A Texas Cop Endangered Himself by Jumping Onto a Moving Car. Then He Shot the Driver.

The Supreme Court will review a 5th Circuit decision that let the officer off the hook without considering the recklessness that turned a routine traffic stop into a deadly encounter.

On a Thursday afternoon in April 2016, a 24-year-old man named Ashtian Barnes was driving his girlfriend's rental car on the Sam Houston Tollway in Harris County, Texas, when he was pulled over by a traffic enforcement officer. The officer, Roberto Felix Jr., stopped Barnes because the license plate of the rental car had been linked to toll violations by another driver. About three minutes into the stop, Barnes began to drive away. Felix reacted by jumping onto the door sill of the car with his gun drawn. Within two seconds, perceiving a threat to himself as the car accelerated, Felix fatally shot Barnes.

The offenses that led to the traffic stop, which had not even been committed by Barnes, were trivial, and Felix himself created the danger to which he responded by killing Barnes. That use of deadly force was plainly unreasonable, Barnes' mother, Janice Hughes Barnes, argued in a federal civil rights lawsuit against Felix.

Although that conclusion might seem like a no-brainer, a federal judge dismissed the case, and the U.S. Court of Appeals for the 5th Circuit upheld that decision last January. Both courts were bound by 5th Circuit precedent to focus on "the moment of the threat" that Felix confronted, ignoring both the nature of the stop and the officer's recklessness in jumping onto the car. On Friday, the U.S. Supreme Court agreed to decide whether that approach, which has been embraced by four circuits and rejected by eight, is consistent with the Fourth Amendment.

In the 1985 case Tennessee v. Garner, which involved a suspected burglar, Edward Garner, who was shot while fleeing police, the Supreme Court held that the use of deadly force is unconstitutional in such circumstances "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." To assess whether a use of force is "objectively reasonable" under the Fourth Amendment, the Court explained four years later in Graham v. Connor, judges should consider "the totality of the circumstances," paying "careful attention to the facts and circumstances of each particular case." The Court said relevant factors include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."*

Like Garner, Barnes was unarmed and did not plausibly pose "a significant threat of death or serious physical injury" to the general public. And unlike Garner, Barnes was not suspected of a felony or even an arrestable offense. Under the 5th Circuit's "moment of threat" standard, however, those circumstances were irrelevant. So was everything that happened before the two seconds in which Felix decided to shoot Barnes.

When Felix turned on his emergency lights, Barnes pulled over to the median on the left side of the tollway. Felix parked behind Barnes and approached the driver's side window. When Felix asked for Barnes' driver's license and proof of insurance, the 5th Circuit noted, "Barnes replied that he did not have the documentation and that the car had been rented a week earlier in his girlfriend's name." Seeing Barnes "digging around" in the car, Felix told him to stop. Claiming to smell marijuana (which a subsequent search did not find), Felix asked if Barnes had anything illegal in the car, at which point Barnes "turned off the vehicle, placing his keys near the gear shift." Barnes "told Officer Felix that he 'might' have the requested documentation in the trunk of the car."

Dash camera video showed what happened next. Felix ordered Barnes to pop the trunk, which he did. Felix asked Barnes to get out of the car, and Barnes opened the driver's side door. But then Barnes restarted the car, prompting Felix to draw his gun, point it at Barnes and say "don't fucking move." As the car began moving, Felix "stepped onto the car with his weapon drawn and pointed at Barnes," "'shoved' his gun into Barnes's head, pushing his head hard to the right," and fired two shots. When the car stopped, Felix "held Barnes at gunpoint until backup arrived [about two minutes later] while Barnes sat bleeding in the driver's seat."

One question raised by Barnes v. Felix, U.S. District Judge Alfred Bennett noted in 2021, is "whether the Court can consider the officer's conduct precipitating the shooting—which included jumping onto a moving vehicle and blindly firing his weapon inside—in determining whether the officer used excessive force in violation of the Fourth Amendment." Under 5th Circuit precedent, he concluded, "the answer is no."

