Case: 22-20519 Document: 00517041854 Page: 1 Date Filed: 01/23/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 23, 2024
No. 22-20519
Lyle W. Cayce
____________
Clerk
Janice Hughes Barnes, Individually and as Representative of the
Estate of Ashtian Barnes, Deceased; Tommy Duane Barnes,
Plaintiffs—Appellants,
versus
Roberto Felix, Jr.; County of Harris, Texas,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-725
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Officer Roberto Felix, Jr., a traffic enforcement officer for the Harris
County Precinct 5 Constable’s Office, fatally shot Ashtian Barnes on April
28, 2016, following a lawful traffic stop. Appellants Janice Hughes Barnes and
Tommy Duane Barnes filed suit on behalf of Barnes, their son, asserting
claims against defendants Officer Felix and Harris County under
42 U.S.C. § 1983. The district court granted Defendants’ motion for summary judgment, finding no Fourth Amendment constitutional violation.
Faithful to this Circuit’s moment of threat doctrine, we AFFIRM.
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No. 22-20519
I.
A.
Officer Roberto Felix, Jr. fatally shot Ashtian Barnes on April 28,
2016, following a lawful traffic stop. The facts leading up to the shooting are
undisputed. At about 2:40 p.m., Officer Felix heard a radio broadcast from
the Harris County Toll Road Authority giving the license plate number of a
vehicle on the highway with outstanding toll violations. Spotting a Toyota
Corolla with the matching plate on the Tollway, he initiated a traffic stop by
engaging his emergency lights. Ashtian Barnes, the driver, pulled over to the
median on the left side of the Tollway out of the immediate traffic zone.
Officer Felix parked his car behind the Corolla.
Officer Felix approached the driver’s side window and asked Barnes
for his driver’s license and proof of insurance. Barnes replied that he did not
have the documentation and that the car had been rented a week earlier in his
girlfriend’s name. During this interaction, Barnes was “digging around” in
the car. Officer Felix warned Barnes to stop doing so and, claiming that he
smelled marijuana, asked Barnes if he had anything in the vehicle Officer
Felix should know about. In response, Barnes turned off the vehicle, placing
his keys near the gear shift, and told Officer Felix that he “might” have the
requested documentation in the trunk of the car. What happened next was
captured on Officer Felix’s dash cam. The district court found: 1
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1
“Much of the incident, including its unfortunate conclusion, was recorded by
video cameras. Although courts must construe evidence in light most favorable to the
nonmoving party, we will not adopt a plaintiff’s characterization of the facts where
unaltered video evidence contradicts that account.” Thompson v. Mercer, 762 F.3d 433, 435
(5th Cir. 2014) (citing Scott v. Harris,
550 U.S. 372, 381 (2007)).
2
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• At 2:45:28, Felix orders Barnes to open the trunk of his
vehicle. At this time, Barnes’s left blinker is still on,
indicating that the keys are still in the ignition.
• At 2:45:33, Barnes opens the trunk of the vehicle.
• At 2:45:36, Barnes’s left blinker turns off.
• At 2:45:43, Felix asks Barnes to get out of the vehicle.
• At 2:45:44, Barnes’s driver side door opens.
• At 2:45:47, Barnes’s left blinker turns back on.
• At 2:45:48, Felix draws his weapon.
• At 2:45:49, Felix points his weapon at Barnes and begins
shouting “don’t fucking move” as Barnes’s vehicle begins
moving.
At this point, Officer Felix stepped onto the car with his weapon
drawn and pointed at Barnes, and—as Appellants claim and as supported by
the footage—“shoved” his gun into Barnes’s head, pushing his head hard to
the right. Then, the car started to move. While the car was moving, Officer
Felix shot inside the vehicle with “no visibility” as to where he was aiming. 2
The next second, Officer Felix fired another shot while the vehicle was still
moving. After two seconds, the vehicle came to a full stop, and Officer Felix
yelled “shots fired!” into his radio. Officer Felix held Barnes at gunpoint
until backup arrived while Barnes sat bleeding in the driver’s seat. At 2:57
p.m., Barnes was pronounced dead at the scene.
The Homicide Division of the Houston Police Department
investigated and presented a report to the Harris County District Attorney’s
Office, who presented the report to a grand jury on August 26 and August 31,
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2
Officer Felix had “no visibility,” i.e., could not see into the car, because his head
was outside and above the roof of the car while he held on to the car frame.
