Fourth Amendment

The Supreme Court Tackles Police Shootings, Excessive Force, and the Fourth Amendment

What’s at stake in Torres v. Madrid

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The U.S. Supreme Court has long recognized that the Fourth Amendment right to be free from "unreasonable…seizure" includes the right to be free from unreasonable "seizure of the person," meaning detainment or arrest. What is more, as the Court held in California v. Hodari D. (1991), "the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," qualifies as a seizure for Fourth Amendment purposes.

The U.S. Court of Appeals for the 10th Circuit, however, apparently never got the memo. In Torres v. Madrid (2019), that court held that no seizure occurred when officers with the New Mexico State Police shot Roxanne Torres twice in the back, because their bullets did not actually stop her from getting away. According to the 10th Circuit, "an officer's intentional shooting of a suspect does not effect a seizure unless the 'gunshot…terminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him.'"

It gets worse. The police shot Torres while she was in her car in the parking lot of her apartment building. The officers were there to arrest somebody else but claimed that they saw Torres acting in a suspicious manner. Torres thought she was being carjacked, later testifying that the officers, who were wearing tactical vests, never identified themselves when they approached her. What she saw were threatening figures standing at her car windows. So she drove away and was shot twice while fleeing for her life. Torres only learned that she had been shot by the cops when she was arrested a day later at the hospital. The excessive force complaint that Torres filed against those officers was killed off by the 10th Circuit's ruling.

The U.S. Supreme Court is scheduled to hear oral arguments in Torres's case on March 30. She deserves to prevail. There is no question that the officers engaged in the "application of physical force…whether or not it succeeded in subduing the arrestee." As Torres and her lawyers point out in their brief, when the officers "shot at Ms. Torres with the intent to stop her from leaving and two of the bullets struck her body, she was in that moment seized within the meaning of the Fourth Amendment, regardless of what happened next."

Precisely. The 10th Circuit's decision should be overruled.

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  1. This is the 21st Century. Exercising common sense–like fleeing unidentified armed men–is no longer allowed.

    1. The lack of presumption of innocence is what we should fear, the fourth amendment holds this to be self evident and seems in most cases to be forgotten.

  2. “She drove away and was shot twice while fleeing for her life.

    No warrant for her arrest, not even an articulable suspicion of a specific crime being committed, no brandishing of a weapon, and no evidence of her being a threat to life or property. Yet somehow fleeing for her life from murderous thugs is in itself legal cause for murderous thugs to try to murder her. Let’s overturn *that* ruling and then we wouldn’t have to wrangle with the question of if bullets entering your body is or isn’t a seizure.

    1. All she did was drive away. And according to the 10th Circuit shooting her for that was not unreasonable force. Is there any circumstances where the 10th Circuit doesn’t think the cops are reasonable in shooting someone?

      1. Well, she did more than just drive away. She was tripping out on meth, crashed into another vehicle, and then exited her vehicle, then stole another vehicle and drove it 75 miles away, giving a false name to identify herself. Also, she claims she didn’t know they were police officers, but she demonstrated awareness that she had an outstanding arrest warrant, so maybe she was slightly aware that these two were not carjackers.

        I’m not saying you should just shoot at anyone who is tripping out and acting irrationally. I’m just saying that the victim here is not pure as the driven snow.

        1. She stole a vehicle after she was shot? What the hell? If what you are saying is true, and I have no reason to think it isn’t, this article is being a bit less than truthful to say the least.

          Why does reason seem to have such a hard time telling the truth these days?

          1. Why does any of that matter? It all happened after they shot her. Were they able to see the future?

            Completely immaterial.

            1. Her behavior is relevant insofar as it can be illuminating to the truth of her statement: “I thought they were carjackers.”

              1. Again, how is that material? How does that imbue the cops with any extra foresight that they could shoot her in the back while running away from an unconstitutional stop?

              2. It’s irrelevant to the appeals court because the court must view the facts in a light most favorable to the appellant. . They must accept her testimony as true when deciding the matters of law involved with the case. They are not triers of fact; they are arbiters of the law. Regardless of the above, the cops should not have shot her.

                1. That’s not how appeal works at all.

                  In fact, it’s almost the exact opposite. Depending on the standard based on the briefs to the court, the appeals court will assume that the trial court got it right, and will only overturn it there’s a gross misapplication of justice.

                  It’ll be the same in SCOTUS, only generally there it’s about either 1) a legal question that has not been answered, or 2) when the lower circuit court really fucked it up.

                  But under no circumstances will they take the appellant’s word at face value and assume the appellant is right on the law. It’s always up to the appellant to demonstrate (according to the standard being used by the court) that the lower court got it wrong.

