THE MOMENT OF THREAT: SOME STATES GET A DIFFERENT FOURTH AMENDMENT

Author: Matthew F. Carlin, Associate Editor

It started as a routine traffic stop. It didn’t end as one.

It was April 2016, and a traffic enforcement officer in Harrison County, Texas, was patrolling a local tollway when he received a radio broadcast that a prohibited vehicle had entered the tollway.[i] It was around 2:30 p.m.[ii] Dutifully, the officer responded, tracked down, and pulled over the car—a Toyota Corolla.[iii] Inside the Corolla was the driver, Ashtian Barnes, a twenty-four-year-old Black man. The officer approached the Corolla and asked for Ashtian’s license and registration.[iv] After rummaging through papers scattered in the Corolla, Ashtian failed to produce them.[v] The officer smelled marijuana during this time, and asked Ashtian to turn off the car and pop the trunk.[vi]

The officer then, with hand on holster, asked Ashtian to step out of the Corolla. But Ashtian instead put the car keys back into the ignition and started the car.[vii] This prompted the officer to draw his firearm.[viii] As Ashtian began to accelerate to drive away, the officer jumped onto the driver’s car door sill and twice yelled, “Don’t f***king move!”[ix] Ashtian did not stop, and the officer, still positioned dangerously on the moving car, pointed his firearm into the Corolla and fired twice.[x] About two seconds passed from when the officer jumped on the car until shots were fired.[xi] After the second shot, the vehicle came to a stop.[xii]  Ashtian, though shot, was still alive. The officer kept him at gunpoint until backup arrived and, once it did, Ashtian succumbed to his injury.[xiii] He was pronounced dead at the scene[xiv]

In the aftermath of Ashtian’s death, his family members brought a deadly force claim in the Southern District of Texas against the officer and Harrison County: Barnes v. Felix. [xv] The claim was dismissed on summary judgment in March, 2021. [xvi]

In the deadly force claim, the District Court used the Fifth Circuit’s “moment of threat” test for evaluating whether the officer had a reasonable belief that deadly force was necessary.[xvii] In that test, the court asks “whether the officer or another person was in danger at the moment of the threat that resulted in the officer's use of deadly force.”[xviii] This analysis does not take into account the sequence of events leading up to the shooting.[xix] Rather, it narrows the relevant reasonableness analysis to only the moment just before the gun was fired, and considers whether that snapshot scenario could give the officer a reasonable belief that there was a threat of physical harm.[xx] In the Fifth Circuit, so long as the officer reasonably believed the suspect posed a threat of serious harm to anyone, an officer’s use of deadly force is presumed reasonable.[xxi] It was under this test that the officer who shot Ashtian was found to have a presumptively reasonable belief that he was in danger of physical harm based on Ashtian continuing to drive the car, with the officer perched precariously on the door sill, instead of stopping in response to the officer’s commands (i.e., the court-identified moment relevant for the inquiry).[xxii]

The Fifth Circuit affirmed the District Court’s use of the moment of threat analysis,[xxiii] and Judge Patrick E. Higginbotham, while concurring with the outcome based on Circuit precedent, wrote separately to discuss his displeasure with the moment of threat test.[xxiv] To Higginbotham, discarding what a police officer may have contributed to the escalation of events prior to the court-identified moment of the threat impermissibly limits the reasonableness inquiry, and is a possible Fourth Amendment infringement.[xxv] His argument is that it is an inadvisable stray from the Supreme Court’s guidance in Tennessee v. Garner to use a totality of the circumstances test when assessing use of deadly force justifications.[xxvi] The totality test would allow for a more critical assessment of law enforcement’s conduct leading up to a decision to shoot someone—a “seizure” under Fourth Amendment jurisprudence.[xxvii]

Higginbotham is not alone in this conviction. In fact, the moment of threat test is a minority position, joined only by the Second, Fourth, and Eighth Circuits.[xxviii] The rest of the circuits apply the totality of the circumstances test referenced in Garner.[xxix]

