Legal Docket: Police use of force

NICK EICHER, HOST: It’s The World and Everything in It for this 17th day of February, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

April 28th, 2016. Twenty minutes before 3 o’clock on a Thursday afternoon. Twenty-year veteran Officer Roberto Felix patrols the busy Sam Houston Tollway in Houston, Texas.

EICHER: Audio from the dashcam video is difficult to distinguish because of the enormous road noise.

Officer Felix pulls over a 24-year-old driver named Ashtian Barnes. The policeman suspects Barnes is responsible for unpaid tolls.

DASHCAM: “Driver’s license?” Radio chirping

REICHARD: The officer asks Barnes to produce a license and proof of insurance. Barnes says he doesn’t have them but looks around the car to search for them.

DASHCAM: “Don’t dig around! Don’t! Dig around. Don’t dig around.”

EICHER: The car door opens, the brake lights appear ,and at that moment, the officer draws his weapon, and steps up onto the door sill as the car lurches forward, the officer carried along.

DASHCAM: “Don’t [expletive] move! Don’t [expletive] move!”

Shots, loud ringing sound from radio, “Shots fired! Shots fired!”

REICHARD: Two shots fired.

Barnes bleeds to death in the driver’s seat.

There’s no video of what happened inside the car. Only outside.

EICHER: Barnes’s parents are heartbroken. The audio from Fox26 Houston.

BARNES: Ashtian was a very lovely…(breaks down)...I can’t talk about it…I never thought I would go through anything like this. Days I drive and cry.

His parents sued, pointing to the words of the Fourth Amendment, alleging the officer took away their son’s freedom from unreasonable search and seizure.

But lower courts ruled for Officer Felix. The standard they used was what’s known as the “moment of threat” doctrine.

That’s the standard some parts of the country use including Houston. It means judges evaluate how reasonable the officer’s actions are in the exact moment he felt threatened.

REICHARD: Let’s review the dashcam.

The car door opens. The brake lights flash on, meaning it’s likely Ashtian Barnes is stepping on the brakes to put the car in gear.

The brake lights go off. The car accelerates, Officer Felix standing on the door sill out in the open, traffic whizzing by both directions.

EICHER: So how do you evaluate the next few seconds? Should courts consider only the moment of threat … or do they take into account whether Felix put himself in danger?

Four of the 12 federal appeals courts apply the “moment of threat” doctrine—including the Fifth Circuit, which decided the Felix case. Eight others reject it, favoring a broader “totality of the circumstances” approach.

ROBERTS: We'll hear argument first this morning in Case 23-1239, Barnes versus Felix.

REICHARD: Taking the case to the Supreme Court, Ashtian’s mother says what led up to the shooting has to be on the table.

Context matters. She argues that when an officer creates a dangerous situation, he should not be able to then use that danger to justify deadly force.

Her lawyer, Nathaniel Zelensky, referred to a lower court ruling:

ZELENSKY: The question before this Court is how to determine whether Ashtian's Fourth Amendment rights were violated….P 5 …on tape 1:48: as Judge Higginbotham underscored in his concurrence, the facts show that Officer Felix acted unreasonably. But this is a court of review, not of first view. The Court should rule for Petitioner on the sole question presented and remand for the lower courts to apply the correct constitutional standard.

The correct standard being “totality of the circumstances.”

But for Officer Felix, lawyer Charles McCloud defended the analysis of the lower court.

MCCLOUD: At the moment Sergeant Felix used force, he was clinging to the side of a fleeing suspect's car, and Felix reasonably believed that his life was in imminent danger. That conclusion should end this case. Petitioner's contrary argument attacks a strawman. Let me be very clear. We are defending the decision below and the "moment of threat" doctrine as it actually exists. The core premise of that doctrine is that an officer doesn't lose his right to defend himself just because he made a mistake at an earlier point in time.

EICHER: During oral argument, the Justices grappled with these competing perspectives.

When the lawyer for the family made the point that courts ought not limit their analysis to a split-second, Justice Brett Kavanaugh returned to the traffic stop. But backed up a few seconds in the deadly timeline.

KAVANAUGH: Was it reasonable to --for the officer to jump on the side of the car?

ZELENSKY: So, uh, Ju, uh…

Zelensky going on to argue that this was exactly the kind of issue lower courts ought to be able to consider. But under the current doctrine in some jurisdictions, they can’t.

Justice Samuel Alito raised another concern.

ALITO: So "unreasonable" has a particular meaning when the Court has to decide whether there was a Fourth Amendment violation. But, in lay speech, "unreasonable" could go to whether the action was prudent, whether it was a violation of best police practices or the practices of a particular police department. Those are not necessarily the same thing. In fact, it seems that they're probably different. So you are eliding these two different meanings of "reasonable." Now maybe that's --maybe that's sound. Maybe that's unsound.

REICHARD: Zelensky replied we need to balance the state’s interest to enforce law with the individual’s interest not to be harmed. “Moment of threat” analysis doesn’t permit that kind of balancing.

But what about totality-of-circumstances? How far does that standard go? Chief Justice John Roberts.

ROBERTS: How broad is the totality of circumstances under your view? Do you get to put in: This is the training record of the officer, and, look, he got D minuses in all the—the excessive force parts of it?

McCLOUD: No.

ROBERTS: I mean, is that part of the totality as you view it?

McCLOUD: No, Your Honor. We don't view that as relevant. Those sorts of policies and --and procedures do not inform the reasonableness question that is being asked by the Fourth Amendment.

EICHER: An unusual thing happened as this case got to the Supreme Court. Felix’s legal team abandoned the “moment of threat” doctrine that won them the case so far. They went ahead and shifted their argument and now embrace a “totality of circumstances” analysis.

So both sides now argue for the same standard … but that’s still not the end of the case. They disagree on how the standard applies.

REICHARD: Justice Neil Gorsuch raised an even bigger question:

GORSUCH: We’ve always said, reasonableness is a totality of the circumstances. And, at common law, these are all questions for the jury. And you also have layered on top of the Fourth Amendment qualified immunity to protect the officers in these cases. Why would we start creating a new jurisprudence of exceptional circumstances?

Qualified immunity is a whole other can of worms.

That doctrine protects police officers from lawsuits unless they violate what are understood to be “clearly established” constitutional rights.

What’s clear, what’s established—it’s complicated. I called up lawyer Ben Field with the Institute for Justice. That’s a firm that’s worked on the problem of qualified immunity leaving people without recourse when police violate their rights.

FIELD: I think that one thing that this shows is that at least in Fourth Amendment cases like this, qualified immunity is kind of doing double duty here, because the Fourth Amendment test looks into reasonableness. And so that's already very, very deferential to officers.

Field thinks the justices will send the case back to lower court to apply the totality of the circumstances standard to the facts of this case. I think that’s right, given that both sides now agree on the standard. But it’s going to come down to how it applies.

ROBERTS: Thank you, counsel. The case is submitted.

This case is not just about one police officer and one suspect. It’s about how courts analyze police shootings nationwide. There is no uniform standard and the court is likely finally to provide one.

And that’s this week’s Legal Docket.

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