Petition for Writ of Certiorari — Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtain Barnes, Deceased, Petitioner v. Felix Roberto, Jr. et al.

Supreme Court briefFeb 12, 2026

Ask Donna

What actually matters in this document.

Text

No. 25-___

IN THE

Supreme Court of the United States

————

JANICE HUGHES BARNES,

INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF ASHTIAN BARNES, DECEASED,

Petitioner,

ROBERTO FELIX JR.; COUNTY OF HARRIS, TEXAS,

Respondents.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

ADAM W. FOMBY

Counsel of Record

HOWARD R. FOMBY

FOMBY LAW FIRM

12141 Wickchester Lane

Suite 650

Houston, TX 77079

(346) 220-1196

adam.fomby@fombylaw.com

Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The Fourth Amendment prohibits a police officer

from using “unreasonable” force. U.S. Const. amend.

IV. In Tennessee v. Garner and Graham v. Connor,

this Court held that reasonableness depends on “the

totality of the circumstances.” Graham v. Connor, 490

U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471

U.S. 1, 9 (1985)). Garner expanded upon Graham in

addressing whether deadly force is justifiable in

preventing individuals from attempting to escape

custody, ruling the common law “fleeing felon” rule

unconstitutional and establishing that officers can

only use deadly force to stop a fleeing suspect if they

have probable cause to believe the suspect poses a

significant threat of death or serious physical harm to

the officer or others. But in the issue on appeal, the

Fifth Circuit not only rejected the limitations of the

fleeing felon rule imposed by Garner but effectively

expanded the old rule to apply to any detainee who

poses a “risk of flight”, including those merely

suspected of criminal activity, and in so doing has

created a circuit split on the issue with all of the other

appellate courts and with the Supreme Court’s fortyyear-old precedent in Garner. Abandoning even its

own established precedent requiring “sloshing

through the fact-filled morass” of each case, the Fifth

Circuit now applies a new doctrine that establishes a

per se rule allowing the use of deadly force any time

a suspect—felon or not—poses a “risk of flight”,

regardless of the “totality of the circumstances”

surrounding the incident.

The question presented is:

Whether the mere “risk of flight” renders a suspect

so dangerous to the public at large that police are

justified under the Fourth Amendment in using

deadly force to prevent their escape.

(i)

PARTIES TO THE PROCEEDING

Janice Hughes Barnes was the Plaintiff-Appellant

below and is the Petitioner in this Court, individually

and as representative of the estate of Ashtian

Barnes. Roberto Felix, Jr. and the County of Harris,

Texas, were Defendants-Appellees below and are

Respondents in this Court.

Tommy Duane Barnes was a pro se PlaintiffAppellant below and is therefore treated as a

Respondent in this Court. See Sup. Ct. R. 12.6.

STATEMENT OF RELATED CASES

All proceedings directly related to this Petition

include:



Barnes v. Felix, No. 23-1239 (Sup. Ct.)



Barnes v. Felix, No. 22-20519 (5th Cir.)



Barnes v. Felix, No. 21-20180 (5th Cir.)



Barnes v. Felix, No. 4:18-CV-725 (S.D. Tex.)



Barnes v. Felix, No. 2017-86034 (Tex. D. Ct.—

Harris County [129th Dist.])

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

PARTIES TO THE PROCEEDING ....................

STATEMENT OF RELATED CASES ................

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL PROVISION INVOLVED

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

A. Statement of Facts ....................................

B. Procedural History. ...................................

REASONS FOR GRANTING THE PETITION..

A. THE PANEL’S HOLDING BREAKS

WITH LONG-STANDING SUPREME

COURT

AND

FIFTH

CIRCUIT

PRECEDENT. ...........................................

B. THE PANEL’S HOLDING CREATES A

DEEP CIRCUIT SPLIT. ...........................

C. THE USE OF DEADLY FORCE TO

PREVENT POSSIBLE EVASION AND

ESCAPE BY DETAINEES LACKS ANY

BASIS IN THE COMMON LAW .............

(iii)

TABLE OF CONTENTS—Continued

Page

D. THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT, AND

THIS CASE OFFERS AN IDEAL

VEHICLE TO ADDRESS IT ....................

1. The Risk of Flight Rule Unnecessarily

Expands the Umbrella Coverage of

Qualified Immunity .............................

2. Risk of Flight Rule Mischaracterizes

Dangers Created by a Fleeing Suspect

..............................................................

3. Current events have left the public

and the police equally confused as to

the permissible use of deadly force in

police encounters .................................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: Fifth Circuit’s Opinion

(September 18, 2025)....................................

APPENDIX B: District Court’s Order

(March 31, 2021) ...........................................

14a

TABLE OF AUTHORITIES

CASES

Page(s)

Adams v. Speers,

473 F.3d 989 (2007). .................................

Baker v. Coburn,

68 F.4th 240 (5th Cir. 2023) .....................

Barnes v. Felix,

91 F.4th 393 (5th Cir. 2024) ... 1, 3, 5, 10, 11, 25

Barnes v. Felix,

532 F. Supp. 3d 463 (S.D. Tex. 2021) .......

1, 3

Barnes v. Felix,

605 U.S. 73 (2025) ................................. 3, 11, 15

Barrett v. United States,

64 F.2d 148 (D.C. Cir. 1933) .....................

Biegert v. Molitor,

968 F.3d 693 (2020) ..................................

Carter v. State,

17 S.W. 1102 (Tex. App. 1891) .................

Coleman v. State,

49 S.E. 716 (Ga. 1905) ..............................

Colorado v. Hutchinson,

9 F.2d 275 (8th Cir. 1925).........................

Commonwealth v. Weathers,

7 Luzerne Legal Reg. 1 (1892) .................. 23-24

Cowan v. Breen,

352 F.3d 756 (2003) ..................................

Crane v. City of Arlington,

50 F.4th 453 (5th Cir. 2022) ..................... 5, 25

TABLE OF AUTHORITIES—Continued

Page(s)

Edwards v. Oliver,

31 F.4th 925 (5th Cir. 2022) ....................

Flores v. City of Palacios,

381 F.3d 391 (5th Cir. 2004) .....................

Graham v. Connor,

490 U.S. 386

(1989) ................ 2, 5, 8-10, 13, 16, 22, 25, 29, 30

Jackson v. State,

66 Miss. 89 (1888) .....................................

Jefferson v. Lias,

21 F.4th 74 (2021) .....................................

Kingsley v. Hendrickson,

576 U.S. 389 (2015) ...................................

Lange v. California,

594 U.S. 295 (2021) ...................................

Los Angeles County v. Mendez,

581 U.S. 420 (2017) ..................................

Lytle v. Bexar County, Tex.,

560 F.3d 404 (2009) .............................. 5, 14, 18

McCaslin v. Wilkins,

183 F.3d 775 (1999) ..................................

Mullenix v. Luna,

577 U.S. 7 (2015) .......................................

Peter v. State,

5 S.W. 228 (Tex. App. 1887) .....................

Plumhoff v. Rickard,

572 U.S. 765 (2014) ............................. 13, 16, 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Reavis v. Frost,

967 F.3d 978 (2020) ..................................

Reneau v. State,

70 Tenn. 720 (1879) ..................................

Roberson v. State,

14 S.W. 902 (Ark. 1890) ............................

Saucier v. Katz,

533 U.S. 194 (2001) ................................... 29, 30

Scott v. Harris,

550 U.S. 372 (2007) ............................... 5, 13, 15

Smith v. Cupp,

430 F.3d 766 (2005) ..................................

Starks v. Enyart,

5 F.3d 230 (1993) ......................................

Tennessee v. Garner,

471 U.S. 1

(1985) ............ 6, 13-16, 20, 22, 23, 25, 26, 29, 30

Torres v. Madrid,

592 U.S. 306 (2021) ...................................

Vaughan v. Cox,

343 F.3d 1323 (11th Cir. 2003) ................. 18-19

White v. Pauly,

580 U.S. 73 (2017) .....................................

Williams v. Strickland,

917 F.3d 763 (2019) ..................................

viii

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS

Page(s)

U.S. Const. amend.

IV. .............. 1-3, 5, 6, 8, 11, 13-16, 19, 25, 29, 30

STATUTES

28 U.S.C. § 1254(l) ........................................

42 U.S.C. § 1983 ....................................... 8, 22, 30

TREATISES

Harvey Cortlandt Voorhees, The Law of

Arrest in Civil and Criminal Actions

(1904). ........................................................ 21, 23

1 Matthew Hale, Historia Placitorum

Coronae (1736) .......................................... 22, 23

4 William Blackstone, Commentaries on the

Laws of England (1st ed. 1765) ................

William M. McKinney & Burdett A. Rich,

eds., Ruling Case Law 878 (1916) ............

COURT FILINGS

Brief of the Cato Institute, the Law

Enforcement Action Partnership, and the

Center for Policing Equity as Amici

Curiae in support of Petitioner, Barnes v.

Felix, No. 23-1239 (Sup. Ct. June 24,

2024) ..........................................................

Brief of the Due Process Institute and

Restore The Fourth, Inc. as Amici Curiae

in support of Petitioner, Barnes v. Felix,

No. 23-1239 (Sup. Ct. June 24, 2024) ......

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Chip Brownlee, Immigration agents are

shooting people. Is it legal?, MinnPost,

January 14, 2026 ......................................

David French, Trump and Vance Are

Fanning the Flames. Again., New York

Times, January 11, 2026 ..........................

Facts and Figures on Injuries Caused by

Law Enforcement, Law Enf’t Epidemiology Project, Univ. of Ill. Chi.: Sch. Of Pub.

Health, https://policeepi.uic.edu/data-civi

lian-injurieslawenforcement/facts-figuresinjuries-caused-law-enforcement/ (last

visited May 20, 2024) ................................ 24-25

Harvard Law Review, Barnes v. Felix, 139

Harv. L. Rev. 291, available at https://

harvardlawreview.org/print/vol-139/barn

es-v felix/ ................................................... 26, 27

Martin Kaste, State officials say they’ll do

their own probes of shootings by federal

officers, NPR, January 9, 2026 .................

Matt deGrood, What are the rules for police

use of deadly force? How the Supreme

Court decided in a Texas case, Houston

Chronicle, January 13, 2026 .................... 28-29

Osagie K. Obasogie & Zachary Newman,

The Endogenous Fourth Amendment:

An Empirical Assessment of How Police

Understandings of Excessive Force

Become Constitutional Law, 104 Cornell

L. Rev. 1281 (2019) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Rob Doar, Opinion | The cases for and

against self-defense in the killing of Renee

Good,

Minneapolis

Star

Tribune,

January 12, 2026 ......................................

Samantha Michaels, Misconduct Expert

Says State Has the Right to Charge ICE

Officer Who Killed Renée Good, Mother

Jones, January 9, 2026 .............................

Seth W. Stoughton, The Legality of Deadly

Force: Three Critical Questions about the

ICE Shooting in Minneapolis, Verdict,

January 9, 2026 ........................................

OPINIONS BELOW

The Supreme Court’s decision in this case is

reported at 145 S. Ct. 1353 (2025). The Fifth Circuit’s

original decision (Pet. App. 1a-16a) is reported at

91 F.4th 393 (5th Cir. 2024), and the newer, remanded

decision is included herein as an appendix. The

District Court’s decision (Pet. App. 17a-32a) is reported

at 532 F. Supp. 3d 463 (S.D. Tex. 2021).

JURISDICTION

The Fifth Circuit entered judgment on September

18, 2025. All appeals and requests for rehearing were

exhausted on November 14, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution provides

in relevant part: The right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated * * *. U.S. Const. amend. IV.

INTRODUCTION

This case has already been to the Supreme Court

and was remanded back to the Fifth Circuit following

a 9-0 vote reversing that Circuit’s reliance on a

“moment of the threat” doctrine in place of this Court’s

“totality of the circumstances” rule. The Fifth Circuit

subsequently dismissed the case once again on remand

(without any type of argument or full briefs on the

merits), relying almost entirely upon its misinterpretation of Justice Kavanaugh’s concurrence in the

case to create a new per se rule allowing the use of

deadly force any time a motorist poses a “risk of flight”

in a traffic stop.

