‘Moment of the threat’
Barnes was driving a rented silver Toyota Corolla, which his girlfriend had booked, on the Sam Houston Tollway in west Houston when the incident took place at 2:45 p.m. on April 28, 2016. He was on his way to pick up his girlfriend’s daughter from school, according to Hughes.
Roberto Felix Jr., a traffic enforcement officer with the Harris County Precinct 5 Constable’s Office, which is a local police department, received a report that Barnes’ car had outstanding toll violations.
He pulled the vehicle over to the left on the median side of the southbound tollway and approached the driver’s side. Barnes initially could not produce his license or proof of insurance and told Felix the documents might be in the trunk. At the time, Felix said he smelled marijuana, although no evidence of any drugs was found in the car. During those initial moments, Barnes turned off the engine and removed the key from the ignition.
The fast-moving sequence of events lasted just seconds and was captured on video filmed from Felix’s patrol car, leaving exactly what transpired in the vehicle out of sight.
Felix asked Barnes to exit the car. But almost as soon as the car door was opened, according to Felix’s deposition in the case, Barnes quickly put the key in the ignition, started the engine, and put the car in drive. The vehicle started to move forward. Felix stepped onto the door sill and shouted at Barnes not to move. He then fired his firearm twice, hitting Barnes in the torso, and the vehicle quickly stopped.
Barnes died at the scene.
The Houston Police Department, which is separate from the constable’s office, and the Harris County District Attorney’s Office investigated the killing, with a grand jury finding no probable cause to bring criminal charges.
Felix, who has been a police officer since 2004, was involved in another fatal shooting in 2007, according to testimony he gave to a grand jury investigating Barnes’ death. Jeff McShan, a spokesman for the police department, said Felix still works there and has not been disciplined as a result of the Barnes incident. A review of the shooting found it was justified, he added.
“They didn’t find anything wrong with what he did,” McShan said.
Felix, via his lawyers, declined to comment.
In his deposition, Felix said that although it had initially appeared to be a routine traffic stop, his view changed because of what he interpreted as Barnes’ suspicious behavior, such as not having his license and rummaging around the car looking for the rental car agreement.
“His actions kept indicating to me that he was up to something,” Felix said in the deposition. (At the time of the incident, Felix did not see any signs that Barnes was armed, although a gun was later found in the vehicle.)
When Barnes restarted the engine and tried to put the car in gear, Felix said he feared for his safety, which is why he jumped on the door sill and then fired his weapon.
“It must have been maybe two, three seconds, possibly,” Felix said. “At that moment it felt like it was longer than that, though.”
National significance
In Hughes’ lawsuit, she claims Felix used excessive force in violation of the Constitution’s Fourth Amendment, which prohibits unlawful searches and seizures. She also filed a separate claim against the police department, which is not directly at issue before the Supreme Court.
Her lawyers say Felix could have avoided using deadly force by de-escalating the situation and argue that he violated police department policies on the use of force.
The dispute reached the high court after Judge Patrick Higginbotham of the New Orleans-based 5th U.S. Circuit Court of Appeals, which hears cases arising from Texas, reluctantly authored a decision in favor of Felix. He wrote that he was bound to follow the court’s own precedents, but he all but pleaded for the Supreme Court to intervene.
Most notably, Higginbotham concluded that if he weren’t bound by the “moment of the threat” doctrine and were able to evaluate a broader array of evidence, he would have concluded that a constitutional violation had taken place.
“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,” he wrote.
Texas-based District Judge Alfred Bennett had similar concerns when he ruled in March 2021 that based on the appeals court precedent, no constitutional violation occurred.
Like Higginbotham, Bennett criticized the appeals court’s approach, saying that it had “effectively stifled a more robust examination of the Fourth Amendment’s protections when it comes to encounters between the public and the police.”
It is already extremely difficult to mount a successful lawsuit against police officers alleging excessive force. How the court rules will not drastically change the legal landscape in that regard, but it will nevertheless have national significance.
That is because the 12 regional federal appeals courts are divided, with four embracing the “moment of the threat doctrine” and eight rejecting it, according to Hughes’ lawyers. If the court rules for Hughes, the doctrine would be voided nationwide, constituting a loss for police officers accused of excessive force. But if the court rules for Felix, it could make it even harder for plaintiffs to bring such claims.
Felix’s lawyers say that lower courts are not as divided on the issue as Hughes’ legal team has argued. They say the approach taken by the 5th Circuit was consistent with how the Supreme Court has directed lower courts to address excessive force claims, including under a 1989 case called Graham v. Connor.
The Supreme Court said in that case that when determining whether excessive force was used, courts have to view the incident from the perspective of what an “objectively reasonable” officer would have done in the same situation.
In essence, the dispute boils down to what exactly the Supreme Court meant in the 1989 case, building on a ruling from four years earlier when it said courts should consider the “totality of the circumstances” in assessing an officer’s actions. Hughes’ lawyers say that should include the sequence of events leading up to the use of force, while Felix’s say it should be limited to the exact moment the officer decided to use force.
A more expansive consideration of the preceding moments would in some cases give plaintiffs a better chance to show that the officer’s conduct was unreasonable, thereby allowing a lawsuit to move forward.
Qualified immunity
Even if Felix loses at the Supreme Court, he still has a good chance of prevailing on the excessive force claim. That’s because he could invoke the qualified immunity defense, which courts have increasingly used to shield police officers in similar cases. The defense applies when a constitutional violation takes place but the officer was not on notice that the alleged conduct was unlawful. Courts would have to take a second look at the Barnes case to see if it was “clearly established” at the time of the incident that Felix’s actions violated the Constitution.
Felix’s lawyers maintain that he would be protected under appeals court precedents.
“Felix is entitled to qualified immunity under the clearly established law in effect at the time he stopped Barnes,” they wrote in court papers.
But as Hughes’ lawyers point out, even if she ultimately loses, she might still be able to obtain a ruling from a lower court that puts cops on notice that conduct like Felix’s is unconstitutional going forward. That could alter police training, helping to prevent similar incidents from happening, and would mean that officers would not be protected by qualified immunity in future cases involving the same type of conduct.
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