                  1. Summary judgment in the lower court on whether the officers qualified immunity meant that Torres’s civil suit should have been dismissed. The trial court felt it should, so the 10th reviewed that decision de novo.

                    It also stated that,while the non-movant for SJ plaintiff’s versions of the facts normally control, if no reasonable jury would believe those facts, because they’re contradicted by other facts, the court doesn’t need to either.

        2. Two bullets struck Torres. She continued forward, however, driving over a curb, through some landscaping, and onto a street. After colliding with another vehicle, she stopped in a parking lot, exited the Cruiser, laid down on the ground, and attempted to “surrender” to the “carjackers” (who she believed might be in pursuit). Id. at 208.

          Torres “was [still] tripping out bad.” Id. She asked a bystander to call police, but she did not want to wait around because she had an outstanding arrest warrant. So, she stole a Kia Soul that was left running while its driver loaded material into the trunk. Torres drove approximately 75 miles to Grants, New Mexico, and went to a hospital, where she identified herself as “Johannarae C. Olguin.” Id. at 255. She was airlifted to a hospital in Albuquerque, properly identified, and arrested by police on July 16, 2014. She ultimately pled no contest to three crimes: (1) aggravated fleeing from a law-enforcement officer (Officer Williamson); (2) assault upon a police officer (Officer Madrid); and (3) unlawfully taking a motor vehicle.

          Those are the facts as told by the decision. Root is a lying sack of shit. Why do this? Why not just tell the full truth?

          1. Nobody wants facts, they want narratives.

          2. It confuses the spin Root wants to put on the story and makes it a bit more grey instead of black and white.

            1. The underlying facts almost certainly hurt her case. She knew she had an outstanding arrest warrant-that was why she claimed she didn’t wait for the cops after crashing her car, and then used a false name to check herself into a hospital far away. She also pleaded no contest on the assault of Officer Madrid.

              Could it be that she actually didn’t care if she ran over the officer and was going to run her down in order to avoid being arrested? That said, opening fire surely should be a distant second option after “Getting the fuck out of the way of the vehicle.”

              1. “That said, opening fire surely should be a distant second option after “Getting the fuck out of the way of the vehicle.”

                It never is, for some reason. I was stunned the first time I heard of cops jumping into the path of a moving car, then blasting it because the driver wouldn’t stop.

                Sure would have made The Dukes Of Hazzard a much shorter series.

                I felt sympathy for Ms. Torres until hearing ‘the rest of the story’s. It’s too bad—she may even have been wronged—but getting mislead like that by an article is a tough rhetorical stance to look past.

                1. Hypothetical: You dodge the vehicle. You don’t open fire simply because they gunned the engine. You note the license plate, you run the registration and learn who the vehicle’s owner is. You later then confront and arrest the owner for reckless driving and attempted assault (if warranted).

                  What’s the downside? It may require some more work done later in case the vehicle’s owner claims “I wasn’t driving, someone stole my vehicle but I have since recovered it.” But there’s far less chance of accidentally shooting the baby you didn’t see in the backseat if you take this approach.

                  1. Because cops are bored most of the time and can’t wait to finally discharge their service weapon in the line of duty.

                    1. Or because the fight or flight response is nearly instantaneous and happens without actual conscious thought. That being said, cops are trained to fight (which is problematic to say the least). Training does impact the fight or flight response (this is why the military constantly practices even mundane tasks such as changing a magazine in a combat like situation.

          3. Another question: is it common for car jackers to routinely wear tactical bullet resistant clothing now? (I am really curious and would like to know). It seems odd that her thought when seeing people in tactical gear to assume they are car jackers. My first thought is that they are police, probably a warrant enforcement unit. If the case was exactly as Root described, even with the questionable assertion she thought they were car jackers, I would agree this case is definitely one of police using excessive force. With the further information you have provided it becomes much less questionable.

            1. Edit: much more questionable

            2. On my locality we have had home invaders in tactical gear impersonating bounty hunters and cops for purposes of robbing the residents of the home.

          4. Except that all of this occurred after she was shot and does not establish that she was a threat to the police officers before she was shot.

            Still, a full picture of the incident would have been appreciated.

          5. The only spin is yours, thinking that actions taking place later were justifications for the cops shooting her earlier.

            1. It certainly brings into question how truthful she is when she claims she thought they were car jackers.

              1. No, it doesn’t.

                That she might have had motive to flee from cops says absolutely nothing about whether or not she recognized the men who shot her that night as cops or not.