On an April afternoon in 2016, Ashtian Barnes was

driving his girlfriend’s rental car on the Sam Houston

Tollway outside of Houston, Texas.

That same

afternoon, Officer Roberto Felix, Jr., was patrolling for

toll violations. Through no fault of Barnes, there were

toll violations associated with the rental car’s license

plate, and Felix initiated a traffic stop. Felix asked

Barnes for his license and the rental car’s insurance

paperwork. Barnes indicated that the paperwork

might be in the trunk, and Felix instructed Barnes to

get out of the vehicle. A dash camera recorded what

happens next: The car starts moving slowly forward,

and Officer Felix jumps onto the door sill of the vehicle.

At almost the same instant, Officer Felix begins

shooting inside the vehicle, striking Barnes twice.

Officer Felix then holds Barnes at gunpoint until he

bleeds to death in the rental car.

Petitioner is Janice Hughes Barnes, Barnes’ mother.

Janice lost her only son because Officer Felix used

excessive force and violated Ashtian’s constitutional

rights—over a toll violation. She respectfully requests

that the Court grant certiorari and reverse the

decision below.

Under longstanding Supreme Court precedent, a

court should evaluate the reasonableness of an officer’s

use of force based on “the totality of the circumstances.” Graham v. Connor, 490 U.S. 386 (1989)

(quotation marks omitted). But that had long not been

the Fourth Amendment standard in this Circuit.

Instead, until the Supreme Court intervened in this

case, the Fifth Circuit had applied a more restrictive

moment of the threat doctrine, under which “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.” Barnes v. Felix, 91 F.4th 393, 397 (5th Cir. 2024)

(Barnes II) (quotation marks omitted).

In the decision below, the district court applied this

Circuit’s highly restrictive moment of the threat

doctrine. As result, the district court ignored everything that occurred prior to Officer Felix’s jumping

onto Barnes’ moving car, and evaluated only “the two

seconds before Felix fired.” Barnes v. Felix, 532 F.

Supp. 3d 463, 471 (S.D. Tex. 2021) (Barnes I). Based

on that blinkered analysis, the district court concluded

that Felix acted reasonably when he shot Barnes.

In the initial appeal in 2024, Judge Higginbotham

authored a decision affirming the district court’s

decision and applying the moment of the threat

doctrine. Judge Higginbotham then took the extraordinary step of concurring in his own majority opinion.

He urged the Supreme Court to overturn the moment

of the threat doctrine. Judge Higginbotham also

specifically emphasized that, had he been able to

analyze “the totality of the circumstances,” he would

have found “Officer Felix violated Barnes’s Fourth

Amendment right to be free from excessive force.”

Barnes II, 91 F.4th at 401 (Higginbotham, J., concurring).

In a unanimous decision, the Supreme Court

answered Judge Higginbotham’s call. The Court

overturned the moment of the threat doctrine and

explained that it “conflict[ed]” with precedent requiring

courts “to analyze the totality of the circumstances”

instead. Barnes v. Felix, 605 U.S. 73, 81 (2025)

(Barnes III). The Supreme Court then remanded for

“the courts below” to “consider the reasonableness of

the shooting” under the appropriate totality of the

circumstances standard. Id. at 84.

On remand, the panel requested short letters from

the parties providing guidance on how to proceed.

In response, all the parties agreed the Court was not

well positioned to decide whether Felix acted

unreasonably. But the Court instead chose an option

none of the parties advocated. Without the benefit

of a lower court opinion—let alone briefing and

argument—the Court decided the merits sua sponte.

In yet another decision by Judge Higginbotham, the

panel concluded that Officer Felix acted reasonably

under the totality of the circumstances because fleeing

drivers like Barnes present a “risk of flight” and

necessarily “pose a deadly threat for others on the

road.” Pet. App. 9 (quotation marks omitted); see also

Pet. App. 10 (finding use of force reasonable because

“Barnes could have started a perilous high-speed

chase” [italics added]); Pet. App. 11 (holding that Felix

acted “reasonably in using deadly force to end the risk

of flight” (brackets and quotation marks omitted)).

This conclusion by Judge Higginbotham directly

contradicted his own analysis in his 2024 concurrence,

reaching an entirely opposite conclusion despite the

fact that nothing in the case had changed in the

interim.

In this decision, the Fifth Circuit effectively held

that any time a driver poses a “risk of flight” in a

motor vehicle, the driver’s flight constitutes a deadly

threat as a matter of law and officers may therefore

use deadly force against the driver. That conclusion

conflicts with binding Circuit precedent, is irreconcilable with Supreme Court case law, and has created a

massive circuit split. Indeed, for more than a decade,

the Fifth Circuit has conclusively held that a driver

“fleeing in a motor vehicle” does not “render” the use of

deadly force reasonable—the exact opposite of what

the panel held in this case. Lytle v. Bexar County, Tex.,

560 F.3d 404, 415 (5th Cir. 2009).

It is difficult to understate the stakes: If this Court

does not take up this case for further review, the Fifth

Circuit’s ruling will effectively “declare open season on

suspects fleeing in motor vehicles.” Id. at 414. Here, a

man was tragically shot dead over “an outstanding

toll fee.” Barnes II, 91 F.4th at 401 (Higginbotham, J.,

concurring). That result is deeply unjust, and the

panel’s decision will exacerbate the already disturbing

phenomenon of police killing drivers “for minor”

“violations.” Crane v. City of Arlington, 50 F.4th 453,

458 (5th Cir. 2022) (Higginbotham, J.); see Barnes II,

91 F.4th at 398-399 (5th Cir. 2024) (Higginbotham, J.,

concurring). This new Fifth Circuit doctrine carves out

a special rule for deadly force cases that has no basis

in the Constitution’s text, Supreme Court or Fifth

Circuit precedent, or the common law tradition.

In this case, the Fifth Circuit failed to consider

either “the severity of the crime” that prompted Felix

to seize Barnes (a minor traffic violation), or the fact

that Barnes had posed no “immediate threat” to Officer

Felix when he initiated the seizure—despite Graham

instructing courts to evaluate those specific factors

when considering the totality of the circumstances.

Graham, 490 U.S. at 396. Nor did the Fifth Circuit

attempt to balance the competing private and public

interests at stake or consider the parties’ “relative

culpability”—also factors which this Court has

stressed are critical to evaluating reasonableness

under the Fourth Amendment. Scott v. Harris, 550

U.S. 372, 384 (2007); see Graham, 490 U.S. at 396.

Further, this new “risk of flight” doctrine conflicts

with the common law tradition, in which officers who

acted unreasonably faced civil and even criminal

liability for their actions. It produces deeply unjust

outcomes. And it bears no relationship to the real

world “policies adopted by” modern “police departments.”

Garner, 471 U.S. at 15-16, 18.

This Court should not enshrine this Kafkaesque

rule into constitutional law. To rule for Petitioner on

the question presented, the Court need only hold that

the “risk of flight” doctrine is wrong. On remand, the

lower courts may then evaluate in the first instance

whether Officer Felix used “unreasonable” force under

the totality of the circumstances. U.S. Const. Amend. IV.

STATEMENT OF THE CASE

A. Statement of Facts.

On the afternoon of April 28, 2016, 24-year-old

Ashtian Barnes was driving a rental car on the Sam

Houston Tollway. Pet. App. 2a. The license plate of the

car, which had been rented by Barnes’s girlfriend, was

linked to outstanding toll violations incurred by

another driver. Id. at 2a.

Respondent Roberto Felix, Jr. was “a traffic

enforcement officer” for the Harris County Precinct

Five Constable’s Office. Id. at 1a-2a. Officer Felix

heard a radio broadcast identifying Barnes’s rental car

as having “outstanding toll violations.” Id. at 2a.

Officer Felix spotted the vehicle and initiated a traffic

stop by engaging his emergency lights. Barnes

complied and pulled onto “the median on the left side

of the Tollway out of the immediate traffic zone.” Id.

Officer Felix exited his cruiser, approached the

driver’s side of the rental car, and asked Barnes for his

license and proof of insurance. Id. Barnes replied that

“he did not have the documentation” and began

“digging around in the car.” Id. at 2a (quotation marks

omitted). Officer Felix told Barnes to stop searching

the car, claiming that he smelled marijuana. Id. at 2a–

3a. Barnes told Officer Felix that he “might have the

requested documentation in the trunk,” opened his

trunk, and turned off the car. Id. at 3a (quotation

marks omitted). No marijuana, other drugs, or any

kind of drug paraphernalia were ever found in the car.

The District Court provided a summary of events, as

recorded by the dashboard camera on Officer Felix’s

cruiser:

“• At about 2:45:43, Felix asks Barnes to step out of

the vehicle, and it appears that Barnes opens the

driver’s-side door.

“• As the door opens, Felix’s right hand was on the

holster of his gun.

“• At about 2:45:48, the vehicle’s taillights turn on.

“• About one second later, Felix draws his gun, and

the vehicle starts to move forward.

“• Felix appears to step onto the door sill of the

vehicle as the door begins to close.

“• As the vehicle accelerates, Felix yells, ‘Don’t

fucking move!’ twice.

“• Felix briefly pulls his gun hand out of the vehicle.

“• At about 2:45:52, Felix fires his first shot.

“• Two seconds later, the vehicle comes to a complete

stop.” Id. at 26a-27a.1

For nearly two minutes, “Officer Felix held Barnes

at gunpoint until backup arrived while Barnes sat

The dash cam video was in evidence below and can be viewed

at: https://youtu.be/9gbM_22fUbY.

bleeding in the driver’s seat.” Id. at 4a. “Barnes was

pronounced dead at the scene.” Id.2

In total, the traffic stop lasted less than three

minutes. Id. at 17a. Less than ten seconds passed

between the moment Officer Felix ordered Barnes to

exit the vehicle and the moment Officer Felix jumped

on the vehicle, “shoved his gun into Barnes’s head,

pushing his head hard to the right,” and shot Barnes.

Id. at 4a (quotation marks omitted).

B. Procedural History.

1. Petitioner Janice Hughes Barnes is Ashtian

Barnes’s mother. She filed suit in state court against

Officer Felix and Harris County under 42 U.S.C.

§ 1983. Her complaint alleges that Felix used excessive force in violation of Ashtian Barnes’s Fourth

Amendment rights. Respondents removed to federal

court. At summary judgment, the District Court held

that Felix’s use of deadly force was reasonable under

the Fifth Circuit’s “moment-of-the-threat doctrine.”

Pet. App. 17a-32a.

In this Court’s landmark decision in Graham v.

Connor, the Court explained that determining whether

the use of force is “reasonable under the Fourth

Amendment requires a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing

governmental interests at stake.” Graham v. Connor,

490 U.S. 386, 396 (1989) (quotation marks omitted).

This test “is not capable of precise definition or

mechanical application.” Id. (quotation marks omitted). A court should consider “whether the totality of

Police later found a firearm in the car. It is undisputed that

Officer Felix did not know about the firearm when he shot Barnes.

the circumstances” justified an officer’s use of deadly

force, paying “careful attention to the facts and

circumstances of each particular case.” (quotation

marks omitted). Graham, 490 at 469 identified nonexhaustive factors to consider, “including the severity

of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. This wholistic inquiry

is “judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of

hindsight,” and “must embody allowance for the fact

that police officers are often forced to make splitsecond judgments—in circumstances that are tense,

uncertain, and rapidly evolving.” Id. at 396-397. The

officer’s actual “intent or motivation” is irrelevant to

whether a use of force was constitutional. Id. at 397.

What matters instead is whether the officer’s use of

force was “objectively reasonable.” Id.

As the District Court explained, however, “in cases

involving the use of deadly force, the Fifth Circuit

has developed a much narrower approach.” Pet. App.

23a24a. The Fifth Circuit asks only “whether the

officer or another person was in danger at the moment

of the threat that resulted in the officer’s use of deadly

force.” Id. at 25a (quotation marks omitted). “The

Fifth Circuit does not consider what had transpired up

until the shooting itself in assessing the reasonableness of an officer’s use of deadly force.” Id. at 29a30a (quotation marks omitted).

