The Supreme Court’s May 15 decision in Barnes v. Felix was one of the most anticipated by law enforcement in recent memory.
At issue, as explained in my Police1 article a week after the decision, was whether Harris County Deputy Constable Felix’s use of deadly force should be judged under the “moment of threat” doctrine followed in a minority of federal circuits (2nd, 4th, 5th and 8th Circuit Courts of Appeal) or the “totality of the circumstances” test announced in Graham v. Connor.
The Supreme Court overturned the 5th Circuit’s affirmation of the lower district court’s dismissal of the civil claim initiated by Ashtian Barnes’ estate. The district court had granted summary judgment to Deputy Constable Felix and held that for the Barnes estate to prevail, it had to show Felix’s actions were objectively unreasonable. According to the Supreme Court, the moment of threat standard relied on by the 5th Circuit improperly narrowed the 4th Amendment standard for reviewing use of force. Objective reasonableness, the Court stated, must be judged under a totality of the circumstances. The case was sent back to the 5th Circuit.
| RELATED: Supreme Court 9-0 in highly anticipated Barnes v. Felix use of force case
Much has been written since the Court’s decision that has analyzed the case law, criticized the result, and synthesized the outcome with existing state statutes and department guidelines. Little, if anything, has been written about the case’s continued journey through the 5th Circuit on its remand from the Supreme Court.
The Supreme Court’s May 15 decision in Barnes v. Felix was one of the most anticipated by law enforcement in recent memory.
In a September 18 decision written by Judge Patrick E. Higginbotham, the 5th Circuit affirmed its prior decision after analyzing what occurred on April 28, 2016, on the Sam Houston Tollway. Beginning with a brief review of prior Supreme Court case law that reinforced the “inordinate risk confronting an officer as he approaches a person seated in a vehicle,” the 5th Circuit analyzed the two-minute encounter between Felix and Barnes. That analysis focused on a several things:
- The initial stop of the vehicle based on a radio broadcast that there were numerous open toll violations for the car driven by Barnes;
- Barnes’ statement to Feix that he did not have his license and he was driving his girlfriend’s car;
- Barnes’ rummaging through the car looking for documentation;
- Felix’s repeated request for Barnes to stop rummaging;
- Felix smelling marijuana and asking Barnes if he had anything in the car that Felix should be concerned about;
- Felix calling for backup;
- Felix asking Barnes to step out of the car and Barnes ignoring him by grabbing the keys he previously placed on the dashboard and re-starting the car;
- Felix yelling to Barnes “don’t do it”;
- Barnes driving away.
Flush with these facts Judge Higginbotham wrote: “In that moment, ‘all that a reasonable police officer could have concluded was that Barnes was intent on . . . flight and that, if he were allowed to do so, he would . . . pose a deadly threat for others on the road’ — the vehicle would enter traffic in the fast-lane of the freeway.”
This left Deputy Constable Felix with what Judge Higginbotham described as “a split-second decision between only bad options.” Felix could have either begun a potentially dangerous high-speed highway pursuit of Barnes or he could mount the door sill, which he did, and order Barnes to stop.
The 5th Circuit decision then addressed what ensued: “In the little time Felix had to act, and with the little he knew about Barnes, Felix did not act unreasonably in protecting himself and possibly others. Instead, Felix — having spent eleven years on the job with an Advanced Peace Officer license — did exactly what he was trained to do. As Felix clung to the doorframe of the accelerating car, he withdrew then reinserted his weapon into the passenger compartment toward the driver’s seat. Barnes kept driving. Felix shot inside the vehicle, ‘acting reasonably in using deadly force to end the risk of flight.’ And because Barnes still did not stop, Felix acted reasonably in firing a second shot.”
Based on these facts, supported by video and Deputy Constable Felix’s testimony, the 5th Circuit affirmed its prior ruling, and that of the district court, under a totality of the circumstances analysis.
Despite Barnes v. Felix consolidating case law among the federal circuit courts of appeal, use of force challenges are still likely to make their way to the Supreme Court. In Barnes, the Supreme Court did not consider the “officer-created jeopardy” element of the petitioner’s claim. Under this theory, police officer use of force will not be reasonable in situations where officers either deliberately or recklessly escalate a situation by their own actions.
