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The Constitution does not arrive at the scene of the crime in time to stop the killing. That has always been true. But until now, it has at least had the opportunity to arrive afterward; to ask what happened, weigh the facts, and reckon with the power used. Now, even that may be slipping away.
An underexamined Supreme Court case, Barnes v. Felix, which could be decided any day, may close the door on the postmortem reckoning, leaving the Constitution as a distant echo.
When the U.S. Supreme Court convened to hear oral arguments in the case in January, it took up a question that tests the outer bounds of reasonableness under the Fourth Amendment: Must courts evaluating a police officer’s use of force examine the entire encounter, or may they isolate only the split second in which an officer claims to have perceived a threat? The answer will determine how the law defines accountability in the exercise of state power—whether the Constitution arrives at the scene of police violence to cradle the dying or wraps itself around the one who pulled the trigger.
The case arose from the fatal police shooting of Ashtian Barnes, who was pulled over by Officer Roberto Felix on a Texas toll road in 2016 for an unpaid toll. The balance owed was $6.45—an amount Barnes, who had rented the vehicle, neither accrued nor knew existed. During the stop, it is alleged that Barnes began to drive away with his door open. Officer Felix mounted the side of the moving car and, within seconds, fired his gun with “no visibility,” killing Barnes.
A federal district court granted summary judgment to Felix, removing the question of whether the shooting was reasonable from a jury and declaring the killing legally justified as a matter of law. The U.S. Court of Appeals for the 5th Circuit affirmed, holding that courts may only assess whether he was in danger at the precise moment he fired the shot, regardless of how the encounter was created or escalated.
That is what police chose to pursue that day: a toll violation worth less than a fast-food meal, tied to a charge Barnes neither owed nor knew existed. And that is what he was killed over. Because the officer lived and Barnes did not, the story that survives is the one the state has authorized us to hear. The legal record rests on Felix’s account. Not because it is more credible, but because the man who could have contradicted it is dead. Barnes’ story—his fear, his confusion, his decisions—cannot be weighed, and vanished with him when he took his last breath. In death, the law renders him a legal nullity.
This interpretive framing, what petitioners and amici have termed the “moment of threat” doctrine, presents a consequential question: whether the Fourth Amendment permits courts to assess reasonableness based solely on the narrowest slice of time or whether it requires an evaluation of the officer’s entire course of conduct during the seizure. Beyond the pettiness of the violation that led to the stop, that conduct included Felix shoving his gun into Barnes’ head as the car supposedly started to move and then allegedly firing blindly into the vehicle. Barnes’ own reasonable terror at this moment does not factor into the equation—just that of Felix.
The petitioner in this case is Barnes’ mother, Janice Hughes Barnes. She is represented by Nathaniel Zelinsky, who argued that the 5th Circuit applied an impermissibly narrow test. Under the Fourth Amendment, the use of force is a “seizure” subject to the constitutional requirement of reasonableness. In Tennessee v. Garner and Graham v. Connor, the court articulated a balancing test to be used in such cases: Courts must weigh the nature and quality of the intrusion on an individual’s Fourth Amendment rights against the government’s interest in effectuating the seizure, taking into account the totality of the circumstances. No single factor is dispositive.
In practice, however, courts have increasingly defaulted to a compressed inquiry: whether the officer “reasonably feared for their safety” at the exact moment force was used. This truncation is most evident in circuits like the 5th, where Graham’s totality-of-the-circumstances standard has been reshaped into a snapshot test. The result is a legal frame that filters out causation and context, omitting how an officer’s own conduct may have transformed a stop into a deadly encounter.
At oral argument, Zelinsky stressed that Scott v. Harris and Plumhoff v. Rickard—cases the government often cites for deference to police decisions—still require courts to assess all relevant facts, including the officer’s conduct preceding the use of force. He quoted Justice Antonin Scalia’s recognition in Scott that courts must “slosh through the fact-bound morass of reasonableness.” That morass, Zelinsky argued, includes an officer’s decision to jump onto a supposedly moving vehicle during a stop for unpaid tolls.
The Department of Justice, represented by Zoe Jacoby of the Office of the Solicitor General, urged the court to vacate and remand. Jacoby argued that the 5th Circuit’s categorical rule was incompatible with established Fourth Amendment precedent. While she described the moment of danger as potentially having “prime importance” under Graham, that characterization reflects a rhetorical emphasis more than a doctrinal one. Graham imposes no such hierarchy and instead calls for a holistic assessment of “the facts and circumstances of each particular case.” Jacoby ultimately affirmed that a proper Fourth Amendment inquiry must account for the whole arc of events, including whether the officer’s actions created the peril later invoked to justify force.
But at oral argument, the most revealing posture came from the officer’s counsel, Charles McCloud. He claimed that no true “moment of threat” doctrine existed and that the petitioner was inventing a label to distort the 5th Circuit’s reasoning. He insisted that the court below did not prohibit pre-shooting context entirely, but merely limited how far courts could go in using it to assign blame. According to McCloud, courts can see context but not act on it. To acknowledge the officer’s behavior before using force but not weigh it in the constitutional balance.
