The New Jersey Police Chief Magazine | February 2025
Examining the ‘ moment of threat ’ doctrine : A crucial case for law enforcement Reprinted with permission from Lexipol . com
The Supreme Court ’ s ruling in Barnes v . Felix could help resolve whether use of force should be judged by the moment of threat doctrine or the totality of the circumstances
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 been 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 .
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