During a routine traffic stop near Houston in 2016, a police officer killed Ashtian Barnes by blindly firing two shots into his car after jumping onto the doorsill as Barnes began to drive away. Last year, the U.S. Court of Appeals for the 5th Circuit ruled that the shooting was justified by the threat that the officer, Harris County Constable Roberto Felix Jr., faced when he shot Barnes. Last Thursday, the U.S. Supreme Court unanimously rejected the logic of that decision, which focused on “the moment of the threat” rather than “the totality of the circumstances”—the standard that the Court has said should be applied in use-of-force cases.
“We reject [the 5th Circuit’s] approach as improperly narrowing the requisite Fourth Amendment analysis,” Justice Elena Kagan writes in Barnes v. Felix. “To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.”
The Court’s decision “echoes the common law’s historical protection of human life, which restricted the use of deadly force by officers—particularly in cases of flight from minor offenses,” says Mike Fox, a legal fellow at the Cato Institute, which submitted a brief supporting the civil rights lawsuit that Barnes’ parents filed against Felix. “Deadly force was traditionally reserved for instances of forceful resistance against an officer.”
This case did not involve “forceful resistance,” and it arose from offenses that were about as minor as one can imagine. Felix stopped Barnes on the Sam Houston Tollway because the Toyota Corolla he was driving, which his girlfriend had rented, was linked to toll violations racked up by a previous customer. Felix parked behind Barnes and approached the driver’s side window. When Felix asked for Barnes’ driver’s license and proof of insurance, the 5th Circuit noted, “Barnes replied that he did not have the documentation and that the car had been rented a week earlier in his girlfriend’s name.”
Seeing Barnes “digging around” in the car, Felix told him to stop. Claiming to smell marijuana (which a subsequent search did not find), Felix asked if Barnes had anything illegal in the car, at which point Barnes “turned off the vehicle, placing his keys near the gear shift.” Barnes “told Officer Felix that he ‘might’ have the requested documentation in the trunk of the car.”
Dash camera video showed what happened next. Felix ordered Barnes to pop the trunk, which he did. Felix asked Barnes to get out of the car, and Barnes opened the driver’s side door. But then Barnes restarted the car, prompting Felix to draw his gun, point it at Barnes, and say “don’t fucking move.” As the car began moving, Felix “stepped onto the car with his weapon drawn and pointed at Barnes,” “‘shoved’ his gun into Barnes’s head, pushing his head hard to the right,” and fired two shots.
Felix had “no visibility into the car” because “his head was above the roof,” Kagan notes. “All told, about five seconds elapsed between when the car started moving and when it stopped. And within that period, two seconds passed between the moment Felix stepped on the doorsill and the moment he fired his first shot.”
One question raised by Barnes v. Felix, U.S. District Judge Alfred Bennett noted in 2021, was “whether the Court can consider the officer’s conduct precipitating the shooting—which included jumping onto a moving vehicle and blindly firing his weapon inside—in determining whether the officer used excessive force in violation of the Fourth Amendment.” Under 5th Circuit precedent, he concluded, “the answer is no.”
Bennett was not happy with that answer. “By limiting the focus of the judicial inquiry so narrowly as to only examine the precise moment the officer decided to use deadly force,” he wrote, “the Fifth Circuit has effectively stifled a more robust examination of the Fourth Amendment’s protections when it comes to encounters between the public and the police.” He urged the appeals court to “consider the approach applied by its sister courts,” which makes it possible to “hold officers accountable when their conduct has directly resulted in the need for deadly force and infringed upon the rights secured by the Fourth Amendment.”
That sort of analysis, an appeals court panel concluded in January 2024, was precluded by 5th Circuit precedent. But Judge Patrick Higginbotham, who wrote the opinion upholding the dismissal of Barnes v. Felix, took the extraordinary step of writing a separate concurrence to elaborate on the problems with the 5th Circuit’s “very narrow approach.”
Bennett “rightfully found that [his] reasonableness analysis under the Fourth Amendment was circumscribed to the ‘precise moment’ at which Officer Felix decided to use deadly force against Barnes,” Higginbotham wrote. But he argued that “this Circuit’s moment of threat doctrine” flouts “the Supreme Court’s instruction to look to the totality of the circumstances when assessing the reasonableness of an officer’s use of deadly force.”
