Nahmod Law

[You may have noticed that it’s been a while since my last post. That’s because I’ve been working on the 2025-26 Update to my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West)(Westlaw). But the Update is almost done (it will be published in early fall), so here is a post on a new and important section 1983 Fourth Amendment case recently handed down.]

The Issue in Barnes v. Felix

The Supreme Court in Barnes v. Felix, 146 S. Ct. – (2025), rev’g, 91 F.4^th 393 (5^th Cir. 2024), resolved a circuit split on the question of whether the “reasonableness” inquiry set out in Graham v. Connor for Fourth Amendment excessive force cases requires a “totality of the circumstances” approach, as a majority of the circuits had ruled, or whether the “moment of the threat” approach–under which the focus should be on the time when the officer’s safety was threatened and not on events that preceded the threats—was the proper one. Reversing the Fifth Circuit which had applied the “moment of the threat” approach, the Court ruled that the “totality of the circumstances” approach was the correct one.

In Barnes, the defendant county law enforcement officer fatally shot the plaintiff’s decedent following a lawful traffic stop. Plaintiff sued the officer and county under section 1983 alleging Fourth Amendment excessive force claims. The suit was filed in state court and then removed to federal court, where the district court granted the defendants’ motion for summary judgment on the ground that there was no constitutional injury. It rejected the plaintiff’s argument that the officer’s use of force was unreasonable because, even if the decedent attempted to flee the scene, he did not pose a threat to the officer. The district court also declared that the officer’s actions prior to the moment of threat had no bearing on the constitutionality of the officer’s ultimate use of force.

The decedent had been stopped by the officer because the decedent was driving a car with outstanding toll violations; he was then asked for his driver’s license and proof of insurance. During the course of the encounter, the officer requested that the decedent open the trunk of his car and get out of his car; the door on the driver’s side opened; the car’s left blinker turned off and then on; the officer drew his weapon, pointed it at decedent and began shouting “don’t fucking move” as the car began moving; the officer then stepped into the car with his weapon drawn and pointed it at decedent, pushing his head hard to the right. As the car moved, the officer shot inside the car with “no visibility” as to where he was shooting. He fired a second shot, and the car came to a complete stop, with the bleeding decedent held at gunpoint by the officer. Decedent was pronounced dead at the scene.

The Fifth Circuit affirmed the district court in an opinion by Judge Higginbotham on the ground that the moment of threat occurred in the two seconds before decedent was shot: the officer was still hanging onto the moving car and believed it would run him over. Judge Higginbotham also concurred in his own opinion, arguing that the moment of the threat doctrine was an “impermissible gloss” on Graham and that the Fifth Circuit should either revisit its precedents or the Supreme Court should resolve the circuit split on this issue.

The Supreme Court’s Unanimous Decision

The Supreme Court unanimously reversed in an opinion by Justice Kagan. It rejected the moment of the threat approach as “improperly narrowing the requisite Fourth Amendment analysis.” Instead, under its Fourth Amendment excessive force precedents, “a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” This was the required “fact-dependent and context-sensitive approach.” It explained that this approach has no time limit, even though typically the precise situation at the moment of the use of force is what will matter most. However, in the case before it, the district court and the Fifth Circuit had apparently (and erroneously) looked “only to a two-second snippet of the encounter.” Accordingly, the Court vacated the judgment of the Fifth Circuit and remanded for further proceedings.

The Concurrence: Signaling

Justice Kavanaugh, joined by Justices Thomas, Alito and Barrett, concurred. Perhaps signaling to judges and attorneys how cases like Barnes should be decided, he noted that he wrote separately to address “the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of a stop.” Among other things, he pointed out that police officers in these circumstances cannot assume that any traffic stop will be safe. He also noted that a driver who speeds away can create serious dangers to the officer and people nearby. “[W]hen a driver abruptly pulls away during a traffic stop, an officer has no good or safe options.” Consequently, the reasonableness assessment must take account of the officer’s need for split-second decision making even under the “totality of the circumstances” approach.

Comments

The Supreme Court soundly rejected the “moment of the threat” approach in Barnes. The choice between the “moment of the threat” approach and the “totality of the circumstances” approach will frequently determine whether there was a Fourth Amendment excessive force violation in the first place. This is so because all-too-often drivers stopped for relatively minor traffic-related offenses are tragically shot by officers who sometimes overreact to a threat of danger that they themselves have brought about. At the very least, this should be a factor in determining whether the officer used deadly force under the “totality of the circumstances” approach.

To the argument that this puts officers at undue risk in split-second decision making situations, the response is that qualified immunity is still available to officers. As discussed in Chapter 8 of my Treatise, even if their conduct violated the Fourth Amendment, their use of deadly force must have also violated clearly settled Fourth Amendment law at the time of the challenged conduct in order for them to be liable in damages. Overcoming qualified immunity is often quite difficult.

Note that the Court in Barnes expressly acknowledged that it did not discuss just how an officer’s own “creation of a dangerous situation” is relevant to the reasonableness analysis. This, the Court said, is a question different from the timing question in Barnes. In this connection, the Court commented that it had similarly left this very question open in its proximate cause decision in County of Los Angeles v. Mendez, 581 U.S. 420 (2017), analyzed at §3:108 of my Treatise, which rejected the Ninth Circuit’s provocation rule in an excessive force case.