At summary judgment, the district court ruled for

Felix and Harris County. The district court explained

that “the Fifth Circuit has developed” a “narrow[]

approach” for evaluating the reasonableness of an

officer’s use of deadly force. Id. at 469. Under this

Court’s moment of the threat doctrine, a court must

“ask whether the officer or another person was in

danger at the moment of the threat that resulted in

the officer's use of deadly force.” Id. (quotation marks

omitted).

The district court concluded that “the moment of the

threat” in this case occurred after Felix jumped onto

the door sill, “in the two seconds before Felix fired his

first shot.” Id. at 471. “In that moment, Felix was still

hanging onto the moving vehicle and believed it would

run him over.” Id. According to the district court,

viewing just those two seconds in isolation, Felix acted

reasonably.

2. On appeal, a Fifth Circuit panel affirmed in an

opinion authored by Judge Higginbotham.

That panel reiterated that, under its established

doctrine, it could “only ask whether Officer Felix was

in danger at the moment of the threat that caused him

to use deadly force against Barnes.” Barnes II, 91 F.4th

at 397 (quotation marks omitted). The Court underscored that “[a]ny of the officers’ actions leading up to

the shooting are not relevant for the purposes of an

excessive force inquiry in this Circuit.” Id. (quotation

marks omitted). The panel agreed with the district

court “that the moment of threat occurred in the two

seconds before Barnes was shot,” after Felix had

jumped onto the moving car. Id. at 397. And the Court

affirmed the holding that—viewing those two seconds

in isolation—Felix acted reasonably. Id.

Judge Higginbotham concurred separately in his

own majority opinion. Judge Higginbotham underscored that this Circuit’s doctrine “counters the

Supreme Court's instruction to look to the totality of

the circumstances when assessing the reasonableness

of an officer's use of deadly force.” Id. at 398

(Higginbotham, J., concurring). He urged the Supreme

Court to intervene. Id. at 401.

Judge Higginbotham also emphasized that “the

totality of the circumstances merits finding that

Officer Felix violated Barnes's Fourth Amendment

right to be free from excessive force.” Id. In his words,

“the use of lethal force” against Barnes “preceded any

real threat to Officer Felix’s safety. Id. “Barnes’s

decision to flee was made before Officer Felix stepped

on the running board. His flight prompted Officer

Felix to jump on the running board and fire within two

seconds,” lest Barnes “get away with driving” a “rental

car with an outstanding toll fee.” Id.

3. The Supreme Court granted review and

reversed the panel’s decision in a unanimous decision.

The Supreme Court explained that this Circuit’s

doctrine “constricts the proper inquiry into the ‘totality

of the circumstances.’” Barnes III, 605 U.S. at 79.

The Supreme Court also noted that—had he been

able to analyze the totality of the circumstances—

“Judge Higginbotham would have found that Felix’s

shooting of Barnes was unreasonable.” Id.

The Court then “return[ed]” the case “to the courts

below” “for them” “to consider the reasonableness of

the shooting” under the appropriate legal standard.

Id. at 84.

4. On remand, the panel “requested simultaneous

letter briefs from the parties regarding the next steps

that counsel recommend.” ECF 215.

In response, all the parties agreed the Court was not

well positioned to decide the merits. Barnes explained

that the Court should follow its ordinary course and

remand the case to the district court for it to analyze

the totality of the circumstances in the first instance.

See Barnes Ltr., ECF 263. Felix argued that the Court

should “address the constitutionality of ” “Felix’s use of

force under the ‘totality of the circumstances’ test” but

only after receiving “full merits briefing.” Felix Ltr.,

ECF 264 at 2. Meanwhile, Harris County likewise

urged the Court to request “additional briefing” “regarding the reasonableness of the shooting” before deciding

that question. Harris Cty. Ltr., ECF 262 at 10.

The Court did something that no one advocated.

Without the benefit of briefing or oral argument—to

say nothing of a lower court decision—the panel

decided the case sua sponte, focusing not on an

analysis of the totality of the circumstances but on an

issue that had never been briefed or argued by the

parties, the new “risk of flight” doctrine.

As in 2024, Judge Higginbotham authored the

panel’s opinion. But in sharp contrast to 2024, Judge

Higginbotham concluded that Felix acted reasonably.

According to the panel decision, had Felix not used

deadly force against Barnes, “Barnes could have

started a perilous high-speed chase.” (emphasis added)

Pet. App. 10 (Opinion included in Appendix). In other

words, Felix “act[ed] reasonably in using deadly force

to end the risk of flight.” Pet. App. 11 (quotation marks

and alterations omitted). This directly contradicted

Judge Higginbotham’s conclusion in his own 2024

concurrence.

This Petition follows.

REASONS FOR GRANTING THE PETITION

A. THE PANEL’S HOLDING BREAKS WITH

LONG-STANDING SUPREME COURT

AND FIFTH CIRCUIT PRECEDENT.

The Fourth Amendment protects “the right of the

people to be secure in their persons” “against unreasonable” “seizures,” which includes the right to remain

free from excessive force. U.S. Const. Amend. IV; see

Torres v. Madrid, 592 U.S. 306, 309 (2021). A staple of

Fourth Amendment jurisprudence is that the question

of whether an officer’s use of force is reasonable in a

particular case turns on “the totality of the circumstances.” Garner, 471 U.S. at 8; accord Los Angeles

County v. Mendez, 581 U.S. 420, 421 (2017); Plumhoff

v. Rickard, 572 U.S. 765, 774 (2014); Scott, 550 U.S. at

383; Graham, 490 U.S. at 396. In this context, the

Fourth Amendment does not supply “rigid” rules or

“magical on/off switch[es],” Scott, 550 U.S. at 382.

A court must “slosh” “through the factbound morass of

‘reasonableness.’” Scott, 550 U.S. at 38.

But in this case, the Fifth Circuit engaged in no

“slosh[ing]” whatsoever, and in leaping to assert a

novel new interpretation of Fourth Amendment law,

the Fifth Circuit has effectively expanded qualified

immunity to cover the use of deadly force any time an

individual an individual poses a risk of disengaging

from police detention—as a per se rule negating any

additional need for a “totality of the circumstances”

inquiry.

1. Let us start with the Fifth Circuit’s own

precedent. The new Fifth Circuit decision represents

a clear and decisive break from that Court’s own prior

published decisions, which make clear that “a suspect

that is fleeing in a motor vehicle is not so inherently

dangerous that an officer’s use of deadly force is per se

reasonable.” Lytle, 560 F.3d at 416. 3 Now, in contrast,

the Court has flipped that precedent on its head,

establishing that not only flight, but simply the mere

“risk of flight” (a purely subjective standard that

seemingly relies upon an officer’s own perception of a

detainee’s intent) is sufficient per se to justify an

officer’s use of deadly force, a singularly perverse and

inexplicable new development in the law that cries out

for correction as previously delineated in Garner.

2. The panel’s new per se rule (hereafter the

“risk of flight doctrine”) that officers may use force

against drivers posing a “risk of flight” also conflicts

with outstanding Supreme Court precedent.

As a threshold matter, the decision is in direct

conflict with landmark Fourth Amendment case law.

The central case is Lytle, in which the Court held that it was

unreasonable for an officer to use deadly force when a “chase took

place at high speeds within a residential area, there were

children playing somewhere nearby” but there was no “immediate

danger.” Id. The Court acknowledged the truism that “any

suspect fleeing in a motor vehicle poses some threat of harm to

the public.” Id. at 415. But the Court stressed that “real inquiry

is whether the fleeing suspect posed such a threat that the use

of deadly force was justifiable.” Id. The panel’s decision—

permitting an officer to use deadly force when a driver seeks to

flee—is simply impossible to square with Lytle.

Nor does Lytle stand alone. The Fifth Circuit has on several

other occasions reaffirmed the principle that an officer may not

use deadly force against a fleeing driver. See Baker v. Coburn, 68

F.4th 240 at 249 (5th Cir. 2023) (explaining an officer may shoot

at “a speeding car” only if officer has “cause to believe that the car

poses an immediate threat,” citing Lytle, and denying summary

judgment); Edwards v. Oliver, 31 F.4th 925 at 932 (5th Cir. 2022)

(explaining precise threat car posed was “material to the excessive force claim,” citing Lytle, and denying summary judgment);

Flores, 381 F.3d at 399 (unreasonable to shoot at driver who “did

not drive erratically” or pose a threat).

Under Tennessee v. Garner, 471 U.S. 1, 20 (1985), it is

unreasonable to use deadly force simply because a

felon flees the scene—let alone someone who flees a

misdemeanor traffic stop. But the Court’s holding here

means Garner’s prohibition on killing fleeing suspects

is now inapplicable on roadways. Instead, in the Fifth

Circuit, an officer can now use deadly force against a

fleeing driver simply because the driver poses a risk of

flight.

In contrast, the Supreme Court has never applied

this kind of per se rule permitting deadly force against

fleeing drivers. Instead, in its car chase cases, the

Court has analyzed the specific factors unique to each

case that demonstrated why a specific driver posed a

serious threat and why deadly force was warranted in

that individual case. That mode of analysis—sloshing

through the “factbound morass”—is incompatible with

the Court’s ruling here. Barnes, 605 U.S. at 80.

For example, in Scott v. Harris, the Supreme Court

concluded that an officer had acted reasonably in using

deadly force to terminate a dangerous car chase. But

the Court did not apply a per se rule. Instead, the

Court underscored that there is no “easy-to-apply legal

test in the Fourth Amendment context.” Scott 550 U.S.

at 383. The Court stressed that, in every case, it must

“must balance the nature and quality of the intrusion

on the individual’s Fourth Amendment interests

against the importance of the governmental interests

alleged to justify the intrusion.” Id. (quotation marks

omitted). The Court analyzed the lengthy “Hollywoodstyle car chase of the most frightening sort,” and

underscored that the driver in that particular case had

“posed an actual and imminent threat” to “pedestrians,”

“civilian motorists, and to the officers.” Id. at 380, 384.

In Plumhoff v. Rickard (which the Fifth Circuit’s

new doctrine relies upon heavily), this Court likewise

found an officer’s use of force to be reasonable in a car

“chase” that “exceeded 100 miles per hour,” “lasted over

five minutes,” and concluded that—based on those

facts—the driver “pose[d] a deadly threat for others on

the road.” 572 U.S. at 776-777. That extensive factual

analysis—focused on the specific danger the driver

posed—would have been unnecessary if there was a

per se rule permitting the use of deadly force against

a non-compliant driver. See also Mullenix v. Luna, 577

U.S. 7, 18 (2015) (driver was “fleeing arrest, at speeds

over 100 miles per hour,” “was armed and possibly

intoxicated,” “had threatened to kill any officer he saw,”

and was “racing towards” another officer’s “position”).

Instead of sloshing “through” the “factbound morass”

and “careful[ly] balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental

interests at stake” in accordance with this Court’s

decisions in Garner and Graham, the panel simply

concluded without any attempt at analysis or

balancing whatsoever that:

“all that a reasonable police officer could

have concluded was that [Barnes] was intent

on . . . flight and that, if he [were] allowed to

do so, he would . . . pose a deadly threat for

others on the road”—the vehicle would enter

traffic in the fast-lane of the freeway. Because

the very “fact that a suspect flees when

suspected of a minor offense could well be

indicative of a larger danger,” Felix faced

a split-second decision between only bad

options. Had Felix remained flatfooted on the

pavement, Barnes could have started a

perilous high-speed chase during rush hour

on Houston’s busiest toll road—or, even if he

did not speed away, he could have seriously

injured Felix with the car. Pet. App. 9-10.

The panel leaned heavily on this Court’s ruling in

Plumhoff in coming to this conclusion. However, in

direct contrast to the facts in this case, in Plumhoff

“Rickard led police officers on a high-speed car chase

that came to a temporary halt when Rickard spun out

into a parking lot. Rickard resumed maneuvering his

car, and as he continued to use the accelerator even

though his bumper was flush against a patrol car, an

officer fired three shots into Rickard’s car. Rickard

managed to drive away, almost hitting an officer in the

process. Officers fired 12 more shots as Rickard sped

away, striking him and his passenger, both of whom

died from some combination of gunshot wounds and

injuries suffered when the car eventually crashed.”