And as some of the liberal justices’ questions emphasized, that distinction is merely constitutional sleight of hand. To admit facts but strip them of consequence is to neuter the Fourth Amendment’s reasonableness standard. It turns causation into atmosphere, escalation into suggestion. The facts explaining how and why force became fatal are reduced to background noise. And if fear, however unreasonable, is treated as a sufficient shield, then the law becomes little more than the officer’s version of events, formalized.
McCloud went further, rejecting the concept of “officer-created danger” as a dangerous expansion of liability. He warned that allowing courts to consider whether an officer’s poor tactics contributed to the danger would amount to punishing negligence rather than constitutional wrongdoing.
But what those awaiting this rule should understand is that this is not about punishing imperfection. It is about recognizing that state violence is often the result of a chain of decisions—decisions that courts must be able to evaluate. When a police officer jumps onto a moving car, turns a minor infraction into a fatal encounter, and then claims fear, the question is not whether their panic was real. The question is whether the violence resulting from that panic was constitutionally protected.
Even the current standard is far from perfect. Courts are instructed to see through the eyes of a “reasonable officer,” but that phrase conceals a thousand assumptions. Most federal judges have never been stopped and searched, never been presumed criminal, and never had to teach their children how to survive a police encounter. Their perception of reasonableness is shaped not by proximity to force, but by distance from it. They understand the officer’s fear. They have never had to consider the victim’s.
“Objective reasonableness” was supposed to prevent second-guessing and restrain hindsight. In practice, it has blinded foresight, preventing courts from asking whether different choices could have made violence unnecessary. The lens the doctrine prescribes does not protect people. It protects perception. And perception, like fear, is deeply racialized. The Black man reaching for his registration becomes a threat. The teenager running away becomes a suspect. The doctrine no longer asks whether the force was necessary. It asks only whether the officer’s fear can be retroactively made plausible.
Although some justices expressed interest in a restrained ruling, the consequences of such a decision would be meaningful. A holding that courts may—and must—consider pre-force conduct to the extent it bears on reasonableness would mark a clear repudiation of the 5th Circuit’s categorical approach. It would also reaffirm that constitutional accountability cannot be reduced to a two-second frame.
Such a ruling would not revolutionize excessive force litigation or open the floodgates to liability. Officers would remain protected by qualified immunity in many cases, and courts could still find that the use of force was reasonable when viewed in full context. But the constitutional terrain would shift in one essential respect: Courts would no longer be permitted to truncate the narrative. They would be obligated to assess the entire sequence of events leading to the use of force, including whether the officer’s own decisions escalated the encounter or foreclosed safer alternatives.
The inquiry would become fuller, more honest, and more faithful to the Fourth Amendment’s command of reasonableness, not just at the trigger’s pull, but in everything that made the trigger feel necessary. It would widen the evidentiary lens, allowing courts to see how an encounter unfolded rather than freezing judgment at its most violent moment.
This case, like countless others entangling Black lives, lays bare the fiction of neutrality: The ruling may wear the mask of universality, but its consequences fall with racial precision.
But a deeper question—one the court may not confront in its ruling, though the case aches with it—is how much weight the “moment of threat” should be allowed to carry and for whom. Because in American policing, fear is not neutral. It is racialized, weaponized, and unevenly believed. Yet during the oral arguments, race is not spoken aloud. The transcript of oral arguments will record every word spoken, but it’s the silences that indict. What the court and counsel refused to say matters as much, if not more, than what they did. What to Black Americans is central is rendered incidental, treated as context too fraught to name. It may be a background fact to the court, but it should be a foreground argument. Because when race is left unspoken, it distorts the very frame of the question: not just how much force is reasonable, but whose fear is credited, whose life is risked, and whose death the law is willing to narrate as justified. The “moment of threat” doctrine is not just a temporal framing. It is racial one. And until courts are forced to reckon with that, their analysis will remain incomplete—formally precise but morally vacant. Legally intricate but constitutionally hollow.
There is a bone-chilling sickness in knowing that constitutional law is being shaped through the corpses of Black people killed for things so trivial. That attorneys are litigating the boundaries of state power not through grand clashes of rights and authority but through toll violations, traffic stops, loose cigarettes, and toy guns. That the constitutional framework for judging lethal force is being built, brick by brick, on administrative error and blood.
At its core, Barnes v. Felix presents a jurisprudential question about what counts as legally visible. The petitioner does not ask the court to create new doctrine, only to restore the one already written into the Fourth Amendment: that reasonableness is a question of context, not of isolated frames. It is a request not for innovation but for constitutional memory.
The court now has the opportunity to clarify that the Constitution applies to the full arc of a seizure and not just its final seconds. In doing so, it may reaffirm a Fourth Amendment standard robust enough to measure not just how state power ends, but how it begins.
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