How did different circuits apply the ‘moment-of-threat’ rule before the Supreme Court’s decision?
Executive summary
Federal courts were sharply divided before the Supreme Court’s ruling: a minority of circuits—most notably the Fifth, along with the Second, Fourth, and Eighth in practice—applied a compressed “moment-of-threat” window that confined Fourth Amendment reasonableness review to the instant an officer perceived danger, while a majority of circuits insisted on a non‑temporal “totality of the circumstances” inquiry that includes pre‑shooting conduct; that split prompted the Supreme Court to intervene and reject the moment‑of‑threat rule [1] [2] [3].
1. The Fifth Circuit’s tight two‑second framing: the archetype of the moment‑of‑threat approach
The Fifth Circuit’s iteration of the doctrine treated the “precise moment of the threat” as the dispositive frame for assessing deadly force—here, the panel concluded the relevant window was the two seconds when the officer clung to the car’s doorsill and thus upheld summary judgment for the officer under that narrow analysis [4] [5]; Judge Higginbotham, while voting to affirm, expressly warned that the Fifth Circuit’s approach “narrows” Graham’s totality inquiry and excludes consideration of the officer’s conduct leading up to the shooting [6] [7].
2. Circuits that embraced moment‑of‑threat and why proponents defended it
A smaller set of appellate courts applied some variant of the moment‑of‑threat rule—law firms and commentators credited the Second, Fourth, Fifth, and Eighth Circuits with versions of the doctrine—arguing that split‑second police decisions should be judged by what was knowable at the instant danger was perceived, not by a backward‑looking parade of antecedent events that could criminalize reasonable on‑the‑spot judgments [2] [1] [8] [9].
3. The majority approach: totality of the circumstances across eight circuits
Most circuits rejected temporal truncation and required courts to consider the full context, explicitly including an officer’s prior actions that might have created or influenced the danger; the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits followed this totality test, treating Graham’s multi‑factor reasonableness analysis as non‑limited in time [3] [10] [7].
4. The practical and doctrinal clash: what each regime gives and takes away
Advocates for the moment‑of‑threat doctrine warned that a broader review could unfairly second‑guess split‑second decisions and potentially chill aggressive policing where officers face instantaneous risk, arguing that liability should turn on the officer’s perceptions at the instant of force [9]; critics countered that temporal narrowing erects “chronological blinders” that prevent courts from seeing how an officer’s antecedent choices—like jumping on a car or drawing a weapon—may have manufactured the risk the officer later cited to justify deadly force [8] [7] [11].
5. How the split compelled the Supreme Court to act and what it found
Faced with this circuit division, the Supreme Court unanimously concluded that the moment‑of‑threat rule is incompatible with the Court’s established Fourth Amendment jurisprudence and reaffirmed that the totality of the circumstances—including relevant prior events—must inform the reasonableness inquiry, vacating and remanding the Fifth Circuit’s decision and calling out the moment rule for artificially narrowing Graham’s fact‑sensitive standard [2] [11] [1] [4].
6. What this meant for lower courts and practitioners prior to the ruling
Until the Supreme Court’s decision, outcomes in excessive‑force suits could turn on geography: plaintiffs in circuits that embraced totality could litigate how pre‑shooting conduct shaped danger, while defendants in moment‑of‑threat circuits often obtained dismissal by isolating a brief instant when perceived risk justified force—an uneven landscape that commentators and some judges urged the Supreme Court to resolve [10] [12] [7].