But the panel’s sole explanation of why Barnes’ actions

imperiled “others on the road” was to simply replace

the name “Rickard” with the name “Barnes” in quoting

Plumhoff: “all that a reasonable police officer could

have concluded was that [Barnes] was intent on . . .

flight and that, if he [were] allowed to do so, he

would . . . pose a deadly threat for others on the road.”

One page later the panel asserted that it had

considered the “totality of the circumstances” in

reaching its conclusion, but no such analysis is at all

evident in their opinion. In short, the panel totally

ignored this Court’s clear instruction that the case be

remanded to the lower courts “for further proceedings

consistent with this opinion” “to consider the reasonableness of the shooting, using the lengthier

timeframe we have prescribed,” and instead dashed off

a new opinion sua sponte without any arguments or

briefs on the merits, effectively rubberstamping the

end result of its original finding under its nowprohibited “moment of the threat” doctrine.

Given that the Fifth Circuit panel ignored longstanding Supreme Court precedent, its own precedent,

and this Court’s clear guidance on remand, this Court

should grant certiorari and take this case up for

review.

B. THE PANEL’S HOLDING CREATES A

DEEP CIRCUIT SPLIT.

The panel decision also creates a sizable circuit split.

As the Fifth Circuit already detailed in Lytle, a

“number of ” other circuits “have found police officers’

shooting of fleeing motorists to be unreasonable.” 560

F.3d at 416. Indeed, two years ago, the Third Circuit

outlined the “robust consensus of cases” across the

Courts of Appeals—including the Fifth Circuit’s decision

in Lytle—“establishing that” it is unreasonable to

shoot “an otherwise non-threatening individual . . .

engaged in vehicular flight.” Jefferson v. Lias, 21 F.4th

74, 81-86 (2021).

Thus, for example, the Fourth Circuit held in 2019

that an officer violated clearly established law when

he shot a fleeing driver but was not “in the car’s

trajectory.” Williams v. Strickland, 917 F.3d 763, 770

(2019). The Ninth Circuit has similarly held that an

officer acted unreasonably when he shot a driver as

a car “rolled backwards away from him.” Adams v.

Speers, 473 F.3d 989, 992 (2007). And in 2020, the

Tenth Circuit explained that the “use of deadly force is

clearly unreasonable when (1) the only threat is one

posed by reckless driving and (2) the immediacy of the

threat to the officer is a disputed fact that a reasonable

jury could resolve against the officer.” Reavis v. Frost,

967 F.3d 978, 994 (2020); see also, e.g., Vaughan v. Cox,

343 F.3d 1323. 1333 (11th Cir. 2003) (unreasonable to

shoot fleeing driver where “reasonable officer would

have known that firing into the cabin of a pickup truck,

traveling at approximately 80 miles per hour . . . would

transform the risk of an accident on the highway into

a virtual certainty”); Smith v. Cupp, 430 F.3d 766, 775

(2005) (explaining that “officer must have reason to

believe that the car presents an imminent danger”);

Cowan v. Breen, 352 F.3d 756, 763 (2003) (finding it

unreasonable to shoot a driver); McCaslin v. Wilkins,

183 F.3d 775, 779 (8th Cir. 1999) (same); Starks v.

Enyart, 5 F.3d 230. 234 (1993) (same).

The panel considered none of this authority—and in

so doing created a circuit split—in no small part

because it decided this consequential case without any

briefing. That panel then attempted to gloss over the

lack of any real logical underpinning to its decision by

simply claiming in the end that it could reach its

decision “based on the undisputed events depicted in

the video and Felix’s uncontested sworn testimony

[and] based on the totality of the circumstances, that

no genuine dispute of material fact exists as to

whether Felix used excessive force in an objectively

unreasonable manner at any time in the traffic stop.”

Therefore, “because the plaintiffs have failed to satisfy

the first step of the qualified-immunity analysis—

raising a dispute of material fact on whether Barnes’s

Fourth Amendment right to be free from excessive

force was violated—we do not reach whether the

violated right was ‘clearly established’ at the time of

the incident. Accordingly, the plaintiffs have failed to

meet their burden to defeat Felix’s invocation of

qualified immunity, and Felix is entitled to summary

judgment on the excessive- and deadly-force claims

against him. And as the plaintiffs have failed to show

a constitutional violation, their claims against the

county fail.” Pet. App. 11-12. But that assertion is false

on its face. Throughout the thousands of pages of

evidence, briefs and arguments that have been filed in

this case, the parties have made it clear that there is

substantial and substative disagreement as to the

facts of this case, and specifically Petitioner has made

it clear up to and including the letter briefs she filed

with the Court that “Felix’s uncontested sworn

testimony” was in fact highly contested, as it varied

substantially from one sworn statement under oath to

the next. As noted supra, all the parties agreed that

the Court had insufficient information and understanding in the case to render a judgment, and

certainly none of the parties was ever asked to argue

or brief the merits of the panel’s determination that

Barnes’ seconds-long attempt to escape custody posed

any real danger to Officer Felix or the public at large.

Instead, following the aberrant path it settled on when

it disregarded well-established procedural norms by

requesting short letter briefs on how to move forward

with the case with no guidance whatsoever as to the

issues to be addressed, and then proceeded without

delay to issue a ruling that completely shattered

existing precedent in fleeing suspect cases, the panel

leapt from a ten-page analysis of the problems

wrought by fleeing suspects to a convenient if facially

false assertion that it had, indeed, considered “the

totality of the circumstances” and then leaped once

again to the jolting conclusion that the extreme danger

posed by fleeing suspects resolved all of the remaining

controversies in the case.

Even if the proposed new “risk of flight doctrine” was

not by itself enough to give pause as it applies to this

one case, this corollary interpretation yields a far more

dangerous result: in direct conflict with Garner, courts

in the Fifth Circuit no longer have to “slosh” through a

morass of facts in order to determine whether deadly

force can be used to prevent any suspect from fleeing

custody, or even posing a mere risk of flight. Further,

while in this case the doctrine appears to address only

vehicular escapes, the lack of any balancing inquiry

whatsoever lends itself to an easy expansion to draw

in suspects on foot, suspects who might simply be

considering fleeing, or for that matter any suspects

who are resisting arrest. At a time when the

boundaries of qualified immunity are coming under

greater examination than at any time since that

policy’s inception, the Fifth Circuit opinion opens the

door for officers to justify deadly force by simply

asserting they believed a suspect was making plans to

escape custody. That alone should be a sobering thought.

C. THE USE OF DEADLY FORCE TO

PREVENT POSSIBLE EVASION AND

ESCAPE BY DETAINEES LACKS ANY

BASIS IN THE COMMON LAW.

This new Fifth Circuit doctrine also has no apparent

basis in the Anglo-American common law tradition.

That is unsurprising. The courts that have adopted

this counterintuitive rule root it in a misreading of

modern precedent. That this doctrine is of such

comparatively recent vintage provides yet another

reason to reject it. See Lange v. California, 594 U.S.

295, 309 (2021); Brief for Amici Curiae Cato Institute

et al. Amicus Br. 3-9.

At common law, officers could not “use more force

than [wa]s necessary.” Harvey Cortlandt Voorhees,

The Law of Arrest in Civil and Criminal Actions,

(1904). They faced civil liability “in trespass” for using

excessive force, and they were “guilty of manslaughter

or even murder” if they killed a suspect unnecessarily.

Id. Officers were specifically warned “to be very

careful that they do not misbehave themselves in the

discharge of their duty,” lest they “forfeit” their “special

protection” from prosecution. Foster, supra at 319; see

4 William Blackstone, Commentaries *180 (“[T]here

must be an apparent necessity on the officer’s side * * *

without such absolute necessity, it is not justifiable.”);

see also Brief for Amici Curiae Due Process Institute

et al. at 17-19 (discussing original purpose of Section

1983 in holding law enforcement accountable).

When assessing the propriety of an officer’s use of

force, common law courts evaluated the totality of the

circumstances. See, e.g., Barrett v. United States, 64

F.2d 148, 150 (D.C. Cir. 1933) (holding court improperly

“restricted the inquiry of the jury to the occasion of the

arrest and ignored precedent circumstances”); Colorado

v. Hutchinson, 9 F.2d 275, 278 (8th Cir. 1925) (allowing

jury to decide whether “under all the circumstances”

officer reasonably jumped onto car and shot driver);

Jackson v. State, 66 Miss. 89 (1888) (explaining that

officer who used deadly force against fleeing felon

must show other “means had failed,” and jury must

consider “all the circumstances attending the officer

and the deceased at the time”); Reneau v. State, 70

Tenn. 720, 722 (1879) (officers “will not be excused for

taking life in any case, where, with diligence and

caution, the prisoner could be otherwise held”).

In particular, considering the fleeing felon rule,

under that common law doctrine, officers could use

deadly force “to effect the arrest of a fleeing felon,

though not a misdemeanant.” Garner, 471 U.S. at 13;

see 1 Matthew Hale, Historia Placitorum Coronae

(1736). In other words, at common law, the lawfulness

of an officer’s use of force often hinged on “the severity

of the crime at issue.” Graham, 490 U.S. at 396. In

this case, the offense at issue was a trivial misde-

meanor: Barnes was driving with outstanding toll

violations. A common law court would likely have

considered the nature of Barnes’s offense in determining whether to impose civil or criminal liability on

Officer Felix. See Hale, supra at 481 (“[I]f a man be in

danger of arrest by a Capias in debt or trespass, and

he flies, and the bailiff kills him, it is murder.”). In

sharp contrast to the common law, however, the Fifth

Circuit’s new risk of flight doctrine prevented that

Court from evaluating the minor nature of the offense

which prompted Officer Felix’s deadly seizure. Pet.

App. 15a (Higginbotham, J., concurring).

In Garner, this Court rejected the fleeing felon

doctrine because criminal law evolved in ways that

undermined the foundations of the common law rule.

Felonies are no longer universally “punishable by

death,” as they were at common law, and many

“misdemeanors” “at common law are now felonies.”

Garner, 471 U.S. at 14. But the fact that a common

law court would consider the severity of Barnes’s

offense—and the Fifth Circuit could not—demonstrates

how this new doctrine has no basis in common law

tradition.

In addition—in direct contrast to the panel’s

unexplained determination that Officer Felix acted

appropriately and in full compliance with his training

when he leaped on board Barne’s car and then fired

two fatal shots within mere seconds— at common law,

officers who overstepped their authority and placed

themselves in dangerous situations faced liability for

using deadly force. As one treatise explained, “[i]f an

officer has brought peril upon himself by his own

unlawful act, * * * he will not be justified in taking the

life of his prisoner.” Voorhees, supra at 111; see

Commonwealth v. Weathers, 7 Luzerne Legal Reg. 1

(1892); Carter v. State, 17 S.W. 1102, 1105 (Tex. App.

1891) (explaining that where officer placed himself “in

a situation where” “it was necessary for him to defend

himself,” “the law justly limits his right of self-defense,

regulates it according to the magnitude of [the

officer’s] wrong”); Roberson v. State, 14 S.W. 902, 903

(Ark. 1890) (“[H]e could not justify a homicide, though

done in self-defense, for its necessity grew out of his

wrongful act.”).4

Here too, the new per se risk of flight doctrine is in

deep tension with the Anglo-American tradition. Again,

unlike at common law, this new doctrine ignores

everything the officer did prior to “the millisecond at

which an officer deploys deadly force.” Pet. App. 12a

(Higginbotham, J., concurring).

D. THE QUESTION PRESENTED IS EXCEPTIONALLY IMPORTANT, AND THIS

CASE OFFERS AN IDEAL VEHICLE TO

ADDRESS IT.

The question presented is extraordinarily important.

Janice Barnes is not the only parent grieving

the unnecessary loss of a child. Every year, law

enforcement officers deploy force or the threat of force

against approximately 1 million people in the United

States, leading to 75,000 injuries requiring hospital

treatment, and between 600 and 1,000 deaths.5 The

See also, e.g., William M. McKinney & Burdett A. Rich, eds.,

Ruling Case Law (1916) (“A peace officer who attempts illegally

to make an arrest * * * cannot plead self-defense in justification

of the killing of such person, where the necessity grows out of

resistance to such arrest ); Coleman v. State, 49 S.E. 716, 718 (Ga.

