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SCOTUS hears argument on the applicability of the “moment of the threat” doctrine in deadly force cases

1/29/25

By: Cara M. Wright

On January 22, 2025, the Supreme Court heard an oral argument in Barnes v. Felix. The Supreme Court granted certiorari on the question of whether the moment of threat doctrine should be applied to cases evaluating use of force under the Fourth Amendment as opposed to the “totality of the circumstances” advocated by the plaintiff. 

In Barnes, the defendant officer initiated a traffic stop after hearing a radio broadcast giving the license plate number of a vehicle on the highway with outstanding toll violations, a non-arrestable offense under the applicable Texas Transportation Code. The officer approached the vehicle and requested the driver’s license and proof of insurance. The driver, who was “digging around” in the car, responded that he did not have the documents. The officer indicated that he smelled marijuana and asked the driver to get out of the vehicle. Although the driver’s door of the vehicle opened, the driver did not get out. The officer pointed his weapon and began shouting “don’t [explicative] move” as the vehicle began moving. At that point, the officer stepped onto the running board of the vehicle and shoved his gun into the side of the driver’s head. The vehicle started to move and the officer fired, shooting the driver. Two seconds elapsed between the officer stepping onto the running board and shots being fired. The driver ultimately died as a result of his injuries. 

The district court granted summary judgment in favor of the officer and the Fifth Circuit affirmed. Applying the moment of the threat doctrine, the Fifth Circuit held that at the time deadly force was utilized, the officer was hanging onto a moving vehicle, believed it would run him over, and reasonably believed his life was in imminent danger. Consequently, “faithful to Circuit precedent on the moment of the threat” the Fifth Circuit affirmed the district court’s decision that the use of deadly force did not violate the Constitution. 

Judge Higginbotham concurred in the judgment of the court, but wrote separately to express his “concern with [the Fifth Circuit’s] moment of the threat doctrine.” Judge Higginbotham expressed his belief that the moment of threat doctrine “counters the Supreme Court’s instruction to look to the totality of the circumstances when assessing the officer’s use of deadly force.” He further asserted that “blinding 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 interests of the individual, and of society, in judicial determination of guilt and punishment.” Judge Higginbotham further concluded that “given the rapid sequence of events and [the officer’s] role in drawing his weapon and jumping on the running board, the totality of the circumstances merits finding that [the officer] violated [the driver’s] Fourth Amendment right to be free from excessive force.” 

The justices were very involved during the oral argument and asked many pointed questions related to the application of the moment of the threat doctrine and the application of the totality of the circumstances analysis. The justices also questioned the difficulty of drawing lines and determining an objective standard that could be fairly applied and provide adequate guidance to law enforcement.  

It is anticipated that the Supreme Court will issue its decision on this case in the coming months. The Court’s decision on this issue could have far-ranging implications on the standard to apply to cases involving the use of force. This decision is one to watch for in the coming months. We will report back on the results as soon as the opinion comes out.   

For more information, please contact Cara M. Wright at cara.wright@fmglaw.com or your local FMG attorney.