3
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2016. The grand jury returned a “no bill;” that is, it found no probable cause
for an indictment. Harris County Precinct 5 Constable’s Office also
conducted an internal investigation and found that Officer Felix had not
violated its Standard Operating Procedures.
B.
Appellants Janice Hughes Barnes and Tommy Duane Barnes, Ashtian
Barnes’s parents, filed suit on December 29, 2017, in state court on behalf of
their son, asserting claims against defendants Officer Felix and Harris
County under 42 U.S.C. § 1983 and the Texas Tort Claims Act. 3 Defendants
removed the action to federal district court on March 7, 2018.
Defendants moved for summary judgment, arguing that Officer Felix
did not violate Barnes’s constitutional rights and was entitled to qualified
immunity. Defendants argued that because Officer Felix reasonably feared
for his life when Barnes’s vehicle was moving, it was reasonable to deploy
deadly force. In response, Plaintiffs argued Officer Felix’s use of force was
unreasonable because, even if Barnes attempted to flee the scene, he did not
pose a threat justifying deadly force.
The district court granted Defendants’ motion for summary judgment
and found that there was no genuine dispute of fact material as to
constitutional injury. First, the district court found that, although there were
some inconsistencies as to Officer Felix’s “motivations” for shooting
Barnes, the dash cam footage resolved all lingering genuine disputes of
material fact. According to the district court, “Plaintiffs have not cited any
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3
On appeal, Appellants have abandoned their claims under the Texas Torts Claims
Act.
4
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evidence that would obfuscate the events depicted in the dash cam
recording.” It explained:
[T]he dash cam footage shows that Felix did not draw his
weapon until Barnes turned his vehicle back on despite Felix’s
order to exit the vehicle. Regardless of whether Felix drew his
weapon before or after the vehicle started moving, Plaintiffs
offer no lawful explanation for Barnes turning his car back on
after Felix ordered him to exit the vehicle.
Second, the court found that Officer Felix’s actions prior to the
moment of threat, including that Officer Felix “jumped onto the door sill,”
had “no bearing” on the officer’s ultimate use of force. Third, the court
determined that the moment of threat occurred in the two seconds before
Barnes was shot. At that time, “[Officer] Felix was still hanging onto the
moving vehicle and believed it would run him over,” which could have made
Officer Felix “reasonably believe his life was in imminent danger.”
Ultimately, the district court found that because “Barnes posed a
threat of serious harm to Officer Felix” in the moment the car began to move,
Officer Felix’s use of deadly force was not excessive, “presumptively
reasonable under controlling Fifth Circuit precedent,” and did not cause a
constitutional injury. Finding no genuine dispute of material fact as to the
constitutional injury, the district court granted Officer Felix’s motion for
summary judgment. The district court also dismissed the claim against
Defendant Harris County. On August 8, 2022, the district court issued an
order clarifying that there was “no genuine issue of material fact as to
whether [Officer] Felix violated Barnes’s Fourth Amendment rights when he
pointed his firearm at Barnes[.]” 4
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4
Appellants only appeal the first grant of summary judgment, not the subsequent
August 8, 2022 order.
5
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Appellant Janice Hughes Barnes timely appealed on September 28,
2022, claiming: (1) the district court erred in concluding that there was no
dispute of material fact because there were inconsistencies between the dash
cam video and Felix’s own statements and testimony; and (2) the district
court erred in granting summary judgment because the facts as alleged were
sufficient to find that Officer Felix violated Barnes’s constitutional rights as
a matter of law.
Appellant Tommy Duane Barnes timely filed a separate, pro se brief
on February 7, 2023, incorporating “the findings of Adam Fomby” and
alleging claims near identical to those of Appellant Janice Barnes’s.
Defendants do not address Tommy Barnes’s pro se brief.
II.
On summary judgment, the movant must show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law;” the court reviews the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in its favor. 5
III.
Bound by this Circuit’s precedent, we affirm the district court’s order
holding that there is no genuine dispute of material fact as to constitutional
injury. As the district court explained, we may only ask whether Officer Felix
“was in danger ‘at the moment of the threat’ that caused him to use deadly
force against Barnes.” In this circuit, “it is well-established that the
excessive-force inquiry is confined to whether the officers or other persons
were in danger at the moment of the threat that resulted in the officers’ use
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5
FED. R. CIV. P. 56(a); see also Deville v. Marcantel, 567 F.3d 156, 163–64 (5th
Cir. 2009) (per curiam).
