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, radioed others, or tracked the license plate rather than leap onto the moving vehicle.

Why this matters: the Court’s decision could change the scope of evidence admissible in excessive‑force suits and affect training and policing nationwide. Petitioners pressed that small slices of time—often “two seconds,” as counsel repeatedly highlighted—can mask conduct that made force effectively inevitable and that the courts below prevented meaningful review and factfinding.

Respondent and government positions: counsel defending the Fifth Circuit said that courts already consider pre‑shooting events to the extent they inform an officer’s perception of danger and that officers do not forfeit the right to defend themselves because of an earlier mistake. “When an officer doing his duty confronts a threat to his safety or the safety of others, it is reasonable for that officer to use force to end that threat,” respondent’s counsel told the Court, urging affirmation of the court of appeals’ judgment. The United States, arguing separately, urged a narrower remedy: it agreed the Fifth Circuit’s categorical exclusion of prior events was wrong but told the justices it did not take a position on the facts of this case. The government counsel asked only that the Court make clear the Fifth Circuit could not confine review to the split second of the shooting and send the case back for a full Fourth Amendment analysis.

Lines of dispute: justices pressed both sides on practical and doctrinal questions. Several asked whether the Court could and should give officers clear guidance—what would training manuals say after a decision—and whether a ruling permitting review of earlier conduct would sweep in ordinary negligence or departmental policy violations. Petitioners and the United States emphasized they seek an objective totality inquiry, not a subjective “officer‑created danger” test that would base liability on hindsight judgments about decisions or training. Opponents warned that permitting excessive‑force claims based on earlier, non‑fatal tactical choices risks imposing a negligence‑style inquiry inappropriate for Fourth Amendment review.

Circuit split and precedent: argument focused on a reported disagreement among circuits over whether courts may treat an officer’s earlier conduct as the basis for an excessive‑force claim. The Fifth Circuit panel below used language described at argument as confining review to whether the officer faced danger “at the moment of the threat” and stated that “any of the officer’s actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this circuit,” language that petitioner and amici urged the Court to correct. Counsel cited this Court’s precedents—Graham, Garner, Scott and Plumhoff—and other decisions such as Mendez and Anderson v. Creighton to show the Fourth Amendment test is fact‑specific and objective.

Evidence and practical examples: petitioners pointed to an empirical study of roughly 400 stops that they said shows a pattern of officers jumping onto cars and then shooting. They argued that in this case expert testimony indicated the officer fired so quickly that the driver had no time to stop, and that the shooting itself endangered other motorists on the highway. Respondents and the United States both acknowledged split‑second decisionmaking is central to the Fourth Amendment inquiry and said qualified immunity and indemnification will blunt unwarranted liability in appropriate cases.

Narrow remedy favored by several justices: multiple justices and the United States suggested a narrow ruling—vacating the Fifth Circuit’s opinion insofar as it treated the moment of threat as an absolute bar to considering prior conduct and remanding for reconsideration under the totality test—would resolve the circuit split without adopting a broad “officer‑created danger” doctrine. Petitioners told the Court they would accept a ruling that simply allows courts to consider the jump onto the vehicle in addition to the shooting.

The case was submitted after roughly an hour of argument. The Court will issue a decision at a later date.