1905); Peter v. State, 5 S.W. 228, 230 (Tex. App. 1887).

Facts and Figures on Injuries Caused by Law Enforcement,

Law Enf’t Epidemiology Project, Univ. Of Ill. Chi.: Sch.

Fourth Amendment and its reasonableness standard

governs each interaction. See Graham, 490 U.S. at

396. The issue at the heart of this case—what facts

and circumstances a court may analyze when evaluating reasonableness—is critical to distinguishing the

constitutional use of force from unlawful encounters

that violate the foundational liberty protections

embodied in the Fourth Amendment.

Simply put, the Fifth Circuit’s new risk of flight

produces deeply unjust results, is unadministrable,

and bears little relationship to how many major police

departments train their officers. This Court should

not enshrine this illogical doctrine into constitutional

law.

The core question presented in this appeal is

exceptionally important—and exceptionally simple:

does the rule enshrined in Garner limiting the use of

deadly force to stop fleeing motorists still apply? As a

result of the panel’s decision, anytime a driver poses a

risk of leaving the scene of a “misdemeanor traffic

violation”—indeed, any traffic stop for any reason—

that driver poses the deadly threat of “a perilous highspeed chase,” and an officer may use deadly force to

stop the driver. Pet. App. 8, 10.

That holding will have devastating consequences,

greatly exacerbating the all-too common phenomenon

of deadly traffic stops. See Barnes, 91 F.4th at 398-399

(Higginbotham, J., concurring); Crane, 50 F.4th at 458

(Higginbotham, J.). In this case, a man tragically

and unnecessarily lost his life over “an outstanding

toll fee.” Barnes, 91 F.4th at 401 (Higginbotham, J.,

Of Pub. Health, https://policeepi.uic.edu/data-civilian-injurieslawenforcement/facts-figures-injuries-caused-law-enforcement/

(last visited May 20, 2024).

concurring). That result alone is deeply unjust, and

this matter cries out for this Court’s review.

1. The Risk of Flight Rule Unnecessarily

Expands the Umbrella Coverage of

Qualified Immunity.

As detailed above, longstanding precedent and the

common law have acted to shield fleeing suspects from

the use of deadly force by officers unless the suspects’

actions clearly demonstrate a grave risk to the officers

or the general public. Granted, as Justice Kavanaugh

and three others fully articulated in the concurrence

issued in conjunction with their previous decision in

favor of Petitioners, a suspect’s decision to flee raises

some serious concerns that should be considered by

a court (following a ”totality of the circumstances”

analysis as laid out in Garner), and such a scenario

typically yields no obvious right answers. But this

ruling by the Fifth Circuit attempts to transform those

real concerns and guidance into a massive expansion

of qualified immunity law by imposing a new per se

rule wherein any motorist posing a risk of flight (or, by

extension, a suspect on foot) will justify the use of

deadly force.

2. Risk of Flight Rule Mischaracterizes

Dangers Created by a Fleeing Suspect.

In a publication that was in process prior to issuance

of the Fifth Circuit’s opinion and was released roughly

a month later, The Harvard Law Review raised a

concern that the four-Justice concurrence “offered the

greatest insight into the potential future of deadly

force claims. Under traditional flight doctrine, the

plaintiff ’s decedent, Ashtian Barnes, was not ‘fleeing’

from the officer when he was shot. Yet the concurrence

mischaracterized his failure to comply with a police

order to exit his vehicle as flight. The concurrence

imprecisely applied the Court’s flight precedent to

Barnes’s noncompliance, an analytical approach lower

courts would be remiss to adopt. Doing so would

broaden the scope of behavior that can result in

officers legally deploying deadly force, potentially

facilitating the use of such force in everyday traffic

interactions.”6 Summarizing Kavanaugh’s analysis of

the various options available to officers when suspects

attempt to flee, the Law Review article noted:

“There are no . . . risk-free answers” to an officer who

encounters a fleeing driver, according to Justice

Kavanaugh. The officer could (1) “let the driver go,” but

this could cause a moral hazard for drivers; (2) “give

chase,” but this enhances the public safety risk;

(3) shoot at the car’s tires, but this is often ineffective

or even dangerous; or (4) “attempt to stop the fleeing

driver . . . by jumping on or reaching into the car,” as

Felix did, but this could endanger the officer and the

public.

As the concurrence itself makes clear, then, the only

real risk imposed by letting the driver escape is some

kind of “moral hazard”. Compared to the far more

significant risks imposed by all the other options,

therefore, it would seem to be a far superior

alternative to the use of any form of deadly force—and

yet the cursory analysis laid out in the Fifth Circuit

opinion came to the exact opposite conclusion. This is

the problem the Law Review so presciently addressed,

that “the concurrence could lead lower courts astray,

Harvard Law Review, Barnes v. Felix, 139 Harv. L. Rev. 291,

available at https://harvardlawreview.org/print/vol-139/barnes-vfelix/.

effectuating adverse doctrinal and practical consequences.” And that is precisely what has happened

here, making it imperative that this Court clarify its

guidance to those same courts by taking up this case

for further review.

3. Current events have left the public and

the police equally confused as to the

permissible use of deadly force in

police encounters.

As current events have underscored, never has there

been more need for clarity as to when a federal or local

agent may use deadly force against a suspect. The

deaths of Renee Good and Alex Pretti in Minneapolis

at the hands of agents of the Immigration and

Customs Enforcement agency have ignited a firestorm

of controversy regarding when a law enforcement

officer may employ deadly force. According to statements released by top law enforcement officials of

the current presidential administration in the wake of

these shootings, there are apparently few if any

limitations on their agents’ use of force. Newspapers

and other news outlets across the country are already

racing to reconcile this stance with this Court’s

previous opinion in Barnes, in particular whether the

officer in the Good shooting was justified using deadly

force against a fleeing suspect due to being physically

in some form of danger (a danger, like that of Officer

Felix’s, that was almost fully self-imposed).7

See, for example: David French, Trump and Vance Are

Fanning the Flames. Again., New York Times, January 11, 2026;

Rob Doar, Opinion | The cases for and against self-defense in the

killing of Renee Good, Minneapolis Star Tribune, January 12,

2026; Matt deGrood, What are the rules for police use of deadly

force? How the Supreme Court decided in a Texas case, Houston

The police community is equally interested in

clarification as to the use of deadly force in these

scenarios. Ruling for Petitioner will promote “effective

law enforcement.” Garner, 471 U.S. at 15-16. The

totality of the circumstances standard provides

officers a wide measure of discretion to respond to

dangerous circumstances. The Fifth Circuit’s new risk

of flight doctrine, by contrast, has no relationship to

real-world policing. Police officers protect and serve

their communities with courage and honor. Ruling for

Petitioner will not prevent officers from defending

themselves or the public.8

Under Graham, judges cannot second guess officers

with “the 20/20 vision of hindsight.” Graham, 490

U.S. at 396. Instead, they must evaluate an officer’s

conduct from the perspective of that particular officer

“on the scene.” Id. Where officers make reasonable,

“split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving”—they do not

run afoul of the Fourth Amendment. Id.

This generous standard permits officers to make

reasonable “mistake[s]” in the heat of the moment—

including mistakes that run counter to training,

mistakes that violate police procedure, and mistakes

that lead to unnecessary use of deadly force. Id.; see

Saucier v. Katz, 533 U.S. 194, 204 (2001) (“If an officer

Chronicle, January 13, 2026; Martin Kaste, State officials say

they’ll do their own probes of shootings by federal officers, NPR,

January 9, 2026; Chip Brownlee, Immigration agents are shooting

people. Is it legal?, MinnPost, January 14, 2026; Samantha

Michaels, Misconduct Expert Says State Has the Right to Charge

ICE Officer Who Killed Renée Good, Mother Jones, January 9, 2026.

See Seth W. Stoughton, The Legality of Deadly Force: Three

Critical Questions about the ICE Shooting in Minneapolis,

Verdict, January 9, 2026.

reasonably, but mistakenly, believed that a suspect

was likely to fight back, for instance, the officer would

be justified in using more force than in fact was

needed.”); Biegert v. Molitor, 968 F.3d 693, 698

(2020)(Barrett, J.) (recognizing that officers may make

reasonable mistakes without violating the Fourth

Amendment).

In addition, in every Section 1983 case, officers

receive the added protection of qualified immunity.

See Saucier, 533 U.S. at 205. An officer will thus not

face civil liability unless he both uses objectively

unreasonable force and “existing precedent” “placed

the statutory or constitutional question beyond debate.”

White v. Pauly, 580 U.S. 73, 79 (2017) (quotation marks

omitted). The combination of Graham’s lenient standard and qualified immunity dramatically reduces the

chance that “an officer” who “act[s] in good faith” will

be accidentally penalized. Kingsley v. Hendrickson, 576

U.S. 389, 400 (2015).

Ruling for Petitioner will reinforce how police use

force in the real world. Modern police departments

train officers on Graham v. Connor and the totality of

the circumstances standard.9 Nullifying Garner and

expanding the old common law fleeing felon rule to

cover all attempts by detainees to flee custody, by

contrast, conflicts with “policies adopted by” “police

departments” around the country. Garner, 471 U.S. at 18.

Osagie K. Obasogie & Zachary Newman, The Endogenous

Fourth Amendment: An Empirical Assessment of How Police

Understandings of Excessive Force Become Constitutional Law,

104 Cornell L. Rev. 1281, 1303 (2019) (use-of-force policies from

seventy five of the country’s largest cities universally “contain[ed]

a reference to the reasonableness standard from Graham v. Connor”).

If this Court allows the Fifth Circuit’s aberrant

ruling to stand by failing to take up this case for

review, it would open the door for other circuits to

follow suit, and any last remaining guardrails of

unconstitutional seizures (i.e. deadly force) will be

consigned to the dustbin of history.

CONCLUSION

For the foregoing reasons, we ask that this Court

take up this case for further review and a summary

reversal of the Fifth Circuit’s decision. We cannot give

Janice Hughes back the life of her son, but we can still

give her some measure of justice.

Respectfully submitted,

ADAM W. FOMBY

Counsel of Record

HOWARD R. FOMBY

FOMBY LAW FIRM

12141 Wickchester Lane

Suite 650

Houston, TX 77079

(346) 220-1196

adam.fomby@fombylaw.com

Counsel for Petitioner

February 12, 2026

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Fifth Circuit’s Opinion

(September 18, 2025) .......................................

APPENDIX B: District Court’s Order

(March 31, 2021) ..............................................

14a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed September 18, 2025]

————

No. 22-20519

————

JANICE HUGHES BARNES, Individually and

as Representative of the ESTATE OF ASHTIAN BARNES,

Deceased; TOMMY DUANE BARNES,

Plaintiffs-Appellants,

versus

ROBERTO FELIX, JR.; COUNTY OF HARRIS, TEXAS,

Defendants-Appellees.

————

Appeal from the United States District Court for the

Southern District of Texas

USDC No. 4:18-CV-725

————

ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

Before Elrod, Chief Judge, and Higginbotham and

Smith, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

As advances of the genre of the Morse code, with its

twenty-six letters and ten numerals, railroads, and

flight challenged the social order and perforce its legal

regime, today we repair to the horseless carriage with

its then unimaginable role in daily life, and as with

each of the past challenges to the essential task of

policing its usage. From a unanimous Supreme Court

came pretextual stops, enabling police officers to stop

an automobile upon probable cause that any traffic

violation has occurred, even if the stop is in search of

another violation.1 Even before that, the Court, aware

of the “inordinate risk confronting an officer as he

approaches a person seated in a vehicle,” had granted

officers the right to order the driver out of the vehicle.2

The import of these decisions cannot be understated,

as traffic stops are among the most common interactions the public has with police.