6
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of deadly force.” 6 This “moment of threat” test means that “the focus of
the inquiry should be on the act that led the officer to discharge his weapon.” 7
“Any of the officers’ actions leading up to the shooting are not relevant for
the purposes of an excessive force inquiry in this Circuit.” 8
The district court here determined that the moment of threat
occurred in the two seconds before Barnes was shot. At that time, “[Officer]
Felix was still hanging onto the moving vehicle and believed it would run him
over,” which could have made Officer Felix “reasonably believe his life was
in imminent danger.” Harmon v. City of Arlington presented a similar fact
pattern, in which an officer was perched on the running board of a runaway
vehicle when the officer shot the fleeing driver. 9 Finding no constitutional
violation, the opinion noted that the “brief interval—when [the officer] is
clinging to the accelerating SUV and draws his pistol on the driver—is what
the court must consider to determine whether [the officer] reasonably
believed he was at risk of serious physical harm.” 10 Similarly here, Officer
Felix was still hanging on to the moving vehicle when he shot Barnes. Under
Harmon’s application of our Circuit’s “moment of threat” test, Felix did not
violate Barnes’s constitutional rights. We focus on the precise moment of the
threat as required and affirm the district court’s judgment.
IV.
One of the required elements of a municipal liability claim is a showing
of a “violation of constitutional rights whose moving force is the policy or
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6
Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020).
7
Id. (cleaned up).
8
Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (cleaned up).
9
Harmon v. City of Arlington, 16 F.4th 1159, 1162 (5th Cir. 2021).
10
Id. at 1164.
7
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custom [of the municipality].” 11 As the district court found no constitutional
injury, it rightfully did not reach the Barnes’ municipal liability claim.
Finding no constitutional injury ourselves, we affirm the grant of summary
judgment to Harris County.
…
Faithful to Circuit precedent on the moment of threat analysis, we
AFFIRM the district court’s judgment.
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11
Horvath v. City of Leander, 946 F.3d 787, 793 (5th Cir. 2020) (citing Rivera v.
Hous. Indep. Sch. Dist.,
349 F.3d 244, 247 (5th Cir. 2003)).
8
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Patrick E. Higginbotham, Circuit Judge, concurring:
A routine traffic stop has again ended in the death of an unarmed black
man, and again we cloak a police officer with qualified immunity, shielding
his liability. The district court rightfully found that its reasonableness analysis
under the Fourth Amendment was circumscribed to the “precise moment”
at which Officer Felix decided to use deadly force against Barnes. I write
separately to express my concern with this Circuit’s moment of threat
doctrine, as it counters 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.
To these eyes, 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
interest of the individual, and of society, in judicial determination of guilt and
punishment.” 1 Tennessee v. Garner’s 2 stricture on the taking of a life only to
protect one’s life or the life of another is the baseline of the Supreme Court’s
later validation of pretextual stops in Whren v. United States, 3 and in the
following term Maryland v. Wilson, allowing an officer without more than
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1
Abraham v. Raso rejected reasoning in prior cases that prevented the court from
considering any of the circumstances before the exact moment deadly force is used:
We reject the reasoning . . . because we do not see how these cases can
reconcile the Supreme Court’s rule requiring examination of the “totality
of the circumstances” with a rigid rule that excludes all context and causes
prior to the moment the seizure is finally accomplished. “Totality” is an
encompassing word. It implies that reasonableness should be sensitive to
all of the factors bearing on the officer’s use of force.
183 F.3d 279, 288 (3d Cir. 1999).
2
471 U.S. 1, 21 (1985).
3
517 U.S. 806, 810 (1996).
9
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pretext to order the driver of the then lawfully stopped car to exit their
vehicle. 4 Sound on their face but unforeseen in their future came the reality
that these cases brought fuel to a surge of deadly encounters between the
police and civilians. 5 This reality makes plain the wisdom of Garner’s
baseline and that it ought not be further redrawn by refusing to look to the
totality of the circumstances when a stop leads to the taking of a life.
I.