Of its several clauses, the Fourth Amendment protects citizens against unreasonable excessive force under its Search and Seizure Clause.[xxx] The way the “moment of the threat” test may compromise Fourth Amendment protections, as Judge Higginbotham suggests, is that it “starves the [Fourth Amendment’s] reasonableness analysis,” limiting the Fourth Amendment’s functional protection of citizens against the state’s use of deadly force in these four circuits.[xxxi] In the rest of the country, the Fourth Amendment operates in a more robust fashion where, in cases like Ashtian’s, a court could consider the officer’s decision to jump up on the car’s sill when determining whether the ultimate deadly force—the seizure—was reasonable.[xxxii]

If the Fifth Circuit were to apply a totality of the circumstances test for reasonableness, it is arguable this decision could have gone differently.[xxxiii] The officer’s decision to use lethal force could be considered as preceding Ashtain’s decision to drive away.[xxxiv] The officer’s series of decisions building up to that relevant “moment” inquiry can serve to undermine whether it was reasonable to apply deadly force.[xxxv] In most states, it could be unreasonable.[xxxvi] But in four circuits, it is all too easily reasonable.[xxxvii]

Hopefully, as Judge Higginbotham desires, the Supreme Court can step in to rectify this circuit split over a pressing disparity in Fourth Amendment jurisprudence.[xxxviii]

[i] Barnes v. Felix, 532 F. Supp. 3d 463, 466 (S.D. Tex. 2021), aff’d, 91 F.4th 393 (5th Cir. 2024).

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] Barnes v. Felix, 532 F. Supp. 3d 463, 466 (S.D. Tex. 2021), aff’d, 91 F.4th 393 (5th Cir. 2024).

[viii] Barnes v. Felix, No. 4:18-CV-725, 2022 WL 5239297, *1 (S.D. Tex. Sept. 29, 2022), aff’d, 91 F.4th 393 (5th Cir. 2024).

[ix] Barnes v. Felix, 532 F. Supp at 467 (S.D. Tex. 2021).

[x] Id.

[xi] Barnes v. Felix, 91 F.4th 393, 396 (5th Cir. 2024).

[xii] Barnes v. Felix, 532 F. Supp. 3d 463, 466 (S.D. Tex. 2021), aff’d, 91 F.4th 393 (5th Cir. 2024).

[xiii] Id.

[xiv] Id.

[xv] Barnes v. Felix, No. 4:18-CV-725, 2022 WL 5239297, *1 (S.D. Tex. Sept. 29, 2022), aff’d, 91 F.4th 393 (5th Cir. 2024).

[xvi] Barnes v. Felix, 532 F. Supp. 3d at 472 (S.D. Tex. 2021).

[xvii] Bernie Pazanowski, Officer Not Liable for Shooting Unarmed Man During Traffic Stop, BL (Jan. 25, 2024, 11:26 AM), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/X2TSBDIG000000#jcite.

[xviii] Barnes v. Felix, 523 F. Supp. 3d 463, 469 (S.D. Tex. 2021) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)).

[xix] Id. (citing Fraire v. City of Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992)).

[xx] See id. at 472.

[xxi] Id. at 469 (citing Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009)).

[xxii] Id. at 471-72.

[xxiii] Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024).

[xxiv] Id. at 398 (5th Cir. 2024) (Higginbotham, J., concurring).

[xxv] Id.

[xxvi] Id. at 398-99 (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).

[xxvii] See id. at 399.

[xxviii] Id. at 400.

[xxix] Pazanowski, supra note xvii.

[xxx] Graham v. Connor, 490 U.S. 386, 394-95 (1989). See also Michael J. Zydney Mannheimer, Police Violence and the Original Meaning of “Due Process of Law”, 50 N. Ky. L. Rev. 137, 147 (2023) (discussing that, for Fourth Amendment purposes, a “seizure” occurs “when the police physically subdue a subject, as when police grab, tackle, or gun down a fleeing suspect, or when the subject submits to a show of authority which a reasonable person would have interpreted as an order to stop”).

[xxxi] Barnes v. Felix, 91 F.4th 393, 400-01 (5th Cir. 2024) (Higginbotham, J., concurring).

[xxxii] Id.

[xxxiii] Barnes v. Felix, 91 F.4th 393, 401 (5th Cir. 2024) (Higginbotham, J., concurring).

[xxxiv] See id.

[xxxv] See id. at 401 (Higginbotham, J., concurring).

[xxxvi] And Judge Higginbotham agrees. Id.

[xxxvii] Id. at 399.

[xxxviii] Id. at 401.