Qualified immunity based on moment of threat test


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Officer Roberto Felix, Jr. fatally shot Ashtian Barnes on April 28, 2016, following a lawful traffic stop. The facts leading up to the shooting are undisputed. At about 2:40 p.m., Officer Roberto Felix heard a radio broadcast from the Harris County Toll Road Authority giving the license plate number of a vehicle on the highway with outstanding toll violations. Spotting a Toyota Corolla with the matching plate on the Tollway, he initiated a traffic stop by engaging his emergency lights. Ashtian Barnes, the driver, pulled over to the median on the left side of the Tollway out of the immediate traffic zone.

Officer Felix parked his car behind the Corolla. Officer Felix approached the driver’s side window and asked Barnes for his driver’s license and proof of insurance. Barnes replied that he did not have the documentation and that the car had been rented a week earlier in his girlfriend’s name. During this interaction, Barnes was “digging around” in the car. Officer Felix warned Barnes to stop doing so and, claiming that he smelled marijuana, asked Barnes if he had anything in the vehicle Officer Felix should know about. In response, Barnes turned off the vehicle, placing his keys near the gear shift, and told Officer Felix that he “might” have the requested documentation in the trunk of the car. What happened next was captured on Officer Felix’s dash cam. The district court found:

• At 2:45:28, Felix orders Barnes to open the trunk of his vehicle. At this time, Barnes’s left blinker is still on, indicating that the keys are still in the ignition.
• At 2:45:33, Barnes opens the trunk of the vehicle.
• At 2:45:36, Barnes’s left blinker turns off.
• At 2:45:43, Felix asks Barnes to get out of the vehicle.
• At 2:45:44, Barnes’s driver side door opens.
• At 2:45:47, Barnes’s left blinker turns back on.
• At 2:45:48, Felix draws his weapon.
• At 2:45:49, Felix points his weapon at Barnes and begins shouting “don’t fucking move” as Barnes’s vehicle begins moving.

At this point, Officer Felix stepped onto the car with his weapon drawn and pointed at Barnes, and—as Appellants claim and as supported by the footage—“shoved” his gun into Barnes’s head, pushing his head hard to the right. Then, the car started to move. While the car was moving, Officer Felix shot inside the vehicle with “no visibility” as to where he was aiming. The next second, Officer Felix fired another shot while the vehicle was still moving. After two seconds, the vehicle came to a full stop, and Officer Felix yelled “shots fired!” into his radio. Officer Felix held Barnes at gunpoint until backup arrived while Barnes sat bleeding in the driver’s seat. At 2:57 p.m., Barnes was pronounced dead at the scene.

The Homicide Division of the Houston Police Department investigated and presented a report to the Harris County District Attorney’s Office, who presented the report to a grand jury on August 26 and August 31, 2016. The grand jury returned a “no bill;” that is, it found no probable cause for an indictment. Harris County Precinct 5 Constable’s Office also conducted an internal investigation and found that Officer Felix had not violated its Standard Operating Procedures.

The district court granted Defendants’ motion for summary judgment and found that there was no genuine dispute of fact material as to constitutional injury. First, the district court found that, although there were some inconsistencies as to Officer Felix’s “motivations” for shooting Barnes, the dash cam footage resolved all lingering genuine disputes of material fact. According to the district court, “Plaintiffs have not cited any evidence that would obfuscate the events depicted in the dash cam recording.” It explained:

The dash cam footage shows that Felix did not draw his weapon until Barnes turned his vehicle back on despite Felix’s order to exit the vehicle. Regardless of whether Felix drew his weapon before or after the vehicle started moving, Plaintiffs offer no lawful explanation for Barnes turning his car back on after Felix ordered him to exit the vehicle. Second, the court found that Officer Felix’s actions prior to the moment of threat, including that Officer Felix “jumped onto the door sill,” had “no bearing” on the officer’s ultimate use of force. Third, the court determined that the moment of threat occurred in the two seconds before Barnes was shot. At that time, Officer Felix was still hanging onto the moving vehicle and believed it would run him over, which could have made Officer Felix reasonably believe his life was in imminent danger.

Ultimately, the district court found that because Barnes posed a threat of serious harm to Officer Felix in the moment the car began to move, Officer Felix’s use of deadly force was not excessive. The 5th affirmed.


Bound by this Circuit’s precedent, we affirm the district court’s order holding that there is no genuine dispute of material fact as to constitutional injury. As the district court explained, we may only ask whether Officer Felix was in danger at the moment of the threat that caused him to use deadly force against Barnes. In this circuit, it is well-established that the excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of the threat that resulted in the officers’ use of deadly force. See Amador. This “moment of threat” test means that “the focus of the inquiry should be on the act that led the officer to discharge his weapon.”

Any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit. See Harris. The district court here determined that the moment of threat occurred in the two seconds before Barnes was shot. At that time, Officer Felix was still hanging onto the moving vehicle and believed it would run him over, which could have made Officer Felix reasonably believe his life was in imminent danger.

Harmon presented a similar fact pattern, in which an officer was perched on the running board of a runaway vehicle when the officer shot the fleeing driver. Finding no constitutional violation, the opinion noted that the brief interval—when the officer is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether the officer reasonably believed he was at risk of serious physical harm. Similarly here, Officer Felix was still hanging on to the moving vehicle when he shot Barnes. Under Harmon’s application of our Circuit’s “moment of threat” test, Felix did not violate Barnes’s constitutional rights. We focus on the precise moment of the threat as required and affirm the district court’s judgment.