The Fourth Amendment prohibits law enforcement officers from using excessive force when carrying out arrests and other seizures. To determine whether the force used by an officer was excessive, precedent requires examining the “totality of the circumstances.” But some courts have narrowed that inquiry by considering only the precise moment when an officer used deadly force, ignoring unreasonable conduct on the officer’s part leading up to that moment. 

Ashtian Barnes was driving a rental car when Officer Roberto Felix Jr. pulled him over for toll violations associated with the rental car. Officer Felix ordered Barnes to exit the vehicle, then drew his gun, before there was any threat to Felix’s safety. Then, when the car began rolling forward with the door open, Felix jumped onto the moving vehicle, pointed his gun at Barnes’s head, and fired, killing him. The entire encounter took three minutes. Barnes’s mother brought an excessive force case on his behalf, arguing that Felix’s actions violated Barnes’s constitutional rights. But the district court and the U.S. Court of Appeals for the Fifth Circuit dismissed her case under the “moment-of-threat” doctrine, which required them to consider only the two seconds after Felix had already jumped onto the moving vehicle—at which point he claimed his life was in danger. The courts determined that, in those two seconds, Felix’s use of deadly force was justified, and the courts could not consider anything leading up to that moment.  

In November 2024, CAC filed an amicus brief in the Supreme Court in support of Barnes’s mother. Our brief discusses two reasons why the Supreme Court should reject the moment-of-threat doctrine. 

First, the moment-of-threat doctrine is at odds with the Fourteenth Amendment’s guarantee of protection from unfettered police discretion and police violence. Adopted in response to an epidemic of police abuse in the post–Civil War South, the Fourteenth Amendment extended the Fourth Amendment’s protections against unreasonable searches and seizures to the actions of state and local officers. During the debates on the Fourteenth Amendment, members of Congress denounced boundless arrest powers and described how police officers abused those powers to justify baseless and often violent seizures of Black Americans. Congress and the public were also spurred to action by notorious episodes in which the police led horrific massacres of Black Americans in two cities. Contrary to the Fourteenth Amendment’s focus on curbing police abuse, however, the moment-of-threat doctrine puts police officers in an elevated position relative to ordinary civilians, by shielding officers from accountability when they unreasonably use deadly force in response to crises of their own creation.  

Second, because the nation’s system of policing and the scope of law enforcement officers’ authority have expanded far beyond what the Founders conceived of when the Fourth Amendment was adopted, courts should be especially vigilant in ensuring reasonableness under that Amendment, which requires considering all the circumstances of a seizure. Unlike at the Founding, professional police forces today wield vast authority to stop and arrest people on little suspicion for even the most minor potential offenses. Given this dramatic expansion in police officers’ discretionary powers, it is all the more important for courts to ensure that their actions satisfy the Fourth Amendment’s reasonableness standard. The moment-of-threat doctrine frustrates that imperative, artificially stifling the Fourth Amendment inquiry by preventing courts from considering the full range of circumstances surrounding an officer’s decision to use deadly force on a private citizen.