The Supreme Court on Wednesday appeared inclined to allow a civil rights lawsuit to proceed against the Harris County Precinct 5 deputy constable who killed Ashtian Barnes during a 2016 traffic stop.
After roughly an hour and fifteen minutes of oral arguments, the justices appeared likely to issue a narrow ruling in favor of Barnes’ mother and estate, sending the case back to the U.S. Court of Appeals for the Fifth Circuit for further review. The New Orleans-based court, which hears Texas cases, had previously upheld a Houston judge’s ruling that found Deputy Roberto Felix did not violate Barnes’ constitutional rights when he jumped onto the sill of Barnes’ moving car and fatally shot him.
Nathaniel Zelinksy of Hogan Lovells, representing Barnes’ family, argued that the analysis used by the Fifth Circuit was flawed.
“Justice Scalia was no fan of a totality of the circumstances test. But in Scott, Justice Scalia made clear that courts must slosh through the fact-bound morass of reasonableness,” Zelinksy said, referring to the late justice who authored the majority opinion in the court’s 2007 decision. “In this case, the district court and the Fifth Circuit didn’t do that.”
Zelinsky argued that the Fifth Circuit applied what legal experts call the “moment of threat doctrine,” describing it as a “form of legal amnesia” that is “incompatible with precedent, conflicts with common law, and defies common sense.”
On the afternoon of April 28, 2016, Deputy Felix stopped 24-year-old Ashtian Barnes while he was driving on Beltway 8 in west Houston. Dashcam footage of the encounter shows the deputy pulling Barnes over and approaching his vehicle. Barnes was reportedly driving his girlfriend’s rental car, which had outstanding toll fees.
The footage shows Felix approaching Barnes, who had parked his car on the left side of the Harris County toll road, and opening the driver’s side door.
When Barnes began to drive away, Felix stepped onto the door sill and fired two shots, striking Barnes and killing him. In August 2016, a Harris County grand jury decided not to indict Felix on criminal charges after an investigation by the Houston Police Department.
In his March 2021 ruling, U.S. District Judge Alfred Bennett said Fifth Circuit precedent prevented him from considering the events leading up to the shooting when determining whether Felix had used excessive force.
Bennett explained that his analysis was limited to the moment Felix perceived a threat to himself or others and determined that threat arose after Felix jumped onto the sill and in the two seconds before he fired his first shot.
“Once Felix decided to jump onto the door sill, escalating the encounter even further, Barnes’s continued operation of the vehicle put Felix at risk of serious harm,” Bennett wrote in his ruling. “Because it is this act – and this act alone – that the Fifth Circuit has instructed courts to evaluate, this court’s inquiry begins and ends there. Therefore, because Barnes posed a threat of serious harm to Felix, his use of deadly force was not excessive, and there can be no constitutional violation.”
A three-judge panel of the federal appeals court upheld Bennett’s ruling. However, the judge who authored the majority opinion, Patrick Higginbotham, expressed concerns in a concurrence, arguing that the legal framework restricted him from examining the entire incident.
“The moment of threat doctrine is an impermissible gloss on Garner that stifles a robust examination of the Fourth Amendment’s protections for the American public,” wrote Higginbotham, who was appointed by President Ronald Reagan.
The central issue before the court is whether the Fifth Circuit and other appellate courts are wrong to focus only on the moment an officer perceives a threat, without considering the broader context of a situation when evaluating claims of excessive force.
On Wednesday, a majority of the justices appeared to agree that the lower courts should consider the events leading up to the use of force in determining whether the officers acted reasonably. However, they seemed more focused on issuing a narrow ruling that would allow the civil rights lawsuit to proceed, rather than issuing a broader mandate.
“So it seems as though we should kick it back and let you guys fight it out as to the relevance of anything that happened beyond the prior two seconds,” said Justice Elena Kagan, appointed by President Barack Obama.
In a previous case, the Supreme Court instructed lower courts to assess the “totality of the circumstances” when determining whether an officer acted lawfully. However, it did not clarify the relevant time frame, explained Seth Stoughton, a law professor at the University of South Carolina and former police officer.
Stoughton said some courts, including the Fifth Circuit, have since adopted an approach that examines only the moment an officer uses force. Criticizing this method, Stoughton submitted a friend-of-the-court brief urging the Court to discard the analysis “once and for all.”
“Focusing solely on the moment of threat overlooks actions by officers that may have created or contributed to a dangerous situation, leaving them feeling they have no choice but to use deadly force,” Stoughton said in an interview.
Among those who submitted a separate friend-of-the-court brief urging the Court to discard the doctrine was Art Acevedo, who served as Houston police chief from 2016 to 2021. He did not respond to multiple requests for comment.
Charles McCloud of the Washington, D.C.-based law firm Williams & Connolly, arguing on behalf of Felix, disagreed with the claim that the moment of threat doctrine prevents lower courts from considering the events leading up to the use of force.
“Like other circuits, the Fifth Circuit has repeatedly held that preceding events are relevant to the extent they inform the officer’s perception of the danger that he faced,” he said.
Law enforcement groups argue that a broader examination of an officer’s actions before force is used could lead to indecision, potentially placing officers at greater risk in high-stakes situations.
Larry James, a Columbus, Ohio attorney who submitted a friend-of-the-court brief on behalf of the National Fraternal Order of Police, believes the outcome would be the same even if Felix’s actions before the shooting were considered, and he maintains that Felix did not use excessive force.
“We deal with many gray areas, but this is not one of them,” James said.
A decision in the case is expected by early summer.
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