A Fifth Circuit judge on Tuesday upheld the dismissal of a lawsuit brought against an officer who shot and killed a man during a traffic stop. He also called on his colleagues, or the U.S. Supreme Court, to revisit the doctrine underpinning the ruling: the so-called “moment of threat doctrine.”
Judge Patrick E. Higginbotham authored both the panel opinion and a concurrence in the case brought by the parents of Ashtian Barnes, who was shot and killed in April 2016 after being stopped by Officer Roberto Felix Jr. of the Harris County Precinct 5 Constable’s Office.
Circuit precedent, he wrote, requires affirming the district court’s dismissal order.
“As the district court explained, we may only ask whether Officer Felix ‘was in danger “at the moment of the threat” that caused him to use deadly force against Barnes,’” Judge Higginbotham wrote. “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.”
According to the opinion, Felix initiated the traffic stop on Barnes after hearing over the radio that the car Barnes was driving had racked up violations for not paying to use the toll roads, which is a non-arrestable offense. Barnes pulled over and rolled down his window and Felix asked for his driver’s license and insurance.
Barnes began “digging around” in the car — a rental car in his girlfriend’s name — and after Felix warned him to stop, Barnes turned off the car and told Felix he may have the requested documentation in the car’s trunk.
The opinion offers a play-by-play of what happened next, based on Felix’s bodycam footage:
• 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.
That’s when Felix stepped onto the car’s running board with his weapon drawn, pointed the gun into the car with “no visibility” as to where he was shooting and fired a shot while the car was moving.
A second later Felix fired another shot and two seconds after that the vehicle came to a full stop.
Felix called for backup, holding Barnes at gunpoint. At 2:57 p.m. Barnes was declared dead at the scene.
A grand jury no-billed Felix. An internal investigation cleared the officer of any wrongdoing.
Barnes’ family filed this lawsuit in December 2017, alleging Felix violated Barnes’ Fourth Amendment right to be free from excessive force.
U.S. District Judge Alfred H. Bennett dismissed the case on summary judgment, agreeing with Felix’s argument that he could have reasonably feared for his life while standing on the car’s running board as it moved so he was entitled to qualified immunity from suit.
The family had argued that even if Felix did fear for his life, and even if Barnes was trying to flee, there was no threat that justified the use of deadly force.
Judge Bennett also held that Felix’s actions prior to the “moment of threat,” including his decision to jump onto the car, had “no bearing” on the use of force.
The Barnes family appealed to the Fifth Circuit in October 2022.
While noting that Judge Bennett was correct in his analysis of the case under circuit precedent, Judge Higginbotham struck a somber tone in his concurrence, arguing the doctrine observed by the Fifth Circuit places it out-of-step with the U.S. Supreme Court’s instruction to “look to the totality of the circumstances” to determine whether an officer’s use of deadly force is reasonable.
“A routine traffic stop has again ended in the death of an unarmed black man, and again we cloak a police officer with qualified immunity, shielding his liability,” he wrote.
Judge Higginbotham wrote that in his view the doctrine lessens Fourth Amendment protections and devalues human life, in addition to running afoul of the U.S. Supreme Court’s 1985 holding in Garner v. Tennessee, which instructs courts to look at the “totality of circumstances” and established the baseline rule that deadly force can only be used to protect one’s own life or the life of another.
“We, and three of our sister courts, have narrowed the totality of circumstances inquiry by circumscribing the reasonableness analysis of the Fourth Amendment to the precise millisecond at which an officer deploys deadly force,” he wrote, explaining the Second, Fourth and Eighth Circuits have all adopted the same approach to assessing reasonableness in deadly force cases.
“The moment of threat doctrine trims Garner with predictable results: by cabining the Court’s analysis, it turns to the issue of qualified immunity after eliding the reality of the role the officers played in bringing about the conditions said to necessitate deadly force,” he wrote.
The doctrine “starves the reasonableness analysis” by preventing the court from considering Felix’s own actions that escalated the encounter, he wrote. Considering the totality of circumstances, Judge Higginbotham wrote, “merits finding that Officer Felix violated Barnes’s Fourth Amendment right to be free from excessive force.”
“This officer stepped on the running board of the car and shot Barnes within two seconds, lest he get away with driving his girlfriend’s rental car with an outstanding toll fee,” he wrote. “The moment of threat doctrine is an impermissible gloss on Garner that stifles a robust examination of the Fourth Amendment’s protections for the American public. It is time for this Court to revisit this doctrine, failing that, for the Supreme Court to resolve the circuit divide over the application of a doctrine deployed daily across this country.”
The panel heard arguments in the case in October.
Judges Jennifer Walker Elrod and Jerry E. Smith also sat on the panel.
Barnes is represented by Adam Fomby and Howard Fomby II of Fomby Law Firm.
Harris County and Felix are represented by James Butt and Susan Fraser of the Harris County Attorney’s Office. The case number is 22-20519.