk Management Institute
The United States Supreme Court heard oral argument in Barnes v. Felix, No. 23-1239, a deadly force case that has been predicted to have a major impact on use of force analysis.
The facts of the case were outlined by the United States Court of Appeal for the 5th Circuit 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.2 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.[i]
The United States Court of Appeals for the 5th Circuit, indicated that the 5th Circuit only looks at the moment in time the force was used and thus would not consider Officer Felix’s actions prior to the time he fired the deadly shot and would not consider arguments the plaintiff made concerning Felix’s tactic of getting on the vehicle.
The case was appealed to the United States Supreme Court.
Question Presented
“The Fourth Amendment prohibits a police officer from using “unreasonable” force. U.S. Const. amend. IV. In Graham v. Connor, this Court held that reasonableness depends on “the totality of the circumstances.” 490 U.S. 386, 396 (1989) (quotation marks omitted). But four circuits-the Second, Fourth, Fifth, and Eighth-cabin Graham. Those circuits evaluate whether a Fourth Amendment violation occurred under the “moment of the threat doctrine,” which evaluates the reasonableness of an officer’s actions only in the narrow window when the officer’s safety was threatened, and not based on events that precede the moment of the threat. In contrast, eight circuits-the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits-reject the moment of the threat doctrine and follow the totality of the circumstances approach, including evaluating the officer’s actions leading up to the use of force.
In the decision below, Judge Higginbotham concurred in his own majority opinion, explaining that the minority approach “lessens the Fourth Amendment’s protection of the American public” and calling on this Court “to resolve the circuit divide over the application of a doctrine deployed daily across this country.” Pet. App. 10a-16a (Higginbotham, J., concurring). The question presented-which has divided twelve circuits-is:
Whether courts should apply the moment of the threat doctrine when evaluating an excessive force claim under the Fourth Amendment.”
Author’s Commentary, a read of the lower court decisions in this case would lead an officer to believe that this case was about the concept of “officer created jeopardy” in other words, if an officer’s bad tactics place the officer in a position where the only alternative becomes deadly force, does that make the force bad notwithstanding the fact that at the moment of the use of deadly force the officer was facing an immediate threat of serious bodily harm or death.
The attorney arguing on behalf of the officer made clear his opinion that plaintiff was arguing in the lower court and even at the Supreme Court for an officer created jeopardy standard.
The attorney for the officer argued:
Petitioner asked the Court to create a new breed of constitutional tort under which an officer facing the barrel of a gun loses his right to defend himself if he previously used bad tactics or poor planning. And Plumhoff and Mendez rejected similar officer-created danger theories as illogical, unwarranted, and inconsistent with precedent. The Court should reject the theory again in this case and affirm the judgment of the court of appeals.
A question from Justice Kavanaugh to the plaintiff’s counsel seemed to support that plaintiff was putting forth an officer created jeopardy argument:
Was it reasonable to — for the officer to jump on the side of the car?MR. ZELINSKY: So, Just — Justice Kavanaugh, we don’t think it was in this particular case, but that’s precisely the issue that the lower courts couldn’t evaluate because they applied this legal amnesia and only look at the fact that the officer was on the moving vehicle. Judge Higginbotham, in his concurrence, looked to the totality of the circumstances and said: I think it was unreasonable in this case. We want the opportunity for a court to be able to look at that and for us to be able to litigate that core claim.
Case Unlikely to Answer the Officer-Created Jeopardy Issue
Notwithstanding the above exchange, the plaintiff made clear that they were not arguing for an officer created jeopardy standard. The solicitor general, arguing on behalf of the United States made clear that officer created jeopardy was not an issue that the United States would support.
JUSTICE SOTOMAYOR: You’ve given up in your reply brief, I understood, that you’re not asking us to — the — the — to address the question of what an officer-created danger rule is like?[Plaintiff] MR. ZELINSKY: We’re not asking for an officer-created danger test at all.
Solicitor General Question:
JUSTICE KAGAN: I assume — tell me if I’m wrong, but I assume that you would want us to write an opinion that doesn’t say anything about the weight to be given to the officer himself creating the danger. But I’m — I’m trying to think of — of — given the facts of this case, how an opinion that you would want us to write avoids that question entirely.MS. JACOBY: I think the narrowest opinion this Court could write would just be to say: Prior circums matter — circumstances matter. They’re part of the totality of the circumstances. The Fifth Circuit didn’t recognize that. If the Court wants to put more meat on the bones, I think it could say, as we’ve said in our brief: The circumstances at the moment of the threat are going to have prime importance, and it’s going to be a rare case in which an officer is experiencing a moment of danger and it’s nevertheless unreasonable to use force. And it’s going to be the types of cases where we’re talking about and — of the sort that Justice Barrett recognized in her Biegert opinion, where the officer has done something outside the bounds of reasonable behavior that essentially makes the use of force almost inevitable. There’s really no intervening misconduct by the suspect. I think the reason the Court might want to go further and — and say it’s going to be rare when there truly is a moment of danger is because you want to avoid a situation where courts are taking this as license to do some kind of officer-created danger rule, where merely getting into a bad circumstance, making a bad stop, means that the later use of force is automatically unreasonable.MS. JACOBY: This Court certainly doesn’t need to — to say anything further than — than the narrow opinion that — that Justice Alito sketched out with my friend. But I do think, given that the question is the reasonableness of the use of force in the moment, the circumstances in the moment and the presence of a danger in the moment will have to be quite important.
