Update: On remand, Fifth Circuit applies totality of the circumstances analysis in considering whether law enforcement officers deployed unreasonably excessive force. Barnes v. Felix, No. 22-20519, __ F.4th __ (5th Cir. Aug. 15, 2025)

Totality of Circumstances Analysis

As we first reported earlier this year, in Barnes v. Felix the United States Supreme Court unanimously held that the “moment of the threat” rule, utilized by the Fifth Circuit (as well as the Second, Fourth, and Eighth Circuits) in assessing the reasonableness of an officer’s use of deadly force, improperly constrained a court’s temporal analysis. Rather, courts must consider the totality of the circumstances surrounding the use of force-whether deadly or not.

Following this clarification from the Supreme Court, the Fifth Circuit nonetheless affirmed the District Court’s grant of summary judgment in favor of Deputy Felix on the basis of qualified immunity. Specifically, the Fifth Circuit considered the events and circumstances that occurred in the two minutes leading up to the shooting.

Deputy Felix responded to a radio broadcast advising of a vehicle with outstanding toll violations. He stopped the vehicle on the left shoulder of a freeway, shortly thereafter, a reasonable action based on the probable cause that a misdemeanor traffic violation had occurred. Deputy Felix engaged with the driver, Ashtian Barnes, and subsequently asked Barnes to exit the vehicle. Instead, Barnes grabbed his keys, started the engine, and began to drive away.

Deputy Felix faced a “split-second decision between only bad options.” He could engage in a potentially dangerous high-speed chase, or try to physically restrain the driver or stop the vehicle, placing himself in serious danger. The driver did not stop or respond to commands, and, the Court found, Deputy Felix was therefore reasonable in firing two shots inside the vehicle, ultimately killing the driver. Dash camera footage also captured the incident.

Based on this evidence and the uncontested sworn testimony of Deputy Felix, the Court found that no genuine dispute of fact existed as to whether Deputy Felix used excessive force in an objectively unreasonable manner at any time in the traffic stop. Thus, the Court affirmed the District Court’s grant of summary judgment on the basis of qualified immunity.

The Fifth Circuit ultimately reached the same conclusion as it had prior to the Supreme Court’s vacatur of its prior order. Consistent with that order, the new opinion contains additional analysis and consideration of the totality of the circumstances leading up to the application of force. Moreover, the Fifth Circuit took note of the dash camera footage as confirming the events as alleged by the parties.

Although the outcome remained the same here, the Supreme Court’s rationale for considering the totality of the circumstances remains true: the entire context could benefit either party, depending on what the prior events show. In any event, parties in any excessive force case-whether deadly or not-must unequivocally develop the facts and circumstances that underly the entire event, not merely the moment of the threat.

Read Supreme Court Rejects Fifth Circuit’s Moment of Threat Doctrine >