Fourth Amendment

Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections

The Supreme Court weighs police shootings and unreasonable seizures in Torres v. Madrid.

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The Fourth Amendment right to be free from "unreasonable…seizure" includes the right to be free from unreasonable arrest or detainment. Does it also include the right to be free from what we might call unreasonable attempts or efforts at arrest or detainment? The late Justice Antonin Scalia thought that it did. "The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," Scalia wrote for a unanimous Supreme Court in California v. Hodari D. (1991), qualifies as a seizure for Fourth Amendment purposes.

Earlier this month, however, the Supreme Court heard oral arguments in a new Fourth Amendment that asks whether Scalia might have got it wrong.

In Torres v. Madrid (2019), the U.S. Court of Appeals for the 10th Circuit 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 that court, "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.'"

Torres was sitting in her car in her apartment building's parking lot when it went down. The officers were there to arrest somebody else. They claimed they approached her because she was acting suspiciously. According to Torres, she thought she was about to be carjacked, later testifying that the officers never identified themselves as they crowded her vehicle. Fearing for her safety, she drove away. The officers then shot her twice as she fled. She only learned that it was the police who pulled the trigger when she was arrested a day later at the hospital.

The Supreme Court heard oral arguments in Torres v. Madrid on October 14. "Roxanne Torres was not seized by either [Officer] Janice Madrid or [Officer] Richard Williamson," New Mexico lawyer Mark Standridge told the justices. "At no time did the officers acquire possession, custody, or control over her. Indeed, [Torres] never stopped in response to the police action. As the officers did not seize [Torres], they cannot be held liable to her for excessive force in violation of the Fourth Amendment."

Unsurprisingly, the Court's most hawkish Fourth Amendment advocate, Justice Sonia Sotomayor, did not seem to find that position particularly palatable. "Counsel, there is an element to the Fourth Amendment that all of our cases, including Hodari, recognized by Justice Scalia," she said, "that has to do with the Fourth Amendment's protection of bodily integrity. It is why we call putting a needle in someone's arm a seizure that requires either probable cause or exigent circumstances, et cetera."

And that conception of bodily integrity, Sotomayor continued, includes "the seizure of the person with respect to the touching of that person because even a touch stops you. It may be for a split second, but it impedes your…movement and offends your integrity."

What you are asking the Court to do, Sotomayor told Standridge, is "reject the clear line drawn by Hodari and say that Justice Scalia was wrong about what the common law showed." Sotomayor left little doubt that she was with Scalia on that one.

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  1. I knew she was wise.

    1. Yes, a wise Latina.

      It’s funny how the left acts like any R court appointee means an immediate end to abortion and the imminent imposition of Gilead like dystopia. At the same time the right acts like any D court appointee is going to immediately institute socialism and rubber stamp any expansion of federal scope. Both sides are utterly wrong.

      The confirmation process is silly but it does manage to weed out massive blunders (such as Harriet Myers). Amy Barrett got through because she’s a sensible jurist. If Trump had picked Guiliani (his own Harriet Myers) he could not have been confirmed. No way, no how.

      That doesn’t mean the appointees don’t ahve their own ideological filters with which they few the law, because they do. But it does mean they aren’t angels and demons grabbling with our souls.

      Sotomayor is not only a wise Latina, she has turned out to be a somewhat palatable justice. Not a libertarian, but we have no libertarian justices.

      1. Even a blind pig…

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        2. But she really isn’t a blind pig randomly rooting around. She is consistently pretty good in some areas.

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      2. She got 68 votes. So almost a quarter of republicans gave her the Okay. How many democrats voted yes on ACB? On Kavanaugh?

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      3. And by the way…

        ““All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made,” – Sotomayor

        There is a terrible statement for a judge.

        1. Gorsuch is a better comparison. Still, the vote on him was 54-45.

          1. So 2 democrats?

      4. “Sotomayor is not only a wise Latina, she has turned out to be a somewhat palatable justice”
        Isn’t the preferred term LatinX?

        1. 85% of Latinos and Latinas reject the term LatinX.

          It’s a term created by woke assholes. Really. Look it up.

          1. I thought it was higher than that.

            Also, leave it to woke assholes to come up with a term that not only is unpronounceable in Spanish, but also completely ignores the cultural and linguistic traditions of the people they are white knight-ing for.

            1. George Lopez on TV recently pronounced it Latin-equis, (like Dos Equis beer. Rita Moreno told him ¡no!

            2. To be fair, I didn’t check the statistic. It’s what I was told by one of my Latino acquaintances when we saw it on TV and he blurted out “that shit again?”

      5. She’s the ONLY justice with any criminal jurisprudence experience. 3 whole months worth.

        Sad.

  2. Sotomayor is a godsend. My favorite Supreme.

    1. Your fake Chipper isn’t very good.

    2. I’m more of a Diana Ross fan.

      1. Reflections of the way life used to be.

      2. You just keep me hangin’ on….

    3. Based on one amendment in the BoR? What about the other 9?

      What about her distortion and misapplication of the 14th? Oh, wait…it’s ok to evade the Constitutional limits of power when you like the outcome.

  3. Cops have no business shooting someone fleeing the scene.

    1. this ^^ but it’s not a popular sentiment around here.

        1. the assertion has been met with nine million hypotheticals for when it’s totes okay for cops to shoot people in the back. see below.

          1. “nine million”

            I see three posts.

          2. If you don’t want to look deeper than the surface of a topic, no one is forcing you to.

            1. ffs of course there are situations where police can shoot a fleeing suspect geez i’m not an idiot.

              >>Fearing for her safety, she drove away.

