I want to thank Steve Henderson for inviting me to blog once more on CrimProfBlog. According to my CV, which I have no reason to doubt, I last was a contributing editor here in 2009.
For my first blog post in sixteen years on CrimProfBlog, I wanted to discuss Barnes v. Felix, argued in the Supreme Court on January 22, 2025. Barnes is a § 1983 action alleging a violation of the Fourth Amendment. The facts are fairly straightforward. In April, 2016, Ashtian Barnes was driving a rental car near Houston, Texas. Unfortunately for Mr. Barnes, the rental car had, unbeknownst to him, accrued some unpaid toll fees. Respondent, Officer Roberto Felix, Jr., initiated a traffic stop and asked Barnes to step out of the car. The car started moving forward with the driver’s side door open, likely because Barnes was trying to escape. In rapid succession, Felix drew his gun, jumped onto the door sill of the moving car, and shot Barnes twice. The car came to a stop and Barnes died within minutes. The dashcam video of this brief and disturbing encounter can be seen at https://youtu.be/9gbM_22fUbY.
Petitioner, Barnes’s mother brought a § 1983 action alleging that Felix unreasonably seized her son by shooting him dead. The district court granted summary judgment to the officer and the Fifth Circuit affirmed, using the “moment of the threat” doctrine. The Supreme Court in Graham v. Connor instructed courts to look to the totality of the circumstances to determine whether an officer’s seizure by use of force was reasonable. However, in cases where police face an imminent threat of harm to themselves or others, courts that follow the “moment of the threat” doctrine – including apparently the Second, Fourth, and Eighth Circuits – look only, as the name suggests, at the instant before force was used by the officer. Thus, the courts here looked only at whether it was reasonable to use deadly force to prevent Barnes from driving away with Felix standing on the doorsill, which obviously posed a great risk of harm to Felix. In determining whether Felix’s actions were reasonable, they ignore Felix’s own unwise decision to place himself on the doorsill in the first place.
It was fairly clear from oral argument that the Court was going to reverse and remand on the ground that a strict “moment of the threat” doctrine is inconsistent with Graham’s “totality of the circumstances” approach. Any real uncertainty revolves around how much more the Court, and any separate opinions, might say.
But I want to address a more fundamental issue: whether this is properly thought of as a Fourth Amendment case at all.