Plaintiff and the Solicitor General both argued that the issue in the case was whether the United States Court of Appeals for the 5th Circuit “moment of threat doctrine” was a proper analysis.
The questions put forth by some of the justices as well as the arguments seemed to make clear, to include concessions by the attorney for the officer that a pure “moment of threat doctrine” analysis was contrary to the “totality of circumstances” approach that has been the Constitutional Standard for decades.
That said, Justice Alito questioned exactly what would come in under the totality of circumstances approach, would it be limited to a violation of the 4th Amendment itself or could a violation of department policies be considered,
JUSTICE ALITO: Well, it’s fine to tell someone, a court or anybody else: Take into account the totality of the circumstances. But that’s fairly meaningless unless you also tell that person what — what you are examining the totality of the circumstances to determine. And that’s really the — the difficult question here. Are you examining the totality of the circumstances to determine whether the act that forms the gravamen of the Fourth Amendment claim — let’s say it is the — the use — the allegedly unreasonable use of deadly force — is unreasonable? Or are you asking the court or the. jury to determine whether the whole course of conduct in which the officer is engaged was unreasonable, in part in the sense that it wasn’t prudent, it was in violation of perhaps departmental policies or the best practices that had been established for police department — that — that some people think should be followed by police departments around the country? That — that’s really the difficult question, and what — what would you say to that?Ms. Jacoby: I would say, Justice Alito, the former. The question is: Was the use of force, the seizure, reasonable in the moment? That’s what we’re trying to get at when we look at the totality of circumstances. We’re not doing some sort of freewheeling inquiry into whether the officer overall, over the course of five minutes, acted reasonably. So — so that is why we think the circumstances in the moment do have prime importance. But that does not mean that courts have a license to ignore everything before that moment, as the Fifth Circuit did here.JUSTICE ALITO: Well, would it be — would a court hearing this case be obligated to admit expert testimony by various individuals who have a view about what are good police practices and what are not good police practices? Would the — would that be what the jury’s determination would boil down to?MS. JACOBY: So the ultimate determination here about whether the officer acted reasonably is, according to Scott, a pure question of law. The jury’s not deciding that. The jury could be making factual determinations about what actually happened, you know, when the officer jumped and — and all the rest. As the Court is examining whether that initial thing that the officer did here, jumping on the car, was outside the bounds of reasonable behavior, I do think it’s appropriate to look at training manuals and the like. That can’t resolve the question, but that could provide helpful guidance.
Author’s Commentary: Justice Alito wrote the opinion in City ad County of San Francisco v. Sheehan where he asserted: ‘Even if an officer acts contrary to her training, however (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’”
The attorney for the officer, seeming to anticipate that the Court MAY reject the moment of threat analysis and remand the case to the lower courts, suggested the following:
MR. McCLOUD: So I guess I would encourage the Court, if it does end up remanding, to say a little more than simply do it again, Fifth Circuit. I think it is important to say something about this issue of officer-created danger because it has divided the circuits for a number of years. And the Court has gotten a number of cases that present that issue. Mendez is one. The Bond versus City of Talequah case from a few term ago that was summarily reversed was another. And so it is lurking in the background of many of these excessive force cases, and it is doing real harm in the circuits that apply that, the — the Ninth Circuit, the Tenth Circuit. That is the reason we have amici from California that say this standard makes it impossible for us to train officers and give them clear guidance. So I think it’s incumbent on the Court to offer a little more clarity on that in an opinion even if it does remand. So, if the Court is going to offer or accept some version of officer-created danger perhaps along the lines that Your Honor’s Biegert opinion suggested, I think you would want to make clear that something like negligence alone is not going to be enough. It’s going to be an extraordinary case in which an officer’s creation of the danger is the basis for a Fourth Amendment claim.
Justice Thomas summarized, to the agreement of the attorney for the officer, the argument of the officer.
JUSTICE THOMAS: As I understand you, you’re saying that it isn’t so much that the — a difference between whether to use the totality of the circumstances but, rather, what evidence would be available or could be used in that analysis. And, here, you say the officer-created danger should — that the Fifth Circuit said it could not — it would not permit that assessment –MR. McCLOUD: That’s correct.JUSTICE THOMAS: — within the context of totality of circumstances?MR. McCLOUD: Exactly.JUSTICE THOMAS: So it’s a subcategory of the totality of circumstance as I hear you.MR. McCLOUD: It is a particular argument that is off limits in the Fifth Circuit and in the majority of the circuits when you’re considering the totality of the circumstances. So you can still look to things that the officer did prior to using force, but you cannot blame the officer for creating a bad situation and — and second-guess all of the decisions he made.JUSTICE THOMAS: Thank you.
Bottom-Line: While it is never a good idea to guess an outcome from the oral argument, it appears that everyone agreed that a pure “moment of threat analysis” without considering all of the circumstances leading up to the force may run afoul of the “totality of circumstances” approach which has been the law of the 4th Amendment for decades. The decision, when it comes, may simply be a rejection of the 5th Circuit’s “moment of threat” analysis and a remand of the case.
A better posture for law enforcement training and practice would be, as Justice Thomas seemed to recognize, an indication by the Court of what types of officer conduct could make a use of force, which was good at the moment of the threat, bad due to officer conduct leading up to the force.
We will be watching for the decision and publish a summary as soon as it comes out.
