By Claire Milburn
Introduction
On January 7, 2026, Immigration and Customs Enforcement agent Jonathan Ross fatally shot Minnesota driver Renee Nicole Good.[1] Statements by federal officials indicate that Ross, if investigated or charged, would claim he acted in self-defense when faced with the possibility of being hit by Good’s car.[2] One news outlet opined that the legal analysis “could all come down to 399 milliseconds.”[3] Before May 2025, a Minnesota court would have considered only that split second when analyzing a possible Fourth Amendment claim against Ross because the United States Court of Appeals for the Eighth Circuit looked only to the moment of threat when analyzing a deadly force claim.[4] Louisiana courts were similarly bound by the moment-of-the-threat doctrine, which was created by the United States Court of Appeals for the Fifth Circuit.[5] Recently, the United States Supreme Court rejected the moment-of-the-threat doctrine in Barnes v. Felix,changing the way courts analyze Fourth Amendment claims where an officer uses deadly force out of fear for his or her own life.[6] Barnes instructs courts to consider the totality of the circumstances, so Louisiana courts will now need to broaden the timeline.[7] The Supreme Court, however, failed to address whether courts should also consider whether an officer created an unreasonable risk of danger.[8]
I. Background
The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures.[9] The Supreme Court has held that an officer’s use of deadly force is a seizure under the Fourth Amendment, so it is subject to the Fourth Amendment’s reasonableness requirement.[10] In Graham v. Conner, the Supreme Court instructed that excessive force claims should be evaluated under an “objective reasonableness” standard considering the totality of the circumstances.[11] Over time, the Fifth Circuit narrowed the objective reasonableness test in deadly force cases and instructed courts to consider only “the moment of the threat that resulted in the [ ] shooting.”[12] The Second, Fourth, and Eighth Circuits followed and adopted the moment-of-the-threat doctrine, while the remaining circuits maintained a totality of the circumstances analysis.[13]
Barnes v. Felix brought the moment-of-the-threat doctrine to the Supreme Court in 2025.[14] The underlying case concerned officer Roberto Felix’s shooting of Ashtian Barnes.[15] According to Judge Higginbotham’s concurrence from the Fifth Circuit, Felix’s actions were likely reasonable during the two seconds before he shot, but may have been unreasonable under the totality of the circumstances.[16] Thus, the case presented the Court with an opportunity to examine the moment-of-the-threat doctrine.[17]
On April 28, 2016, Felix, a law enforcement officer in the Houston area, pulled Barnes over on the side of a highway after receiving a radio alert about outstanding toll violations on the Toyota Corolla Barnes was driving.[18] Following a short exchange in which Barnes told Felix that he did not have his license on him, and that the car was a rental in his girlfriend’s name, Felix told Barnes to get out of the car.[19] Barnes opened the door to the car but turned the ignition back on instead of exiting.[20] Felix then unholstered his gun.[21] The car began to move forward, and Felix jumped onto the edge of the door, hanging on the door as the car accelerated.[22] Felix, with no visibility into the car because his head was above the roof, fired two shots into the vehicle.[23] Barnes managed to stop the car despite being shot.[24] By the time emergency services arrived, Barnes had died from his gunshot wounds.[25] Barnes’s mother brought an excessive force claim against Felix on her son’s behalf.[26]
The district court followed the narrow moment-of-the-threat doctrine and considered only “the two seconds before Felix fired his first shot” when assessing whether Felix was in danger at the time he deployed deadly force.[27] The district court determined that “‘the moment of threat’ occurred after Felix jumped onto the door sill.”[28] The Fifth Circuit affirmed, explaining that the inquiry is limited to whether an officer was “in danger at the moment of the threat that resulted in [his or her] use of deadly force.”[29] Judge Higginbotham expressed concern in his concurrence that the moment-of-the-threat doctrine was inconsistent with Supreme Court precedent.[30] Judge Higginbotham explained that under the moment-of-the-threat doctrine, he found the use of force reasonable; however, he would have reached the opposite conclusion considering the totality of the circumstances.[31]
Garner instructs that using deadly force to stop a fleeing suspect is only reasonable where a fleeing suspect poses an immediate threat to the officer or others.[32] Judge Higginbotham identified two facts that would have made Felix’s decision to use deadly force unreasonable under a totality of the circumstances analysis.[33] First, a toll violation does not prompt suspicion of danger.[34] Barnes was stopped for outstanding toll violations associated with his girlfriend’s rental car, and none of those violations are arrestable offenses under Texas state law.[35] Importantly, Barnes was not stopped for a violent offense.[36] The reason for the traffic stop did not raise suspicion that Barnes posed a danger to Felix or others.[37] Second, Barnes decided to flee before Felix jumped onto the running board of Barnes’s car.[38] This point is important because Barnes’s flight was not prompted by Felix’s decision to jump on the car, and Felix shot Barnes two seconds later.[39] In those two seconds, Barnes likely did not have the opportunity to stop the car and end the threat to Felix’s safety. Therefore, Felix’s decision to jump onto the car with his gun already drawn was an important fact, but the district court and the Fifth Circuit could not consider that decision.[40]