                1. If the only evidence we have for her lack of recognition is her own testimony, it seems fair to question her credibility, especially when her testimony can be self-serving. It would be helpful to have other evidence to back up her claim that the officers were not easily identified.

                  1. Why would it matter? I can’t see the question of whether it was excessive force for the police to shoot her turning on whether or not she understood they were police when she started driving away.

                    1. And I think it’s excessive. The argument will be made, however, that she did know they were police and she used her vehicle as a weapon to escape and thwart arrest, and that using their firearms was a legitimate defense and not excessive force.

                      I think they should have gotten out of the way, taken down the license plates, and arrested her later. But the fact that she committed vehicular assault and pleaded no contest to that charge seems to weigh against her excessive-force lawsuit. The verdict is extremely odd because they don’t attempt to determine whether the officers’ use of force was reasonable, they ducked that whole question by claiming that there was no seizure happening at all. It’s an insane verdict, but the facts still may not favor the plaintiff.

                    2. ” The argument will be made, however, that she did know they were police and she used her vehicle as a weapon to escape and thwart arrest, and that using their firearms was a legitimate defense and not excessive force.”

                      What I’m saying is that the validity of the police’s argument does not depend on whether she knew they were the police. The justification for their actions is based on their subjective experience, not hers. Even if she truly believed she was fleeing car jackers, if she was truly endangering an officer it’s almost certain that the other officer was justified in shooting her.

          6. Why? Because its irrelevant to the case at hand. There is no need to look at any part of your post after “[t]wo bullets struck Torres.”

            1. And whether she thought they were carjackers or police is irrelevant. The issue is this: Did the police striking Torres twice with bullets constitute a seizure under the Fourth Amendment?

          7. Probably because those are the facts that happened AFTER she was shot. They matter, but not as a means to decide whether the shooting itself was justified or not, and it certainly has no bearing on the point of law being contested in the case (whether being shot counts as a search/unlawful detainment even though she ultimately did get away).

            1. I see two parts to the question here: Did the plaintiff, either willfully or with reckless disregard, attempt to injure the officers with her vehicle? If she didn’t, then firing at her is excessive use of force.

              If she did, however, the question is whether it’s excessive for an officer to defend themselves with their firearm against a person in a vehicle. That’s an issue that varies much more on the specific case, as a vehicle CAN be a deadly weapon, but sometimes the threat is minimal and the suspect is merely attempting to flee.

              1. There’s only one part to the question. This Supreme Court case isn’t really about the facts of this particular case. According to Scotusblog, this is the question the Supreme Court is answering:

                Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

          8. If you lie then you are subjected to execution? And John will call you a “sack of shit”.
            “Tripping” on methamphetamine? Another name for that drug is Adderall.
            Fleeing from anyone is now a death sentence especially police who were not searching for her? She ended up hospitalized- then she was in fact seized as soon as the bullets hit her and without proper warrant James Madison said that is in fact tyranny. Felonious act to deprive anyone of their Rights unless a VALID warrant or cause/suspicion (police can justify any killing by their own).
            So John, you sack of shit, laugh at someone losing Rights but it will be you or your children someday soon. Drug laws are like you, racist from day one and bigoted. Tell the truth to cops if you want and it will be used against you. Interpret the Law of the Land anyway you want but a sack of shit is still a sack of shit. Take your black robes off, only tyrants dress in such flamboyant outfits.

  3. Good to know that the police are still protecting & serving the shit out of us.

    1. “… still protecting & serving the life out of us.”

  4. If this case was so black and white, how did it get to SCOTUS?

    1. Because the 10th Circuit Court of Appeals ruled on a matter of law that directly and unambiguously contradicts the Supreme Court’s Fourth Amendment holding that is analogous to the facts at hand in the Torrez case. They probably did this because the facts of the case following the bullets striking Torres were what they were, but that makes the 10th Circuit no less wrong on this matter of law.

  5. Many assholes in this case, however, most of it is irrelevant to the cops shooting her. What she did after they shot her, doesn’t mitigate them shooting her.

    1. It does raise some credible questions about her assertion she was fleeing because she suspected that people in tactical gear were car jackers and she didn’t realize they were cops.

      1. Ultimately, the bad facts probably kill this case. Much of the plaintiff’s case hinges upon the plaintiff’s own testimony, but her behavior impugns her credibility. She went to some lengths to avoid police because she was aware she had an outstanding arrest warrant, so how can we trust her claim that she believed the officers were carjackers?

        If there were bodycam footage, it could be enlightening in this case. It would also be helpful to see these tactical vests just to see how clearly they marked the officers as police. There’s a point where being strung out on drugs too much to recognize the plainly obvious is your own fault instead of the other party’s.