And while Mimms’s common-sense protection enables the officer to distance the driver from weapons

or contraband in the vehicle, it also prevents a highspeed car chase. The officer’s power to preempt flight

by separating the suspect from his vehicle is crucial as

“[a] driver who speeds away from a traffic stop can

pose significant dangers to both the officer and the

Whren v. United States, 517 U.S. 806, 810, 813 (1996) (holding

“the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has

occurred” and rejecting the argument that “the constitutional

reasonableness of traffic stops depends on the actual motivations

of the individual officers involved”); accord Heien v. North

Carolina, 574 U.S. 54, 60 (2014) (“[O]fficers need only reasonable

suspicion—that is, a particularized and objective basis for

suspecting the particular person stopped of breaking the law.”

(quotations and citation omitted)).

Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per

curiam) (holding police officer conducting lawful stop for traffic

violation may order driver out of vehicle as a matter of course

without violating the Fourth Amendment, even if officer has no

reason to suspect foul play from driver at time of the stop); accord

Maryland v. Wilson, 519 U.S. 408, 410 (1997) (confirming Mimms

rule applies to passengers as well as drivers).

surrounding community.” It follows that the choice to

use deadly force in such a situation is “presumptively

reasonable when the officer has reason to believe that

the suspect poses a threat of serious harm to the officer

or to others.”4

This well-settled precedent dictates the outcome of

this excessive-force case. Deputy Roberto Felix fatally

shot Ashtian Barnes on the Sam Houston Tollway.

Barnes’s parents sued Felix and Harris County under

42 U.S.C. § 1983.5 The district court granted summary

judgment on the plaintiffs’ excessive- and deadly-force

claims against Felix and their Monell claims against

Harris County.

Bound by this circuit’s “moment-of-threat” rule, we

affirmed.6 Under that doctrine, “[t]he excessive force

inquiry is confined to whether the [officer] was in

danger at the moment of the threat that resulted in

the [officer’s] shooting,” and “any of the officers’

actions leading up to the shooting are not relevant.”7

Barnes v. Felix, 605 U.S. 73, 87 (2025) (Kavanaugh, J.,

concurring).

Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir.

2009); see also Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)

(officer may take a life only if it is necessary to prevent an escape

and officer has probable cause to believe the suspect poses a

significant risk of physical harm to himself or another).

The plaintiffs also brought claims under the Texas Tort

Claims Act but have since abandoned them.

Barnes v. Felix, 91 F.4th 393, 397–98 (5th Cir. 2024).

Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (alterations in original) (citation omitted); see also, e.g., Fraire v. City of

Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of

what had transpired up until the shooting itself, [the suspect's]

movements gave the officer reason to believe, at that moment,

that there was a threat of physical harm.”).

While the Fifth, Second, Fourth, and Eighth Circuits

have applied this truncated analysis, the majority of

our sister circuits consider the totality of the circumstances in determining the reasonableness of an

officer’s use of deadly force.8 A concurring judge on this

See, e.g., St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir.

1995) (“We first reject defendants’ analysis that the police

officers’ actions need be examined for ‘reasonableness’ under the

Fourth Amendment only at the moment of the shooting. We

believe that view is inconsistent with Supreme Court decisions

and with the law of this Circuit.”); Carswell v. Borough of

Homestead, 381 F.3d 235, 243 (3d Cir. 2004) (“All of the events

leading up to the pursuit of the suspect are relevant.”); Abraham

v. Raso, 183 F.3d 279, 292 (3d Cir. 1999) (considering the totality

of circumstances even in the context of deadly force); Kirby v.

Duva, 530 F.3d 475, 482 (6th Cir. 2008) (“Where a police officer

unreasonably places himself in harm’s way, his use of deadly

force may be deemed excessive.”); Est. of Starks v. Enyart, 5 F.3d

230, 234 (7th Cir. 1993) (“If a fleeing felon is converted to a

‘threatening’ fleeing felon solely based on the actions of a police

officer, the police should not increase the degree of intrusiveness.”); Vos v. City of Newport Beach, 892 F.3d 1024, 1034 (9th

Cir. 2018) (“While a Fourth Amendment violation cannot be

established ‘based merely on bad tactics that result in a deadly

confrontation that could have been avoided,’ the events leading

up to the shooting, including the officers[’] tactics, are encompassed in the facts and circumstances for the reasonableness

analysis.” (citations omitted)); Fogarty v. Gallegos, 523 F.3d 1147,

1159–60 (10th Cir. 2008) (considering totality of the

circumstances leading up to the use of force, including “whether

an officer’s own ‘reckless or deliberate conduct’ in connection with

the arrest contributed to the need to use the force employed.”

(citation omitted)); Ayers v. Harrison, 650 F. App’x 709, 719 (11th

Cir. 2016) (“[The officer’s] argument that our precedent precluded

[the plaintiff] from advancing an ‘officer created danger’ theory at

trial is both factually and legally incorrect.”); Wardlaw v. Pickett,

1 F.3d 1297, 1303 (D.C. Cir. 1993) (“[W]hatever the circumstances prompting law enforcement officers to use force, whether

it be self-defense, defense of another or resistance to arrest,

where, as here, a [F]ourth [A]mendment violation is alleged, the

panel urged the Supreme Court to resolve the circuit

split over the application of a doctrine deployed daily

across this country.9

And it did. In a unanimous opinion, the Supreme

Court reversed, holding the moment-of-threat rule

improperly constrains a court’s temporal analysis of

whether an officer acted reasonably in using force.10

The Court found that Tennessee v. Garner and its

progeny control;11 any claim “that law enforcement

officers have used excessive force—deadly or not—in

the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its reasonableness stand-

inquiry remains whether the force applied was reasonable.”). But

see Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“[The officer’s]

actions leading up to the shooting are irrelevant to the objective

reasonableness of his conduct at the moment he decided to

employ deadly force.”); Waterman v. Batton, 393 F.3d 471, 477

(4th Cir. 2005) (“[T]he reasonableness of the officer’s actions in

creating the dangerous situation is not relevant to the Fourth

Amendment analysis; rather, reasonableness is determined

based on the information possessed by the officer at the moment

that force is employed.” (citations omitted)); Banks v. Hawkins,

999 F.3d 521, 525–26 (8th Cir. 2021) (“In any event, we evaluate

the reasonableness of [the officer’s] conduct by looking primarily

at the threat present at the time he deployed the deadly force.”

(citation omitted)).

Barnes, 91 F.4th at 401 (Higginbotham, J., concurring) (“This

case should have enjoyed full review of the totality of the

circumstances It is time for this Court to revisit this doctrine,

failing that, for the Supreme Court to resolve the circuit divide.”).

Barnes, 605 U.S. at 80 (“[T]he ‘totality of the circumstances’

inquiry into a use of force has no time limit.”).

Id. at 80–81; 471 U.S. at 8–9.

ard.” In doing so, the court must consider the

“totality of the circumstances.”13

Four justices also concurred in a separate writing of

Justice Kavanaugh, in which he emphasized the

weight courts should give to a suspect’s flight, however

innocuous the initial reason for the stop may be.14 He

stressed the dangers inherent in traffic stops, as

officers suffer a “tactical disadvantage when approaching an unknown vehicle, with limited visibility

and unpredictable threats,” and moreover, how the

dangers to the public and police “multiply” when a

driver flees.15 “[N]o easy or risk-free answers” present

themselves when a driver takes off.16 Letting the

driver go endangers the surrounding community and

creates perverse incentives,17 degrading the respect

due to those who protect and serve. Intervention is

even more dangerous, whether by giving chase, shooting out the driver’s tires, or jumping onto the vehicle.18

Thus, “[t]he Fourth Amendment [totality of the

circumstances] analysis must also take account of the

suspect’s attempt ‘to evade’ the officer by ‘flight.’”19 So

here, our analysis of Felix’s qualified-immunity defense “must appreciate the extraordinary dangers and

Graham v. Connor, 490 U.S. 386, 395 (1989).

Id. at 396 (quoting Garner, 471 U.S. at 8–9).

Barnes, 605 U.S. at 84–90 (Kavanaugh, J., concurring).

Id. at 85–86 (quotations and citation omitted).

Id. at 87.

Id. (“If doing nothing in response to a fleeing driver became

a known and regular practice among police officers, that would

presumably embolden some drivers who otherwise might have

thought twice about taking off.”).

Id. at 87–89.

Id. at 87 (quoting Graham, 490 U.S. at 396).

risks facing police officers and the community at large”

when a “driver has suddenly pulled away.”20

On remand, and with the power of the moment-ofthreat doctrine’s temporal strictures lifted away, we

review de novo whether summary judgment is proper

in light of the totality of the circumstances leading to

Barnes’s death.21 We AFFIRM.

To establish a Fourth Amendment violation based

on an officer’s use of excessive force, plaintiffs “must

show: (1) an injury[;] (2) which resulted from the use

of force that was clearly excessive to the need[;] and (3)

the excessiveness of which was objectively unreasonable.”22 The court considers the totality of the

circumstances, i.e., “(1) the severity of the crime at

issue, (2) whether the suspect posed an immediate

threat to the safety of officers or others, and (3)

whether the suspect was actively resisting arrest or

attempting to evade arrest by flight.”23 This is no

cursory review; the court must “slosh [its] way through

the factbound morass of reasonableness,” careful to

balance “the nature and quality of the intrusion on the

Id. at 90.

DeVoss v. Sw. Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018)

(citation omitted); Fed. R. Civ. P. 56(a).

Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013)

(quotations and citation omitted).

Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 332

(5th Cir. 2020) (citing Graham, 490 U.S. at 396).

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.”24

But when an officer invokes qualified immunity, as

here, the burden shifts to the plaintiff to first

demonstrate (1) the officer violated a constitutional

right and (2) “the unlawfulness of [the officer’s]

conduct was clearly established at the time.”25 “Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments,

and protects all but the plainly incompetent or those

who knowingly violate the law.”26

II.

The facts giving rise to the plaintiffs’ claims

unfolded in under two minutes. On April 28, 2016,

Deputy Felix patrolled the Sam Houston Tollway as a

traffic-enforcement officer for Harris County. A radio

broadcast around 2:40 p.m. alerted him to a Toyota

Corolla with outstanding toll violations. Felix located

and stopped the Corolla on the left shoulder of the

freeway soon thereafter—a reasonable decision given

his probable cause to believe a misdemeanor traffic

violation had occurred.27 The dashcam footage shows

Scott v. Harris, 550 U.S. 372, 383 (2007) (quotations

omitted); Graham, 490 U.S. at 396 (quotations and citations

omitted).

Dist. of Columbia. v. Wesby, 583 U.S. 48, 62–63 (2018)

(quotations and citation omitted).

Stanton v. Sims, 571 U.S. 3, 6 (2013) (quotations and

citations omitted).

Tex. Transp. Code § 370.177(a) (“[T]he operator of a vehicle

. . . that is driven or towed through a toll collection facility of a

turnpike project shall pay the proper toll. The operator of a

vehicle who drives or tows a vehicle through a toll collection

facility and does not pay the proper toll commits an offense. An

the Corolla’s taillights extinguish while its left blinker

remains on, indicating the driver turned the engine off

but kept the keys in the ignition.

At 2:43 p.m., Felix exited his vehicle, approached the

Corolla, and requested the driver’s license and proof of

insurance.28 The driver, Ashtian Barnes, told Felix

that he did not have his license and the car was rented

in his girlfriend’s name. Barnes began to reach around

the console and floorboard and rummage through

papers.29 Felix claimed Barnes maintained eye contact

with him as he did so, and Barnes stopped after Felix

repeatedly told him to “stop digging around.” Felix

said he smelled marijuana and asked Barnes if there

was anything in the car he should know about, and

called for backup.30 Barnes then claimed his identification was in the trunk, and opened it for Felix to

offense under this subsection is a misdemeanor punishable by a

fine not to exceed $250.”); see Whren, 517 U.S. at 810.

Tex. Penal Code § 38.02 (officer has a right to request driver’s

identifying information and proof of insurance); see also Delaware

v. Prouse, 440 U.S. 648, 658–60 (1979) (officer may permissibly

check the driver’s license and inspect the automobile’s registration and proof of insurance during a lawful traffic stop); United

States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (“In the

course of effectuating [a temporary detention], a police officer

may permissibly examine the driver’s license and registration

and run a computer check on them to investigate whether the

driver has any outstanding warrants and if the vehicle is

stolen.”).