II. The Supreme Court Rejects the Moment-of-the-Threat Doctrine
Once Barnes reached the Supreme Court, the Court explicitly rejected the moment-of-the-threat doctrine.[41] The Court explained that the question in an excessive force claim is “whether the force deployed was justified from ‘the perspective of a reasonable officer on the scene,’ taking due account of both the individual interests and the governmental interests at stake.”[42] This is a fact-specific inquiry that takes into account “the ‘severity of the crime,’” the “actions the officer took during the stop,” and “the stopped person’s conduct.”[43] Justice Kagan clarified in her majority opinion that “the situation at the precise time of the shooting will often be what matters most . . . [b]ut earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”[44] While the moment of the threat is certainly relevant to the analysis and carries significant weight, the Court instructed that all relevant facts must be considered.[45]
In this particular case, the officer argued for the moment-of-the-threat doctrine, but Justice Kagan pointed out that considering the totality of the circumstances can benefit the officer too.[46] For example, in Plumhoff, the fact that the driver had engaged in a “dangerous” car chase in the several minutes leading up to the shooting was used to justify the officer’s use of deadly force.[47] The Plumhoff Court explained that the officer’s actions were reasonable based on the events leading up to the use of deadly force.[48] If courts only considered “the instant when the chased car was at a ‘near standstill,’” then the officer’s actions may not have been reasonable.[49] Thus, a totality of the circumstances analysis may favor the officer or the suspect.
Justice Kavanaugh, joined by Justices Thomas, Alito, and Barrett in his concurrence, sounded the alarm about second-guessing an officer’s method of dealing with a fleeing suspect.[50] The concurrence cautioned against placing too much weight on the reason for the stop.[51] Any traffic stop could become dangerous “even if a driver is pulled over for nothing more than a speeding violation, a broken taillight, or the like.”[52] Justice Kavanaugh discussed the dangers associated with letting the driver go, giving chase from a vehicle, shooting out the tires of the fleeing car, or jumping onto the car, concluding that “when a driver abruptly pulls away during a traffic stop, an officer has no particularly good or safe options” and “[n]one of the options available to the officer avoids danger to the community.”[53] The Fifth Circuit adopted this reasoning on remand.[54]
III. Officer Created Danger Goes Unanswered
After Barnes, Louisiana courts will need to consider the totality of the circumstances leading up to a use of deadly force, but it remains unclear whether courts should consider if the officer created a dangerous situation that made the use of force necessary.[55] Only the Ninth and Tenth Circuits have adopted an officer created danger rule.[56] At oral argument, counsel for Barnes clarified that the petitioner was not seeking an officer created danger test.[57] Further, Justice Kagan explained that the question of whether the analysis should consider an officer’s “creation of a dangerous situation” was not properly before the Court, “precisely because [the lower court] inquiry was so time-bound.”[58] In limiting its analysis to the two seconds before the officer used deadly force, the lower court excluded any actions that allegedly created the danger, such as Felix’s decision to jump onto the sill of the moving car.[59]
Nevertheless, at oral argument the Court was concerned with whether an officer’s decision to jump onto or in front of a car could ever be reasonable.[60] Counsel for Barnes asserted that the “tragic terrorist attack in New Orleans” was an example of a case where jumping in front of a vehicle may be reasonable, explaining:
If an officer had jumped in front of the car and shot the driver, that officer would be a hero, and it’s because the state interest in that case in seizing that terrorist is incredibly high. Again, that’s the type of balancing that the Fifth Circuit just couldn’t engage in in this case.[61]
This example shows that, according to Barnes’s counsel, a totality of the circumstances test does not mean that jumping in front of a vehicle is never reasonable, even though Felix’s decision may have been unreasonable. Judge Higginbotham insisted that Felix’s actions would be unreasonable if the Fifth Circuit had engaged in a totality of the circumstances analysis; however, after the case was remanded, Judge Higginbotham authored a unanimous opinion reaching the opposite conclusion.[62] On remand, the Fifth Circuit evaluated the totality of the circumstances and found that when Felix made the “split-second decision” to step onto the sill of the car, he was faced with “only bad options,” and thus he did not act unreasonably.[63] This conclusion leaned heavily on considerations from Justice Kavanaugh’s concurrence.[64]
The Fifth Circuit evaluated the reasonableness of Felix’s decision to jump onto the sill of the car, which would have been impermissible under the moment-of-the-threat doctrine, but the court concluded that because Barnes was attempting to flee, Felix was faced with “only bad options.”[65] This reasoning, which runs parallel to Justice Kavanaugh’s concurrence, appears to foreclose the possibility that an officer’s actions could ever be unreasonable, so long as the suspect is fleeing, because all options are bad.[66] Justice Kavanaugh did not give guidance for determining which option is worse and instead cautioned against parsing the options in this way.[67] It is unclear how many courts across the nation will adopt Justice Kavanaugh’s reasoning, but courts in the Fifth Circuit may choose to adopt the principle that officers are only faced with bad options when a suspect is fleeing.