        1. I can see it both ways. On one hand, it’s a dark parking lot and they saw two guys walking towards them, probably with guns. Raid jackets/vests can have surprisingly small ‘POLICE’ emblems on them, assuming the velcro covers weren’t still over the emblems.

          On the other hand, there were someone with Ms. Torres standing outside the car. That someone saw enough about the oncoming officers to bail towards the apartment the cops were there to raid. One officer was right next to the driver’s door, rapping on her window, and the other at her front corner.

          One thing I haven’t read yet, none of the officers had flashlights? Or a cop car nearby with lights on? Or other officers nearby? Or were they going to raid an apartment with only two cops?

          Body cameras might have made this easier to grasp. I still wonder what was so bad about the case that the district court pulled this ‘she was never seized’ out of their ass, instead of treating this as a garden variety self defense case?

          1. Well, a man and a woman, not “two guys” in dark vests. That does make a slight difference in my perception, but perhaps that’s my own bias showing.

          2. Also, do we know it was dark? I read “early in the morning,” and I pictured, like, dawn or just past it. But they could have meant 4 am, I suppose.

        2. I thought this was settled in 1985.

          “Tennessee v. Garner, 471 U.S. 1 (1985), is a civil case in which the Supreme Court of the United States held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger.”

          Shooting to detain a fleeing suspect violates Tennessee state law and just is not done any more by our officers.

          1. Were the officers here firing to stop a fleeing suspect? The brief makes it sound as if they’re using the “defending myself against an attacking vehicle” argument.

        3. Perhaps so, but we need to remember that the appeals court nor SCOTUS have any real standing to determine credibility. That’s the job of the trier of fact (ie the jury or trial court judge), and all of their case law bears that out.

          The appeals process is to ensure that the law was applied correctly, and it appears that here it was not.

      2. It’s irrelevant to the issue before the SC: Did the police striking Torres twice with bullets constitute a seizure under the Fourth Amendment. They’re not trying the entire case, just deciding on this one issue.

    2. “What she did after they shot her, doesn’t mitigate them shooting her.”

      Agreed. It does though give doubt to the reader that the situation was as described by Root. “I was being carjacked!” No, you saw cops walking near your tweaking ass, didn’t want to go back to jail, freaked out and punched the accelerator near one of them.

      Or it did go down closer to the infamous Culpepper, VA shooting, as Root is implying with this article. I’m sure the statement of facts in the 10th’s opinion, and both sets of briefs for this Supreme Court case, will be clearer than this.

      1. “Tweaking” is similar to what? Being an idiot like you? If stupidity is a death sentence you are on death row.

  6. Wow, this article is straight up fake news. Lies by omission. Reason is quite literally run by giant sacks of shit calling themselves journalists.

    Y’all are a stain on journalism.

    1. At least they had the decency to link to the court ruling, which contained the pertinent facts they omitted. It made the task of discerning their spin much easier.

      1. Its certainly better than linking to some other activist’s NYT article or something, I’ll give them that.

        I’d prefer if journalists would do their jobs rather than expecting that their readers do it for them (or worse, hoping that their readers will not look into it further).

    2. The only omissions were things that happened after the cops made their felonious decision to shoot her in the back.

      1. They go towards state of mind and credibility of the plaintiffs claims.

        1. Which are not items considered by the appeals court.

      2. Also, consider that leaving out the information makes people more sympathetic to the cops, because when you hide this information people begin to wonder what else you are hiding and begin to question your entire credibility.

        1. It also taints the person’s claims to victimhood. “I thought these guys were carjacking me, so I carjacked someone else so they couldn’t get me.”

          1. She drove the other car to a hospital because she had two bullets in her back. You expect a person with two bullets in the back to rational? They shot her in the back for driving away from them.

            1. Nobody ever said she took bullets in the back. Given where they claimed they were when they fired, I would expect front or lateral entry wounds.

              1. Not much of a comment for A Thinking Mind. Assumed conjectures of maybe from A Thinking Mind, WOW! Lucky us…

    3. Nothing that happened after Torres was shot is relevant to the case at hand. Whether Torres knew they were police or not is irrelevant to the matter the SC is deciding.

  7. Good adage for life, but especially for all the blatant lies and spin on Reason lately; if it sounds too bad to be true, it probably is.

  8. The reasoning of the District Court and 10th are garbage on the seizure question. From the 10th’s opinion, the officer admitted going to Torres’s drivers side window:

    “Officer Richard Williamson approached the Cruiser’s closed driver-side window and told Torres several times, “Show me your hands,” as he perceived Torres was making “furtive movements”

    How in the blue fuck does a cop going to someone’s window and ordering them to show their hands not constitute a seizure under the 4th? I don’t think the silly bitch deserves anything besides a jail cell, but this is just horrible legal reasoning.