Barnes was stopped for a traffic violation—his girlfriend’s rental car
had several outstanding toll tag violations, none of which are arrestable
offenses under Section 370.177 of the Texas Transportation Code. 6 While
Barnes was not then a fleeing felon at the moment Officer Felix deployed
deadly force, the starting point of the requisite Fourth Amendment analysis
must still be Garner, which announced the bedrock principle that it is
unreasonable for an officer to use deadly force to stop a fleeing suspect unless
the suspect poses an immediate physical danger to the officer or others. 7 To
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4
519 U.S. 408 (1997).
5
“Today, traffic stops and the use of deadly force are too often one and the same—
with Black and Latino drivers overrepresented among those killed—and have been
sanctioned by numerous counties and major police departments.” Crane v. City of
Arlington, No. 21-10644, 2022 WL 4592035, at *1 (5th Cir. Sept. 30, 2022) (citation
omitted); Sam Levin, US Police Have Killed Nearly 600 People in Traffic Stops Since 2017,
Data Shows, GUARDIAN (Apr. 21, 2022), https://www.theguardian.com/usnews/2022/apr/21/us-police-violence-traffic-stop-data.
6
TEX. TRANSP. CODE ANN. § 370.177 (“[T]he operator of a vehicle, other than an
authorized emergency vehicle as defined by Section 541.201, that is driven or towed
through a toll collection facility of a turnpike project shall pay the proper toll. The operator
of a vehicle who drives or tows a vehicle through a toll collection facility and does not pay
the proper toll commits an offense. An offense under this subsection is a misdemeanor
punishable by a fine not to exceed $250.”)
7
471 U.S. at 21.
10
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assess whether Officer Felix was justified in his use of deadly force, Garner
requires this Court to look to the “totality of circumstances.” 8 Yet we do not.
We, and three of our sister 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. 9 “[Our] excessive force inquiry is confined to whether the
[officer] was in danger at the moment of the threat that resulted in the
[officer]’s shooting. 10 Under this “moment of threat” doctrine, courts are
prohibited from looking to “what has transpired up until the moment of the
shooting itself[;]” 11 instead, the sole focus is on “the act that led the officer[]
to discharge his weapon.” 12 The moment of threat doctrine trims Garner
with predictable results: by cabining the Court’s analysis, it turns to the issue
of qualified immunity after eliding the reality of the role the officers played in
bringing about the conditions said to necessitate deadly force. “Necessity,”
either to protect an officer or another, requires that we be sensitive to all of
the circumstances bearing on an officer’s use of force. Revisiting our
Circuit’s precedents on the moment of threat would only return this Circuit
to Garner’s metric of necessity—a totality of the circumstances.
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8
Id. at 9.
9
The district court found “‘the moment of the threat’ occurred after Felix jumped
onto the door sill about 2:45:50, in the two seconds before Felix fired his first shot.”
10
Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001) (citing
Fraire v. City of Arlington,
957 F.2d 1268, 1276 (5th Cir. 1992)).
11
Fraire, 957 F.2d at 1267.
12
Amador v. Vasquez, 961 F.3d 721, 728 (5th Cir. 2020).
11
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II.
The Fifth Circuit’s approach to the reasonableness analysis is the
minority position, joined by the Second, Fourth, and Eighth Circuits. Indeed,
a majority of circuits have adopted a distinct framework for assessing the
reasonableness of an officer’s use of deadly force. 13
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13
See, e.g., St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995) (“We first
reject defendants’ analysis that the police officers’ actions need be examined for
‘reasonableness’ under the Fourth Amendment only at the moment of the shooting. We
believe that view is inconsistent with Supreme Court decisions and with the law of this
Circuit.”); Carswell v. Borough of Homestead,
381 F.3d 235, 243 (3d Cir. 2004) (“All of the
events leading up to the pursuit of the suspect are relevant.”); Abraham v. Raso,
183 F.3d
279, 292 (3d Cir. 1999) (considering the totality of circumstances even in the context of
deadly force); Kirby v. Duva,
530 F.3d 475, 482 (6th Cir. 2008) (“Where a police officer
unreasonably places himself in harm’s way, his use of deadly force may be deemed
excessive.”); Est. of Starks v. Enyart,
5 F.3d 230, 234 (7th Cir. 1993) (“If a fleeing felon is
converted to a ‘threatening’ fleeing felon solely based on the actions of a police officer, the
police should not increase the degree of intrusiveness.”); Vos v. City of Newport Beach,
892
F.3d 1024, 1034 (9th Cir. 2018) (“While a Fourth Amendment violation cannot be
established ‘based merely on bad tactics that result in a deadly confrontation that could
have been avoided,’ the events leading up to the shooting, including the officers [sic]
tactics, are encompassed in the facts and circumstances for the reasonableness analysis.”)