See Reese v. Anderson, 926 F.2d 494, 496, 500–01 (5th Cir.

1991) (refusing to find excessive force where the suspect

repeatedly refused to keep hands raised and appeared to be

reaching for an object).

The Houston Police Department’s investigation of the

incident revealed Barnes had a criminal record and a loaded

handgun under the driver’s seat.

10a

retrieve himself. Barnes placed his keys near the

gearshift and the blinker turned off.

At 2:45 p.m., exercising his right of self-protection,

Felix ordered Barnes to exit the vehicle and placed his

right hand on his holster as the door opened.31

Ignoring Felix’s order, Barnes grabbed his keys,

started the engine, and began to drive away.32 Understandably, Felix recognized this conduct as an attempt

to flee.33 Felix said something to the effect of “don’t do

it.”

In that moment, “all that a reasonable police officer

could have concluded was that [Barnes] was intent on

. . . flight and that, if he [were] allowed to do so, he

would . . . pose a deadly threat for others on the

road”—the vehicle would enter traffic in the fast-lane

of the freeway.34 Because the very “fact that a suspect

Mimms, 434 U.S. at 110–11; see also United States v.

Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010) (officer

conducting traffic stop may investigate further upon reasonable

suspicion of additional criminal activity); United States v. Garcia,

592 F.2d 259, 260 (5th Cir. 1979) (per curiam) (holding that

reasonable suspicion “was supplied by the smell of the

marijuana”); United States v. Conley, No. 22-30037, 2023 WL

2327457, at *3 (5th Cir. Mar. 2, 2023) (per curiam) (unpublished)

(same).

See Young v. City of Killeen, 775 F.2d 1349, 1351, 1352–53

(5th Cir. 1985) (upholding the use of deadly force when the

suspect refused to exit the vehicle and “reached down to the seat

or floorboard of his car” as if to retrieve something).

Felix testified he “already had a perception of maybe

something, a weapon or him trying to flee at the same moment.”

Plumhoff v. Rickard, 572 U.S. 765, 777 (2014); see also

Barnes, 605 U.S. at 86 (Kavanaugh, J., concurring) (“[W]hen, as

in this case, the driver suddenly pulls away in the midst of a stop,

the risks multiply. A driver speeding away from a traffic stop

could easily endanger bystanders and other drivers.”).

11a

flees when suspected of a minor offense could well be

indicative of a larger danger,” Felix faced a splitsecond decision between only bad options.35 Had Felix

remained flatfooted on the pavement, Barnes could

have started a perilous high-speed chase during rush

hour on Houston’s busiest toll road—or, even if he did

not speed away, he could have seriously injured Felix

with the car.36 If Felix stepped onto the car, he could

at least hang on and command Barnes to stop.37

Felix mounted the doorsill with one foot, placing his

body partially inside the car. Then, as the vehicle

accelerated, Felix stepped on with both feet and yelled,

“don’t f---ing move!” twice. In the little time Felix had

to act, and with the little he knew about Barnes, Felix

did not act unreasonably in protecting himself and

possibly others.38 Instead, Felix—having spent eleven

Lange v. California, 594 U.S. 295, 331 (2021) (Roberts, C.J.,

concurring); see also Barnes, 605 U.S. at 86 (Kavanaugh, J.,

concurring) (“Fleeing from the traffic stop could suggest that the

driver is preparing to commit or has committed a more serious

crime—and is attempting to evade detection or arrest.”); Tex.

Penal Code § 38.04 (intentionally fleeing from police officer

attempting lawful detainment constitutes an offense). Felix

testified he “had nothing on Mr. Barnes, not even a name, so I

didn’t know who he was, what he was capable of or what he could

do. So for him trying to flee in this situation definitely threw up

a flag that there was something . . . that needed to be stopped.”

See Barnes, 605 U.S. at 87–89 (Kavanaugh, J., concurring)

(discussing an officer’s potential responses to flight, none of which

are “particularly good or safe options”).

See id.

See Graham, 490 U.S. at 396–97 (“[P]olice officers are often

forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving.”); Thompson v.

Mercer, 762 F.3d 433, 438 (5th Cir. 2014) (stating it was the

fleeing driver, and not the officer, “who intentionally placed

himself and the public in danger by unlawfully engaging in the

12a

years on the job with an Advanced Peace Officer

license—did exactly what he was trained to do.

As Felix clung to the doorframe of the accelerating

car, he withdrew then reinserted his weapon into the

passenger compartment toward the driver’s seat.

Barnes kept driving. Felix shot inside the vehicle,

“act[ing] reasonably in using deadly force to end [the]

risk [of flight].”39 And because Barnes still did not stop,

Felix acted reasonably in firing a second shot.40 Felix

continued to hold Barnes at gunpoint until backup

arrived, and Barnes was pronounced dead at the scene

at 2:57 p.m.

Based on the undisputed events depicted in the

video and Felix’s uncontested sworn testimony, we

find, based on the totality of the circumstances, that

no genuine dispute of material fact exists as to

whether Felix used excessive force in an objectively

unreasonable manner at any time in the traffic stop.41

reckless, high-speed flight that ultimately produced the [officer’s]

choice between two evils”); Davis v. Romer, 600 F. App’x 926, 930

(5th Cir. 2015) (finding argument that the “officer could have

moved away from the car is, unfortunately, a suggestion more

reflective of the peace of a judge’s chambers than of a dangerous

and threatening situation on the street” (cleaned up) (citation

omitted)).

Plumhoff, 572 U.S. at 777; see also Young, 775 F.2d at 1352–

53; Graham, 490 U.S. at 396–97.

See Plumhoff, 572 U.S. at 777 (“It stands to reason that, if

police officers are justified in firing at a suspect in order to end a

severe threat to public safety, the officers need not stop shooting

until the threat has ended.”).

See Fed. R. Civ. P. 56(a). The plaintiffs contend material

factual disputes exist regarding Barnes’s conduct during the stop.

Some allegations cannot be independently verified by the

dashcam footage and are supported only by Felix’s testimony,

which the plaintiffs claim varies “wildly.” True, Felix has

13a

And because the plaintiffs have failed to satisfy the

first step of the qualified-immunity analysis—raising

a dispute of material fact on whether Barnes’s Fourth

Amendment right to be free from excessive force was

violated—we do not reach whether the violated right

was “clearly established” at the time of the incident.

Accordingly, the plaintiffs have failed to meet their

burden to defeat Felix’s invocation of qualified

immunity, and Felix is entitled to summary judgment

on the excessive- and deadly-force claims against him.

And as the plaintiffs have failed to show a constitutional violation, their claims against the county fail.

Summary judgment is proper as to all claims against

Harris County. For the foregoing reasons, we

AFFIRM.

provided several explanations for his conduct, i.e., fear for his life

and the safety of others on the road, along with a suspicion that

Barnes’s flight indicated a more serious crime prompting his

evasion. But these reasons are not mutually exclusive. The

plaintiffs “provide no evidence to support their skepticism, and at

the summary judgment stage, we require evidence—not absolute

proof, but not mere allegations either.” Ontiveros, 564 F.3d at 383

(quotations and citation omitted). Moreover, our inquiry is one of

“objective reasonableness,” not subjective intent, viewed from

“the perspective of a reasonable officer on the scene.” Id. at 382;

Graham, 490 U.S. at 396. We need not venture to divine Felix’s

thoughts; instead, we ask whether a reasonable officer under

Felix’s circumstances would have resorted to deadly force to

protect himself and others and to prevent an attempted evasion.

14a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

————

Civil Action No. 4:18-CV-725

————

JANICE HUGHES BARNES, et al,

vs.

Plaintiffs,

ROBERTO FELIX JR., et al,

————

Defendants.

Filed: March 31, 2021

————

ORDER

————

Before the Court are Defendants’ Consolidated

Motion for Summary Judgment (the “Motion”) (Doc.

#42); Plaintiffs’ Response (Doc. #44), and Defendants’

Reply (Doc. #45). At issue is the lawfulness of an

officer’s actions during a traffic stop that ended, not

more than three minutes after it began, with the

officer having fatally shot the driver of the vehicle. The

question is whether the Court can consider the officer’s

conduct precipitating the shooting—which included

jumping onto a moving vehicle and blindly firing his

weapon inside—in determining whether the officer

used excessive force in violation of the Fourth Amendment. Under Fifth Circuit precedent, the answer is no.

The Motion is therefore granted.

15a

I. BACKGROUND

A. The Shooting

On April 28, 2016, Roberto Felix Jr., a traffic

enforcement officer for the Harris County Precinct 5

Constable’s Office, was patrolling the Sam Houston

Tollway. Doc. #42, Ex. 1 ¶ 4. At about 2:40 p.m., he

heard a radio broadcast from the Harris County Toll

Road Authority regarding a prohibited vehicle on the

Tollway. Id. After requesting more information, he

receive a license plate number for the vehicle and

began looking for it. Id. He located the vehicle, a

Toyota Corolla, and initiated the traffic stop by activating his emergency lights. Id. ¶ 5. The driver,

Ashtian Barnes, pulled over to the left shoulder of the

Tollway, and Felix parked his car behind the Corolla.

Id.

At about 2:43 p.m., Felix exited his vehicle and

approached Barnes. Id., Ex. 3, Video 1 at 85T14. When

Felix asked for Barnes’s driver’s license and proof of

insurance, Barnes informed him that he did not have

his license and that he had rented the vehicle a week

earlier in his girlfriend’s name. Id., Ex. 1 ¶ 5. Felix

stated that Barnes was reaching around the vehicle

and rummaging through papers. Id. ¶ 7. Several

times, Felix warned Barnes to stop “digging around.”

Id., Ex. 3, Video 1 at 85T14. Felix also asked Barnes

whether he had anything in the vehicle he should

know about, claiming he smelled marijuana. Id. At

some point, Barnes reached over and turned off the

vehicle’s ignition, placing his keys near the gear shift.

Id., Ex. 1 ¶ 7. Felix then told Barnes to open his trunk.

Id., Ex. 3, Video 1 at 85T14.

At about 2:45 p.m., Felix next asked Barnes to step

out of the vehicle, his right hand guarding his holster

16a

as the driver’s side door opened. Id. Felix stated that,

instead, Barnes grabbed his keys and turned on the

vehicle. Id., Ex. 1 ¶ 9. At that time, Felix was standing

next to the open driver’s side door. Id., Ex. 3, Video 1

at 85T14. Felix jumped onto the door sill of the vehicle,

though it is unclear whether that occurred before or

after the vehicle had already began accelerating. Doc.

#42, Ex. 1 ¶ 10; id., Ex. 5

¶ 27; Doc. #44, Ex. 2 at 90:19–24. As the vehicle

moved forward, Felix yelled, “Don’t fucking move!”

twice. Doc. #42, Ex. 3, Video 1 at 85T14. Felix briefly

drew his right hand out of the vehicle, holding onto his

gun, before reinserted toward Barnes. Id.; Doc. #44 at

96:11–16. One second later, Felix shot inside the

vehicle, his gun pointed downward, with “no visibility”

of where he was aiming. Id. at 94:13–15, 97:1–3; Doc.

#42, Ex. 3, Video 1 at 85T14. The next second, he fired

another shot. Id. After about two seconds, the vehicle

came to halt, and Felix yelled, “Shots fired!” into his

radio. Id. Felix held Barnes at gunpoint until backup

arrived, while Barnes sat bleeding in the driver’s seat.

Id., Ex. 1 ¶ 12; Doc. #44, Ex. 2 at 100:1–4. At 2:57 p.m.,

Barnes was pronounced dead at the scene. Doc. #42,

Ex. 5.

B. The Suit

Following the shooting, the Homicide Division of the

Houston Police Department investigated the incident

and presented a report to the Harris County District

Attorney’s Office. Doc. #44, Ex. 10 at 7. The District

Attorney’s Office presented the report to a grand jury

on August 26 and August 31, 2016. Id. The grand jury

ultimately returned a “no bill” in the case. Id. Harris

County Precinct 5 Constable’s Office also conducted an

internal investigation and found no violations of its

Standard Operating Procedures. Id.; id., Ex. 11.