The weight of this argument is contained in a 2021 law review article written by George Washington University School of Law professor Cynthia Lee, titled Officer-Created Jeopardy: Broadening the Time Frame for Officer-Created Jeopardy: Broadening the Time Frame for Assessing a Police Officer’s Use of Deadly Force. A year later, a separate article in the University of Michigan Journal of Law Reform, argued for a rebuttable presumption of unreasonableness in police use of force cases under 42 USC §1983.
This reform proposal called for the law to “incorporate officer pre-seizure conduct into the legal analysis and close the officer-created liability loophole” by pre-supposing police use of force is unreasonable and providing plaintiffs with a “sword” rather than the present “shield” available to police officer defendants. Aside from upending decades of established case law, the proposal creates heightened liability concerns for officers whose actions are based on discretionary, good-faith judgments under tense situations.
This is an issue to perhaps be further explored in a subsequent article, but for the time being it is enough to know that Barnes v. Felix is not the last word in Fourth Amendment use of force analysis. At some point, officer-created jeopardy will be addressed.
Barnes v. Felix is not the last word in Fourth Amendment use of force analysis. At some point, officer-created jeopardy will be addressed.
Police emergency entry into a home
On October 15, the Supreme Court heard oral argument in Case v. Montana featuring the following issue: May law enforcement enter a home without a search warrant based on less than probable cause that an emergency is occurring?
In its 2006 decision in Brigham City v. Stuart, the Court ruled that police may enter a residence or building without a warrant when they have an objectively reasonable basis to believe an occupant is either “seriously injured or threatened with such an injury.” The police in that case responded to a house party where juveniles were drinking and observed through a window a fight during which one participant was punched and spit out blood. They announced themselves but were not heard and proceeded to enter the home. Several individuals were arrested and police gathered evidence from the home. The lower state court suppressed evidence gathered after police entry into the home, deeming it to be a Fourth Amendment violation. Chief Justice Roberts wrote that protection or preservation of life and prevention of serious injury justifies government conduct that would otherwise be illegal absent an emergency or exigency.
The facts of Case v. Montana center on a call from Trevor Case’s girlfriend to the police with her concern that he was suicidal. The girlfriend, J.H., told police Case was erratic on the phone and she heard what sounded like a pistol being cocked. When speaking with Case she expressed her concern and said she was going to call the police. He threatened to shoot responding officers and then she heard a pop which she believed was a gunshot.
When police arrived at Case’s residence, they attempted to make contact by knocking on doors and calling out to him through a window. They saw beer cans and an empty handgun holster in a ground floor room, and what they thought was a suicide note. After 40 minutes on scene, they entered the house with guns drawn due to the threat Case had made. One of the officers found Case upstairs in a closet. When he opened the door Case pulled back a curtain and appeared to have a black object in his hand. The officer shot Case in the abdomen. A handgun was recovered near where Case slumped over. At trial, Case sought to have the evidence recovered from the warrantless entry suppressed. The motion was denied and after conviction on a charge of Assault on a Peace Officer, Case appealed. The Montana Supreme Court affirmed the trial court determination.
At oral argument, Case’s attorney said that police officers must have probable cause to believe someone in a house is seriously injured or imminently threatened with injury for them to enter. Montana’s solicitor general stated that the Fourth Amendment only prohibits unreasonable searches and not all warrantless ones. Most of the Court seemed to have a problem with the legal argument of Case’s attorney, questioning whether a strict probable cause approach is necessary under the circumstances.
What do you think the result should be? A decision will be available in late June or early July, and I will have the Supreme Court’s analysis here for you. In the meantime, have a wonderful holiday season and a Happy New Year. Stay safe everyone.
More Police1 2025 in Review
- What we can learn about event security from the Charlie Kirk assassination
- Inside the 2025 L.A. riots: How police can counter new protest tactics
- Federal surge in D.C.: How it works and the history behind it
- Modern terrorism tactics: The threat of vehicle-based attacks
- Weaponized drones cross borders — the Tijuana attack is a warning
- The selfie that proved a cop died in the line of duty