If a court determines that an officer faced with a fleeing suspect only has bad options, as the Fifth Circuit did on remand, impliedly any of those options are acceptable, including the use of deadly force. One counterpoint to this principle is the officer created danger doctrine. The Tenth Circuit requires consideration of whether an officer’s “reckless conduct created the need to use deadly force.”[68] The Ninth Circuit follows a similar approach.[69] For courts that choose to adopt the reasoning in Justice Kavanaugh’s concurrence, the officer created danger doctrine could serve as a stopping point on the continuum of bad options. Combining these methods, all options are equally bad options until the officer’s conduct becomes reckless. At the point of recklessness, the officer’s actions become unreasonable. A blend of these analyses could strike an appropriate balance between preserving a suspect’s Fourth Amendment rights and enabling officers to protect themselves and the public. Unfortunately, the Court declined to address the officer created danger doctrine in Barnes, so it is unclear whether this approach is permissible.[70]
Conclusion
Following Barnes, Louisiana courts must expand the analysis of an officer’s use of deadly force to include the totality of the circumstances, not just the moment of the threat.[71] The Court declined to address the officer created danger doctrine, so it is unclear whether courts may decide that an officer’s use of deadly force was unreasonable because his or her reckless actions created the need to use force.[72] If more courts choose to adopt the reasoning in Justice Kavanaugh’s concurrence that officers do not have any good options when faced with a fleeing suspect, the officer created danger doctrine may become more relevant as a useful stopping point for the analysis. A recent growing interest in the use of deadly force against drivers makes it likely that this issue will come before the Supreme Court again.[73]
[1] Liz Sawyer, Andy Mannix & Sarah Nelson, Star Tribune Identifies ICE Agent Who Fatally Shot Woman in Minneapolis, Minn. Star Trib. (Jan. 8, 2026), https://web.archive.org/web/20260108204249/ [https://perma.cc/TN43-Q347] https://www.startribune.com/ice-agent-who-fatally-shot-woman-in-minneapolis-is-identified/601560214 [https://perma.cc/WMS7-CU7T].
[2] Kerem Inal et al., Minneapolis ICE shooting: A minute-by-minute timeline of how Renee Nicole Good died, ABC News (Jan. 9, 2026), https://abcnews.go.com/US/minneapolis-ice-shooting-minute-minute-timeline-renee-nicole/story?id=129021809 [https://perma.cc/8CZ8-RS7P].
[3] Id.
[4] See Brief for Petitioner at 2, Barnes v. Felix, 605 U.S. 73 (2025) (No. 23-1239).
[5] Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001)).
[6] Barnes v. Felix, 605 U.S. 73 (2025) [hereinafter Barnes I].
[7] Id.
[8] Id.
[9] U.S. Const. amend. IV.
[10] Tennessee v. Garner, 471 U.S. 1, 11 (1985).
[11] Graham v. Connor, 490 U.S. 386, 388, 396 (1989). Plaintiffs must show both that the action was objectively unreasonable and that precedent “placed the statutory or constitutional question beyond debate” under a qualified immunity analysis, but this analysis focuses on the reasonableness inquiry. White v. Pauly, 580 U.S. 73, 78–79 (2017).
[12] Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001)).
[13] Courts that use the totality of the circumstances doctrine may consider pre-seizure conduct of both the officer and the suspect when assessing whether an officer’s decision to use deadly force was reasonable. Courts using the moment-of-the-threat doctrine only consider the moment in which the officer decided to use deadly force. See Brief for Petitioner at 2, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).
[14] Barnes I, 605 U.S. 73 (2025).
[15] Id.
[16] See Barnes v. Felix, 91 F.4th 393, 398 (5th Cir. 2024) (Higginbotham, J., concurring) [hereinafter Barnes II].
[17] Seth Soughton, Barnes v. Felix: The Supreme Court Reaffirms “Totality of the Circumstances” Review in Use of Force Cases, 2 Applied Police Briefings (July 18, 2025), https://doi.org/10.22215/apb.v2i3.5523 [https://perma.cc/8HXZ-M5SV].
[18] Barnes I, 605 U.S. at 76.