The Supreme Court agreed. “The ‘totality of the circumstances’ inquiry into a use of force has no time limit,” Kagan writes. “Of course, the situation at the precise time of the shooting will often be what matters most; it is, after all, the officer’s choice in that moment that is under review. But earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”
Although the Court’s intervention revived the lawsuit against Felix, he may yet prevail by arguing that the shooting was justified under the Fourth Amendment even based on a proper consideration of all the relevant circumstances. That seems to be the outcome favored by Justice Brett Kavanaugh, who wrote a concurring opinion joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett.
Kavanaugh emphasizes “the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of the stop.” He illustrates that point by describing incidents in which police officers were shot and killed by people they had pulled over. But those incidents hardly seem relevant in this case, where the driver was unarmed and posed no such threat.
“Even though most traffic stops end without incident, traffic stops are nonetheless inherently risky for police officers,” Kavanaugh writes. “And when, as in this case, the driver suddenly pulls away in the midst of a stop, the risks multiply. A driver speeding away from a traffic stop could easily endanger bystanders and other drivers—especially if the fleeing driver is under the influence of alcohol or drugs, as might well be the case when a driver flees. Moreover, the very ‘fact that a suspect flees when suspected of a minor offense,’ such as speeding or a failure to pay tolls, ‘could well be indicative of a larger danger.'”
In that situation, “there are no easy or risk-free answers,” Kavanaugh says. “Every feasible option poses some potential danger to the officer, the driver, or the public at large—and often to all three. And an officer in that situation must make a split-second choice among those various dangerous options.” He mentions four options.
The officer “could simply let the driver go,” Kavanaugh concedes, and then “attempt to catch the driver by, for example, tracking the car’s license plate or reviewing surveillance footage.” But that response “may exacerbate the dangers, rather than mitigate them,” because “the fleeing driver might be a threat to the community.” And “encouraging officers to stand back and allow drivers to take off would also create ‘perverse incentives’ for those who are stopped by the police.”
The officer “could get back in his police car and give chase, or could radio other officers to pursue the driver,” Kavanaugh says. But “a high-speed chase” can be “exceptionally dangerous to the officer, the driver, and others on the road.”
The officer “might try to shoot out the tires of the fleeing car, or otherwise try to hinder the car’s movement, in order to bring it to a stop,” Kavanaugh writes. “But shooting at a car, especially its tires, can be ‘dangerous’ and is often ‘ineffective.’ Even if the officer manages to hit the tires, the driver could lose control and crash into others on the road.”
Finally, Kavanaugh says, “the officer could attempt to stop the fleeing driver at the outset by jumping on or reaching into the car”—the option that Felix chose. “The dangerousness of that option is readily apparent,” Kavanaugh writes. “Perhaps the driver will hit the brakes once he realizes an officer is clinging to the car or attempting to reach through the window. But if the driver does not slow down, then the officer may suffer serious and perhaps fatal injuries. The officer could try to fire his weapon to incapacitate the driver and bring the car safely to a stop. But the car may be just as likely to go careening into traffic, thereby threatening the safety of the officer, other drivers, passengers, pedestrians, and more.”
Of all these options, letting the driver go for the time being seems like the safest course in cases like this one, where the driver was unarmed, initially cooperative, and suspected of nothing more than failing to pay tolls—a trivial offense that was actually committed by someone else. Barnes posed no threat to Felix or anyone else until the officer made the manifestly dangerous decision to jump on the car, which created a risk that Felix then sought to neutralize by shooting Barnes. That “split-second choice” would have been entirely unnecessary but for Felix’s reckless conduct.
Kavanaugh does not acknowledge that point, and his observations suggest he does not view it as dispositive. “In analyzing the reasonableness of an officer’s conduct at a traffic stop, particularly traffic stops where the driver has suddenly pulled away,” he says, “courts must appreciate the extraordinary dangers and risks facing police officers and the community at large.”
Even if the lower courts ultimately decide those “extraordinary dangers” somehow made Felix’s use of deadly force reasonable, they will at least be free to consider what happened prior to the few seconds after he endangered himself by jumping on the car. The ruling “has the potential to help restore public confidence in law enforcement,” Fox argues. “Moreover, it promotes safer policing practices by underscoring the importance of considering the broader context leading up to the use of deadly force.”