Bennett was not happy with that answer. "By limiting the focus of the judicial inquiry so narrowly as to only examine the precise moment the officer decided to use deadly force," he wrote, "the Fifth Circuit has effectively stifled a more robust examination of the Fourth Amendment's protections when it comes to encounters between the public and the police." He urged the appeals court to "consider the approach applied by its sister courts," which makes it possible to "hold officers accountable when their conduct has directly resulted in the need for deadly force and infringed upon the rights secured by the Fourth Amendment."

In a 2022 ruling, Bennett considered only Felix's decision to draw his gun and point it at Barnes, which he deemed reasonable given that Barnes had restarted his car rather than exiting it as instructed. "The only issue before the Court today was Felix's decision to brandish his gun, not his decision to shoot it," Bennett wrote. But he again urged the 5th Circuit to "review its very narrow approach to deadly force claims."

Judge Patrick Higginbotham, who wrote the 5th Circuit panel opinion upholding the dismissal of Barnes v. Felix, took the extraordinary step of writing a separate concurrence to elaborate on the problems with that "very narrow approach." Bennett "rightfully found that [his] reasonableness analysis under the Fourth Amendment was circumscribed to the 'precise moment' at which Officer Felix decided to use deadly force against Barnes," he wrote. But he argued that "this Circuit's moment of threat doctrine" flouts "the Supreme Court's instruction to look to the totality of the circumstances when assessing the reasonableness of an officer's use of deadly force."

Expressing dismay that "a routine traffic stop has again ended in the death of an unarmed black man," Higginbotham warned that ignoring "an officer's role in bringing about the 'threat' precipitating the use of deadly force lessens the Fourth Amendment's protection of the American public, devalues human life, and 'frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.'" He noted that Garner's restrictions on the use of deadly force are especially important in light of subsequent Supreme Court rulings that approved pretextual traffic stops and allowed officers to order drivers out of their cars during any legally justified stop. Those decisions, he said, "brought fuel to a surge of deadly encounters between the police and civilians." Given that reality, he argued, it is reckless to undermine Garner by "refusing to look to the totality of the circumstances when a stop leads to the taking of a life."

The 5th Circuit and three other appeals courts "have narrowed the totality of circumstances inquiry by circumscribing the reasonableness analysis of the Fourth Amendment to the precise millisecond at which an officer deploys deadly force," Higginbotham wrote. "The moment of threat doctrine trims Garner with predictable results…eliding the reality of the role [an officer] played in bringing about the conditions said to necessitate deadly force."

But for that doctrine, Higginbotham said, it would be clear that Felix violated the Fourth Amendment. "Given the rapid sequence of events and Officer Felix's role in drawing his weapon and jumping on the running board, the totality of the circumstances merits finding that Officer Felix violated Barnes's Fourth Amendment right to be free from excessive force," he wrote. "This officer stepped on the running board of the car and shot Barnes within two seconds, lest he get away with driving his girlfriend's rental car with an outstanding toll fee. It is plain that the use of lethal force against this unarmed man preceded any real threat to Officer Felix's safety—that Barnes's decision to flee was made before Officer Felix stepped on the running board. His flight prompted Officer Felix to jump on the running board and fire within two seconds."

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," Higginbotham concluded. "It is time for this Court to revisit this doctrine, [or] failing that, for the Supreme Court to resolve the circuit divide over the application of a doctrine deployed daily across this country."

That is what Janice Hughes Barnes is asking the Supreme Court to do. In two previous cases, her petition notes, the Court dodged the issue of how Garner and Graham apply when an officer uses deadly force after endangering himself. But during oral argument in one of those cases, Justice Sonia Sotomayor explained that a court should "look at everything the officer and the victim did that led up to the moment of confrontation." Justice Samuel Alito likewise assumed that "if an officer jumps in front of—or in this case onto—a moving vehicle, 'you look at the entire seizure, the jumping in front of the car plus the ultimate shooting, to determine whether it's reasonable.'"

Barnes "was no threat," his mother's lawyers note. "The threat that Officer Felix faced from the moving vehicle was the immediate consequence of his unreasonable act of
jumping onto the car. Officer Felix should bear responsibility for the foreseeable result of his own actions."

*CORRECTION: The original version of this article conflated Garner's holding with Graham's elaboration.