[19] Id. at 77.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. Barnes’s mother brought a claim that Felix violated Barnes’s Fourth Amendment rights under 42 U.S.C. § 1983.
[27] Barnes I, 605 U.S. at 78 (quoting Barnes v. Felix, 532 F. Supp. 3d 463, 468 (S.D. Tex. 2021) [hereinafter Barnes III]).
[28] See Barnes II, 91 F.4th 393, 399 n.9 (5th Cir. 2024) (citing Barnes III, 532 F. Supp. 3d at 468).
[29] Barnes II, 91 F.4th at 397.
[30] Barnes I, 605 U.S. at 78 (quoting Barnes II, 91 F.4th at 399).
[31] Barnes I, 605 U.S. at 78 (citing Barnes II, 91 F.4th at 401).
[32] Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
[33] Barnes II, 91 F.4th at 401.
[34] Id. at 399.
[35] Id. (citing Tex. Transp. Code § 370.177 (2019)).
[36] Barnes II, 91 F.4th at 399.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Barnes I, 605 U.S. 73 (2025).
[42] Id. at 79 (quoting Graham v. Connor, 490 U.S. 386, 369 (1989)).
[43] Barnes I, 605 U.S. at 80 (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)); see also Scott v. Harris, 550 U.S. 372, 382–83 (2007).
[44] Barnes I, 605 U.S. at 80.
[45] Id.
[46] Id.
[47] Plumhoff v. Rickard, 572 U.S. 765, 768 (2014).
[48] Id. at 777.
[49] Barnes I, 605 U.S. at 82 (quoting Plumhoff, 572 U.S. at 776).
[50] Barnes I, 605 U.S. at 85.
[51] Id.
[52] Id.
[53] Id. at 89.
[54] Barnes v. Felix, 152 F.4th 669, 674 (5th Cir. 2025) [hereinafter Barnes IV] (citing Barnes I, 605 U.S. at 89).
[55] Barnes I, 605 U.S. 73.
[56] See Brief for Respondent at 49, Barnes I, 605 U.S. 73 (2025) (No. 23-1239); Winkler v. City of Phx., 849 F. App’x 664, 666–67 (9th Cir. 2021); Flores v. Henderson, 101 F.4th 1185 (10th Cir. 2024).
[57] Transcript of Oral Argument at 14, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).
[58] Barnes I, 605 U.S. at 83–84.
[59] Id. at 84.
[60] Transcript of Oral Argument at 24, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).
[61] Id.
[62] Barnes II, 91 F.4th 393, 401 (5th Cir. 2024); Barnes IV, 152 F.4th 669 (5th Cir. 2025).
[63] Barnes IV, 152 F.4th 669, 676 (5th Cir. 2025).
[64] Id. One scholar asserted that both Kavanaugh’s concurrence and the Fifth Circuit’s opinion on remand conflated flight doctrines with noncompliance. Fourth Amendment — Excessive Force – Criminal Procedure — Barnes v. Felix, 139 Harv. L. Rev. 291, 301 (2025).
[65] Barnes IV, 152 F.4th at 676.
[66] Id.; Barnes I, 605 U.S. 73, 89 (2025).
[67] Barnes IV, 152 F.4th at 676.
[68] Arnold v. City of Olathe, 35 F.4th 778, 790 (10th Cir. 2022).
[69] Winkler v. City of Phx, 849 F. App’x 664, 667 (9th Cir. 2021); see also County of L.A. v. Mendez, 581 U.S. 420 (2017).
[70] Barnes I, 605 U.S. at 83–84.
[71] Id.
[72] Id.
[73] Tim Arango, Agents in Trump’s Immigration Crackdown Have Fired at Vehicles at Least 10 Times, The N. Y. Times (Jan. 9, 2026), https://www.nytimes.com/2026/01/09/us/immigration-agents-shooting-vehicles.html [https://perma.cc/2ZB5-SMSM]; What to know about the rules for officers firing at a moving vehicle, Associated Press (Jan. 8, 2026), https://www.wbur.org/news/2026/01/08/what-to-know-rules-officers-firing-moving-vehicle [https://perma.cc/UK6Z-GY6U]; Ben Jones, ICE killing of driver involved tactics many police departments warn against − but not ICE itself, Kan. Reflector (Jan. 10, 2026), https://kansasreflector.com/2026/01/10/ice-killing-of-driver-involved-tactics-many-police-departments-warn-against-%E2%88%92-but-not-ice-itself/ [https://perma.cc/WSA6-D2YK]; U.S. Dep’t of Homeland Sec., DHS Law Enforcement Experienced More Than 180 Vehicle Attacks Since President Trump Took Office (Feb. 3, 2026), https://www.dhs.gov/news/2026/02/03/dhs-law-enforcement-experienced-more-180-vehicle-attacks-president-trump-took [https://perma.cc/HCL2-L8G4].