By Robert Phillips  
Deputy District Attorney (ret.) 

The U.S. Supreme Court recently published a decision defining the often-used phrase “totality of the circumstances.”  

Used in a number of different contexts, we most often see it when a court is asked to evaluate the reasonableness of a law enforcement officer’s use of force in making an arrest. In such a case, the court is to consider all of the surrounding circumstances leading up to the use of force in evaluating whether the force used was constitutionally reasonable under the Fourth Amendment.  

In the Fifth Circuit, case law set out the rule that this is to be limited to the situation existing “at the moment of the threat.” The most recent example was described in the case of Barnes v. Felix (5th Cir. 2024) 91 F.4th 393. In this case, an officer jumped onto the running board of suspect Ashtian Barnes’ car as Barnes attempted to drive away. (An interesting side note is the fact that Barnes’ crime was the relatively insignificant offense of failing to pay some road tolls.)  

Saying he feared for his life, the officer shot and killed Barnes. In evaluating the reasonableness of this shooting, the Fifth Circuit limited the “totality of the circumstances” to “the two seconds before (the officer) fired his fatal shot, when he was ....