17a

On December 29, 2017, Plaintiffs Janice Hughes

Barnes and Tommy Duane Barnes filed an Original

Petition in state court on behalf of Ashtian Barnes,

asserting claims against Felix and Harris County,

Texas (collectively “Defendants”) under 42 U.S.C.

§ 1983 and the Texas Tort Claims Act. 1 Doc. #1, Ex.

2. Defendants removed the action to this Court

on March 7, 2018. Doc. #1. Defendants now move for

summary judgment on Plaintiffs’ § 1983 claims, arguing that Felix did not violate Barnes’s constitutional

rights and is entitled to qualified immunity. Doc. #42.

Defendants also seek judgment as a matter of law as

to Plaintiffs’ municipal liability claims against Harris

County. Doc. #44.

II. LEGAL STANDARD

A Federal Rule of Civil Procedure 56

Summary judgment is proper if there is no genuine

dispute of material fact and the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P.

56. When a public official raises “a good faith assertion

of qualified immunity,” the plaintiff has the burden of

showing that the defense is not available. Joseph on

behalf of Est. of Joseph v. Bartlett, 981 F.3d 319, 329–

30 (5th Cir. 2020) (citing Orr v. Copeland, 844 F.3d

484, 490 (5th Cir. 2016)). To do so, the plaintiff must

first demonstrate “that there is a genuine dispute of

material fact and that a jury could return a verdict

entitling the plaintiff to relief for a constitutional

injury.” Id. at 330. Once qualified immunity is

involved, “the plaintiff’s version of those disputed facts

Plaintiffs do not address their cause of action under the Texas

Tort Claims Act in the Response to the Motion. See Doc. #44.

Because Plaintiffs have presented no evidence to support such

relief, those claims are hereby DISMISSED.

18a

must also constitute a violation of clearly established

law.” Id.

As with any motion for summary judgment, the

court “must view the facts in the light most favorable

to the non-moving party and draw all reasonable

inferences in its favor.” Newman v. Guedry, 703 F.3d

757, 761 (5th Cir. 2012) (quoting Devine v. Marcantel,

567 F.3d 156, 164 (5th Cir. 2009)). But the court will

“assign greater weight, even at the summary judgment stage, to the facts evident from video recordings

taken at the scene.” Id. (quoting Carnaby v. City of

Houston, 636 F.3d 183, 187 (5th Cir. 2011)).

B. Section 1983

Section 1983 imposes liability for “deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws” caused by any person acting

“under color of any statute, ordinance, regulation,

custom, or usage, of any State.” 42 U.S.C. § 1983. The

injured party may bring may a § 1983 claim against a

state actor in their individual or official capacity or

against a governmental entity of the state. SalazarLimon v. City of Houston, 826 F.3d 272, 277 (5th Cir.

2016), as revised (June 16, 2016)(citing Goodman v.

Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009)). To

prevail on a claim under § 1983, the plaintiff must

establish (1) a violation of a right secured by federal

law (2) that “was committed by a person acting under

color of state law.” Id. (quoting Whitley v. Hanna, 726

F.3d 631, 638 (5th Cir. 2013)).

1. Qualified Immunity Defense

When a public official asserts qualified immunity

against a § 1983 claim, the court must ask (1) whether

the alleged conduct violated a constitutional right

and (2) “whether the right in question was clearly

19a

established at the time of the alleged violation” as to

put the official “on notice of the unlawfulness of his

or her conduct.” Cole v. Carson, 935 F.3d 444, 451 (5th

Cir. 2019), as revised (Aug. 21, 2019), cert. denied

sub nom. Hunter v. Cole, 141 S. Ct. 111, 207 L. Ed. 2d

1051 (2020) (citing Tolan v. Cotton, 572 U.S. 650, 655–

56 (2014) (per curiam)) (internal quotation marks

omitted). “The officer is entitled to qualified immunity

if there is no violation, or if the conduct did not violate

law clearly established at the time.” Id.

The Supreme Court has walked back the requirement that a court must resolve the constitutional

question first, leaving it to the sound discretion of the

courts to decide “the order of decision- making that

will best facilitate the fair and efficient disposition of

each case.” Pearson v. Callahan, 555 U.S. 223, 236

(2009); cf. Saucier v. Katz, 533 U.S. 194, 201 (2001)

(requiring courts considering qualified immunity

claim to first address whether a violation occurred to

promote “the law’s elaboration from case to case”).

Even so, the Fifth Circuit has recognized the “value in

addressing the constitutional merits to develop robust

case law on the scope of constitutional rights.” Joseph,

981 F.3d at 332. Thus, the Court’s analysis proceeds

under the first prong—whether Felix violated

Barnes’s constitutional right to be free from excessive

force.

III. ANALYSIS

Any claim “that law enforcement officers have used

excessive force—deadly or not—in the course of an

arrest, investigatory stop, or other seizure of a free

citizen should be analyzed under the Fourth Amendment and its reasonableness standard.” Graham v.

Connor, 490 U.S 386, 395 (1989) (citing Tennessee v.

Garner, 471 U.S. 1 (1985)). To establish a Fourth

20a

Amendment violation based on an officer’s use of

excessive force, the plaintiff must show (1) an injury,

(2) “which resulted from the use of force that was

clearly excessive to the need,” (3) “the excessiveness of

which was objectively unreasonable.” Ramirez v.

Martinez, 716 F.3d 369, 377 (5th Cir. 2013)(quoting

Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)).

Ordinarily, a court considers three factors in

determining whether an officer’s use of force was

reasonable: “(1) the severity of the crime at issue, (2)

whether the suspect posed an immediate threat to the

safety of officers or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade

arrest by flight.” Joseph, 981 F.3d at 332 (citing

Graham v. Connor, 490 U.S. 386, 396 (1989)). But in

cases involving the use of deadly force, the Fifth

Circuit has developed a much narrower approach,

effectively eschewing the first and third factors. In this

Circuit, the use of deadly force is “presumptively

reasonable when the officer has reason to believe that

the suspect poses a threat of serious harm to the officer

or to others.” Ontiveros v. City of Rosenberg, Tex., 564

F.3d 379, 382 (5th Cir. 2009) (citing Mace v. City of

Palestine, 333 F.3d 621, 623 (5th Cir.2003)). And so,

when an officer in this Circuit reasonably believes he

has encountered such a threat, the constitutional

inquiry ends there. 2 See Manis v. Lawson, 585 F.3d

To be sure, this approach is not uniform among the circuit

courts of appeals. The Seventh, Six, and Tenth Circuits have

adopted a more nuanced framework when the officer’s own

conduct exacerbates the excessiveness of the deadly force used.

See Est. of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (“If a

fleeing felon is converted to a ‘threatening’ fleeing felon solely

based on the actions of a police officer, the police should not

increase the degree of intrusiveness.); Kirby v. Duva, 530 F.3d

475, 482 (6th Cir. 2008) (“Where a police officer unreasonably

21a

839, 843 (5th Cir. 2009) (citing Ontiveros, 564 F.3d at

382) (“An officer’s use of deadly force is not excessive,

and thus no constitutional violation occurs, when the

officer reasonably believes that the suspect poses a

threat of serious harm to the officer or to others.”).

In evaluating the reasonableness of the officer’s

belief, the court must only ask “whether the officer or

another person was in danger at the moment of the

threat that resulted in the officer’s use of deadly force.”

Rockwell, 664 F.3d at 991 (5th Cir. 2011) (quoting

Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th

Cir.2001)) (alterations omitted and emphasis in original); Fraire v. City of Arlington, 957 F.2d 1268, 1276

(5th Cir. 1992) (citing Young v. City of Killeen, 775

F.2d 1349, 1352 (5th Cir.1985)) (“[R]egardless of what

had transpired up until the shooting itself, [the

suspect’s] movements gave the officer reason to

believe, at that moment, that there was a threat of

places himself in harm’s way, his use of deadly force may be

deemed excessive.”); Fogarty v. Gallegos, 523 F.3d 1147, 1159–60

(10th Cir. 2008) (citation omitted) (“We also consider whether an

officer’s own ‘reckless or deliberate conduct’ in connection with

the arrest contributed to the need to use the force employed.”);

but see Cnty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539,

1546, 198 L. Ed. 2d 52 (2017) (citing Billington v. Smith, 292

F.3d 1177, 1189 (9th Cir. 2002)) (striking down Ninth Circuit

permitting excessive force claim under Fourth Amendment

“where an officer intentionally or recklessly provokes a violent

confrontation, if the provocation is an independent Fourth

Amendment violation”). Similarly, the Third Circuit considers

the totality of the circumstances, even if deadly force is involved.

See Abraham v. Raso, 183 F.3d 279, 289 (3d Cir.1999) (“Giving

due regard to the pressures faced by the police, was it objectively

reasonable for the officer to believe, in light of the totality of the

circumstances, that deadly force was necessary to prevent the

suspect’s escape, and that the suspect posed a significant threat

of death or serious physical injury to the officer or others?”).

22a

physical harm.”). To that end, courts in this Circuit

should focus on “the act that led the officer to

discharge his weapon.” Amador v. Vasquez, 961 F.3d

721, 728 (5th Cir. 2020), cert. denied, No. 20-585, 2021

WL 850625 (U.S. Mar. 8, 2021) (quoting Manis, 585

F.3d at 845) (alteration omitted). In doing so, the

court must view the act “from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight,” taking into account “that

police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. (quoting Darden v. City

of Fort Worth, Tex., 880 F.3d 722, 729 (5th Cir. 2018));

see Ramirez v. Knoulton, 542 F.3d 124, 129–30 (5th

Cir. 2008) (quoting Flores v. City of Palacios, 381 F.3d

391, 399 (5th Cir. 2004)) (internal quotation marks

omitted) (“To gauge the objective reasonableness of the

force used by a law enforcement officer, [the court]

must balance the amount of force used against the

need for force, paying careful attention to the facts and

circumstances of each particular case.”).

With that framework in mind, the Court now turns

to the facts in the record, viewing them in the light

most favorable to Plaintiffs. See Newman, 703 F.3d at

761. Because the record contains a dash cam recording

of the incident, the Court starts there. Id. In

chronological order, the dash cam video shows the

following:



Felix pulls over Barnes’s vehicle at 2:43 p.m.

and walks over to the vehicle about a minute

later.



Beginning at 2:45 p.m., Barnes orders Barnes

to “stop digging around” at least three times.



23a

Barnes tells Felix that he has identification in

the trunk.



At about 2:45:33, the trunk opens.



At about 2:45:43, Felix asks Barnes to step out

of the vehicle, and it appears that Barnes

opens the driver’s-side door.



As the door opens, Felix’s right hand was on

the holster of his gun.



At about 2:45:48, the vehicle’s taillights turn

on.



About one second later, Felix draws his gun,

and the vehicle starts to move forward.



Felix appears to step onto the door sill of the

vehicle as the door begins to close.



As the vehicle accelerates, Felix yells, “Don’t

fucking move!” twice.



Felix briefly pulls his gun hand out of the

vehicle.



At about 2:45:52, Felix fires his first shot.



Two seconds later, the vehicle comes to a

complete stop.

Doc. #42, Ex. 3, Video 1 at 85T14.

Plaintiffs have not cited any evidence that would

obfuscate the events depicted in the dash cam recording. Rather, Plaintiffs point to Felix’s inconsistent

testimony regarding the events leading up to the

shooting. For instance, Felix stated that he jumped

onto the door sill because he was afraid the door would

close on him, causing him to be “pinned” and “drug” by

the vehicle. Doc. #44, Ex. 2 at 91:19–94:3, 178:8–9; id.,

Ex. 3 at 12; id., Ex. 7 at 3; id., Ex. 8 at 2; see also id. at

24a

11 (“[M]y initial reaction was, I’m going to get run

over.”); id. at 12 (“When he drove off and that door

pinned me . . . I believed if I were to let go I would have

got run over by the car.”); id. at 14 (“The only option

that I had at that point was to grab a hold of something

and my body reacted to hold on and jump on.”). Yet,

Felix’s testimony also suggests that he was determined to prevent Barnes from fleeing, even before

the vehicle began to move, ostensibly to protect the

general public. Id., Ex. 2 at 80:17–19, 106:23–107:2;