Supreme Court hears challenge to Fifth Circuit’s “moment of the threat” approach in Barnes v. Felix

The Supreme Court heard argument Tuesday in Barnes v. Felix, a case testing whether courts may confine Fourth Amendment excessive‑force review to the instant an officer uses force or whether they must examine the “totality of the circumstances,” including an officer’s conduct before the moment of the threat. Petitioners say Ashton Barnes was shot and killed after a traffic stop for unpaid tolls on a Texas highway and that the lower courts erred by limiting review to the seconds immediately before the shooting.

Petitioner’s counsel urged the Court to adopt the totality test the Court has applied in Graham, Garner, Scott and Plumhoff and to allow review of events leading up to a shooting. “We are here today because Ashton Barnes was shot and killed on the side of a Texas highway after being pulled over for unpaid tolls,” counsel for petitioner said. He told justices the Fifth Circuit’s so‑called “moment of the threat” rule—under which courts ask only whether the officer was in danger at the instant force was used and exclude prior conduct—creates “legal amnesia” and prevents proper balancing of the government interest against the harm to the suspect. Counsel said the court of appeals’ approach foreclosed consideration of alternatives available to the officer that day, noting the stop was captured by highway cameras and officers could have followed by car,…