(internal citations omitted); Fogarty v. Gallegos,
523 F.3d 1147, 1159–60 (10th Cir. 2008)
(“[W]e must pay ‘careful attention’ to factors such as ‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers and others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.’ We also
consider whether an officer’s own ‘reckless or deliberate conduct’ in connection with the
arrest contributed to the need to use the force employed.”) (citations omitted) (internal
citation omitted) (cleaned up); Ayers v. Harrison,
650 F. App’x 709, 719 (11th Cir. 2016)
(“Officer Harrison’s argument that our precedent precluded Ms. Ayers from advancing an
‘officer created danger’ theory at trial is both factually and legally incorrect.”); Wardlaw v.
Pickett,
1 F.3d 1297, 1303 (D.C. Cir. 1993) (“[W]hatever the circumstances prompting law
enforcement officers to use force, whether it be self-defense, defense of another or
resistance to arrest, where, as here, a fourth amendment violation is alleged, the inquiry
remains whether the force applied was reasonable.”). But see Salim v. Proulx,
93 F.3d 86,
92 (2d Cir. 1996) (“Officer Proulx’s actions leading up to the shooting are irrelevant to the
objective reasonableness of his conduct at the moment he decided to employ deadly
force.”); Waterman v. Batton,
393 F.3d 471, 477 (4th Cir. 2005) (“The reasonableness of
the officer’s actions in creating the dangerous situation is not relevant to the Fourth
12
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Whether an officer’s use of force was excessive is “necessarily [a]
fact-intensive” endeavor that “depends on the facts and circumstances of
each particular case.” 14 As the Supreme Court observed in Scott v. Harris,
the Fourth Amendment analysis is necessarily a “factbound morass of
reasonableness.” 15 Yet the moment of threat doctrine starves the
reasonableness analysis by ignoring relevant facts to the expense of life. The
case before us is paradigmatic: we are prohibited from considering Officer
Felix’s decision to jump onto the sill of the vehicle with his gun already
drawn, and—in the span of two seconds—his decision to elevate and fire his
handgun into the vehicle—this for driving with an outstanding toll violation.
Officer Felix’s role in escalating the encounter is “irrelevant” in our Circuit.
If the moment of threat is the sole determinative factor in our
reasonableness analysis, references to our supposed obligation to consider
the totality of circumstances are merely performative. 16 Isolating the policecivilian encounter to the moment of threat begs the Garner question. That is,
the moment of threat approach removes the consideration of the entire
_____________________
Amendment analysis; rather, reasonableness is determined based on the information
possessed by the officer at the moment that force is employed.”) (citations omitted); Banks
v. Hawkins, 999 F.3d 521, 525–26 (8th Cir. 2021), cert. denied,
142 S. Ct. 2674 (2022) (“In
any event, we evaluate the reasonableness of Hawkins’s conduct by looking primarily at the
threat present at the time he deployed the deadly force.”) (citation omitted).
14
Amador, 961 F.3d at 727 (quoting Darden v. City of Fort Worth, Tex., 880 F.3d
722, 728 (5th Cir. 2018)).
15
550 U.S. 372, 383 (2007) (cleaned up).
16
See id. at 728 (“Considering the totality of the circumstances, focusing on the act
that led the officers to discharge their weapons, and without reviewing the district court’s
decision that genuine factual disputes exist, see Kinney v. Weaver, 367 F.3d 337, 348 (5th
Cir. 2004), we conclude that the genuine issues of material fact identified by the district
court are material, and this case should proceed to trial.”).
13
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circumstances required by Garner, including the gravity of the offense at
issue.
III.
Here, 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. 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. This case should
have enjoyed full review of the totality of the circumstances. 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. It is time for this Court to revisit this doctrine, failing that, for the
Supreme Court to resolve the circuit divide over the application of a doctrine
deployed daily across this country.
14
