CA5: This circuit’s “moment of threat” doctrine for excessive force should be re-examined as contrary to Garner

The “moment of threat” doctrine of excessive force cases in this circuit seems contrary to Tennessee v. Garner, and it should be revisited by the whole court. Barnes v. Felix, 2024 U.S. App. LEXIS 1530 (5th Cir. Jan. 23, 2024):

Here, given the rapid sequence of events and Officer Felix’s role in drawing his weapon and jumping on the running board, the totality of the circumstances merits finding that Officer Felix violated Barnes’s Fourth Amendment right to be free from excessive force. This officer stepped on the running board of the car and shot Barnes within two seconds, lest he get away with driving his girlfriend’s rental car with an outstanding toll fee. It is plain that the use of lethal force against this unarmed man preceded any real threat to Officer Felix’s safety-that 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. This case should have enjoyed full review of the totality of the circumstances. The moment of threat doctrine is an impermissible gloss on Garner that stifles a robust examination of the Fourth Amendment’s protections for the American public. It is time for this Court to revisit this doctrine, failing that, for the Supreme Court to resolve the circuit divide over the application of a doctrine deployed daily across this country.