On May 15, 2025, the U.S. Supreme Court unanimously rejected the “moment-of-threat” test for analyzing the reasonableness of force used by law enforcement under the U.S. Constitution in Barnes v. Felix, 605 U.S. ___ (2025). Under the moment-of-threat test, applied by the Fifth Circuit, the reasonableness of deadly force was determined based only on the circumstances of the moment immediately preceding the use of force – in this case, the two seconds prior to the shooting. Under the Barnes decision, all courts must assess the “totality of the circumstances,” without limitation as to time, to include relevant events leading up to the use of force. Relevant factors include the severity of the crime, suspect conduct, and threat level. This now-nationwide test applies to all uses-of-force, including but not limited to deadly force.
The Ninth Circuit—which covers California—was already applying the totality-of-the-circumstances test; four other circuits had adopted a “moment-of-threat” rule. Barnes v. Felix reminds law enforcement agencies in California that a use of force analysis requires a broad evaluation of all relevant circumstances leading up to the use of force, and that it is improper to limit the analysis to the moment force was used. This broad perspective should determine how, in the context of administrative discipline matters, law enforcement managers assess the reasonableness of force.
The Court expressly did not decide the separate question of whether or how an officer’s own “creation of a dangerous situation” factors into the reasonableness analysis.
On April 28, 2016, Officer Roberto Felix Jr. pulled over Ashtian Barnes after learning that Barnes’s Toyota Corolla was associated with outstanding toll violations. Officer Felix contacted Barnes at the driver’s side window. Officer Felix smelled marijuana as Barnes rummaged through some papers inside the vehicle. Barnes said his driver’s license may be in the trunk and, at Officer Felix’s request, opened the trunk and turned the car off.
Officer Felix asked Barnes to step out of the car. Barnes opened the door but remained in the car, turned it back on, and drove forward. As Barnes drove forward, Officer Felix drew his firearm and jumped onto the sill of the open car door. About two seconds later, Felix fired two rounds into the driver’s compartment of the moving vehicle, killing Barnes.
The district court defined the relevant moment of the threat as the two seconds that elapsed between Officer Felix jumping onto the door sill and firing the first shot. The district court concluded Officer Felix was at risk of serious harm during those two seconds; therefore, he was justified in using deadly force. The Fifth Circuit Court of Appeals upheld this ruling.
In reversing the Fifth Circuit, the Supreme Court was clear that the totality of the circumstances inquiry has no time limit and is only concerned with relevance. It stated that the “moment-of-threat” rule limits attention to context, “and thus conflicts with this Court’s instruction to analyze the totality of the circumstances (Graham v. Connor, 490 U.S. 386 (1989)).” The Court noted that circumstances at the precise time of the shooting will often be what matters most, but earlier facts and circumstances can shape how a reasonable officer understands and responds to later ones.
The Court’s decision in Barnes v. Felix echoes principles it laid out in County of Los Angeles v. Mendez 581 U.S. 420 (2017), where it rejected the Ninth Circuit’s “provocation rule.” In Mendez, the Court held that excessive force claims must stand on their own under the Fourth Amendment and cannot be based solely on earlier constitutional violations—such as an unlawful entry – unless those violations directly caused the force. (Liebert Cassidy Whitmore authored amicus briefs filed in both Mendez and Felix.) Taken together, the cases underscore that the constitutional reasonableness of force must be evaluated based on all relevant facts and circumstances, not limited to the moment the force was used or tainted by unrelated constitutional missteps.
While Barnes v. Felix reaffirms the constitutional Fourth Amendment standard of objective reasonableness under the totality of the circumstances for any type of force, California has its own additional statutory standard for deadly force. Under Penal Code section 835a, deadly force may only be used when the officer reasonably believes it is necessary to defend against an imminent threat of death or serious bodily injury, or to apprehend a fleeing felon who poses such a threat. The statute also requires that officers use available de-escalation tactics and consider less-lethal alternatives when reasonably safe and feasible. Agencies must ensure that their use-of-force policies and internal reviews comply with both federal and state standards.
Uses of force, and agencies’ responses to them, can affect public trust, criminal, civil, and administrative liability. It is critical that law enforcement leadership base policy on, train to, and analyze administrative use of force cases under, the correct legal standard. Agencies should consult with trusted legal counsel to ensure compliance.
Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.