    1. Though this does raise a legitimate question for me, beyond the specific issue being argued. The officers are going to execute an arrest warrant. They claimed they wanted to identify the individuals standing outside to ensure they were not the woman they came for.

      So my question is, did they have probable cause to detain Torres in order to verify her identity? Moreover, if the were after someone connected “to organized crime,” (I suspect the organization is a meth cooker and a couple of dealers) is there sufficient probable cause for them to identify individuals who just happen to be in the area?

    2. “How in the blue fuck does a cop going to someone’s window and ordering them to show their hands not constitute a seizure under the 4th?”

      It’s probably not, unless you submit. There are basically two types of seizures: (1) show of authority; and (2) application of physical force. For (1), the seizure doesn’t happen until the subject surrenders to the show of authority (and even then the police often will argue that you weren’t really seized because you could have ignored them and left). For (2), on the other hand, the seizure generally happens once physical force is applied, even if the subject resists and gets away. So because she fled in response to the show of authority (putting aside her claim that she did not know they were police), she was not seized at that time.

      1. That is a much more clear argument then Roots incomplete argument. Leaving out key pieces of the case, as it was presented raises questions about Roots objectivity and if he is pushing a narrative and omitting key evidence to further his viewpoint.

        1. Orin Kerr has an interesting article on Volokh about this case (it’s from a couple of days ago, so it’s not still on the front page). He points out that when the Fourth Amendment was adopted, there weren’t really professional police forces and the person responsible for arresting someone could be charged with the crime of escape if they failed to complete the arrest once started and asks whether that makes a difference.

          1. That’s interesting. I’ll have to look at that, and thank you for bringing it up.

            I was cynically thinking that the doctrine that a person wasn’t seized under the 4th at a time when any reasonable person would feel they weren’t free to leave, was a byproduct of a case where a ‘totally-not-seized’ person wasn’t Mirandized or the procedure for arrest was flawed in some way. This then was a court attempting to backdoor evidence that should have been excluded because the person’s Constitutional rights would have been violated if they were ‘seized’, but the Court pretended they weren’t.

            Thanks for the Kerr cite though.

    3. OK. Does the opinion say he identified as police before demanding “Show me your hands”?

    4. “Torres” (hispanic?) “Silly bitch” (female). Yup shoot her and toss her in prison said the racist, misogynist eye-witness. Oh, you were not there. Add “liar” to your profile.

  9. Albuquerque PD has been running wild for years, shooting people at will and confiscating money and vehicles in spite of a state law that prohibits it absent a criminal conviction. The even released a video showing them shooting and killing a derelict, mentally ill man who they knew well through prior contact. He was probably 40 feet away brandishing a table knife. He died in a hail of bullets and after he fell, the supervising officer screamed “bean bag, bean bag”, in realization that the bullets were unnecessary to bring him under control. The courts in New Mexico found them Not Guilty and they walked free.

    It’s all well and good to claim you’re in the right when the police confront you, but if you die you’re still dead, even though your widow might win a lawsuit.

    1. Yeah, ABQ PD or Bernalillo County SD definitely do not get the benefit of the doubt here. Heard all kinds of horror stories about the shady crap they’ve both pulled. And then there was the Deming, we’re going to give you a colonoscopy to find the dope we know you’ve got stuffed up there, case Reason mentioned a while back.

  10. Her actions after the fact do cast down on her claim that she did not realise they were cops. But consider the (IMHO) very real possibility, that she had no clue what was going on or who they were when they first startled her. She gunned the engine and took off. After being shot, crashing the car bewildered etc. Every possibility ran through her mind, carjackers? Cops? (well it’s true I do have an outstanding warrant) etc. She initially told someone to call 911, then thought better of it when relaising they might be cops. Saw an opportunity with a car iddling next to her and just grabbed it etc. Taking actions that showed she now considered the possibility they were cops serving a warrant a very real possibility. But it still leaves her initial actions as a result of thinking she was being hijacked, a very real possibility.

  11. In this day and age, there should always be body camera video.

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  13. The point is they shot her and by all reasoning had to know that gunshots are often fatal when aimed at people. Her crime? I am still unclear what it was and did it qualify as a death sentence? Why take this to a judge at all, the judges were pulling the trigger and they do not care what you fucking think.

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  16. I’d TOTALLY nail that teacher.

    SHE’S the criminal…??? That boy is LUCKY!

  17. Attempted seizure, what is that? They don’t give Nobel Prizes for Attempted Chemistry.

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