              “while believing I’m being carjacked” is probably not one. walking away @Wendy’s probably another.

              1. Nope. Look up Tennessee v. Garner. You can only shoot a fleeing suspect if they are reasonably believed to pose a serious threat to the safety of the officer or others. Now, in the specific case you’re referencing, the “walking away” was not enough to get the suspect legally shot, but the use of force while fleeing by the suspect might justify it.

      1. They rarely have business doing it, but there are cases where it’s justified.

        If the cops just saw a guy shoot someone, and then he starts fleeing, I don’t really have a problem with them shooting the guy.

        A case local to me a little over a year ago had a 911 call where the victim said he had just been robbed at gunpoint and gave a description of the 2 guys who did it, including which guy had the gun. Cops respond to the area, find 2 guys who match the description. They stop them and ask some questions, then say they’re going to pat them down for weapons. The guy who matched the description of the armed robber takes off running at this point. The cops chase him, and then when he starts reaching into his waistband they shoot him in the back. Once they get to him, they find the gun. All of this is on bodycam, and we have the 911 call the precedes the event.

        Do you have a problem with that shooting? If the guy gets away, he’s likely to continue committing armed robberies. He might even shoot someone if his robberies don’t go according to plan. Do the police not have an obligation to try to prevent that from happening?

        1. Given the way “I can’t breathe!” and “I’m just exercising my free speech rights!” gets abused, I can’t imagine “He was fleeing the scene.” as a valid defense of… anything.

          If police can’t shoot someone fleeing the scene, what can they do? Is the argument really that once someone has fled the scene in any direction and they’re out of physical reach, there’s nothing the police can do? Will you feel better when every arrest looks like the NFL’s greatest hits?

          Cue Chris Rock letting LIl’ Nas go because he’s riding a hoarse horse.

    2. Never? What if, say, they shot a dozen people and then fled?

      1. I think that might be a reasonable situation to attempt a seizure of the person.

      2. That would be a good time to shoot em in the leg.

    3. Depends on the situation. Did they just, or are they in the process of, or are they likely to imminently violate the NAP?

      1. Nope. DIllinger and Don’t look at me!’s stance is that those things don’t matter.

        Murder a dozen people and as long as you walk with your back to the police on your way to murder the next one, there’s nothing they can do about it. “We’d love to have apprehended the guy but, well, his back was turned, and then, when his back wasn’t turned, he was fleeing the scene. So, you see, there was nothing we could do.”

        1. >>is that those things don’t matter

          exaggerated. lighten up.

        2. I’ll even go so far as “if she tried to run them over with her car” they were clear to shoot her as she drove away …

          more casual, less mad.

          1. I would say “if she tried to run them over with her car” they were cleared to shoot her as she was trying to run them over with their car. Absent specific evidence of her posing immediate threat to the public, what justification would there be to shoot her when she no longer posed no threat to them? Here’s a hint, if cops stop behaving in ways that are difficult to distinguish from criminal activity (e.g. surrounding a car in a parking lot without identifying, no-knock raids in the wee hours) lots of outcomes would be better for everyone. I carry a pistol most times I leave the house, and if I ever shoot someone in the back, I assume I’ll be going to prison for a long while. Why is it inconceivable that cops would be held to a similar standard?

            1. You is correct, An.

  4. We need more justices like this.

  5. what on earth is wrong with the 10th? Sotomayor has always been good on 4A it’s nice to have her around for these cases.

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  6. President Harris would flood the court with justices who would not agree. As a former prosecutor and AG she is down with this behavior.

    Oh and Joe Biden is corrupt. But he’ll be in a nursing home in a short time and pardoned by Harris.

    1. Eh, maybe. Most Presidents with, very few exceptions, have been terrible on Fourth Amendment and Civil Liberties issues in general. Barack Obama is a perfect example, someone used the Fourth Amendment, and the rest of the Constitution, as his own personal toilet, but then he appointed Sotomayor. Same thing with Bush, he appointed Roberts, who is terrible, and yet he’s been decent on some Fourth Amendment cases and the First Amendment for that matter.

    2. https://nypost.com/2020/09/03/kamala-harris-rampant-prosecutorial-abuses/

      Kamala Harris is as vile, filthy, cruel, and dishonest as Satan himself. She is a reprobate who has no business holding any kind of office. How dare she of all people even try to question the scruples of Amy Coney Barrett. The ultimate in hypocrisy.

      1. https://www.nytimes.com/2019/01/17/opinion/kamala-harris-criminal-justice.html

        But wait, there’s more. She is not just brazen and power hungry, she is cruel. She deliberately set out to ruin lives of innocent people, which also left the guilty free to roam in California. She is the personification of a bad person.

        But hey, Mike Pence had a fly on his head, so it’s basically the same thing.

        1. If I don’t survive, tell my wife “Hello.”

  7. I do not understand the fact pattern.

    Is it the case that the police shot Torres in her vehicle and then just …. left? They did not arrest her?

    This seems like an insane parsing of details because if they arrested her after shooting her, then I do not see why the argument devolves over whether or not the shots fired constituted a seizure.

    1. Ah, ok.

      Actually read the case outline. Reason’s summary is complete … shit.

      She actually managed to get away from the officers, it seems, after being shot. And, apparently, tried to run one of them over while high on meth.

      1. Actually read the case outline. Reason’s summary is complete … shit.

        Writing so shitty it makes Sasha Baren Cohen look funny.

  8. Before we get too far into the weeds, recall that precedent she’s citing is unanimous.

    I’m not baffled by the idea that if this isn’t a “seizure” that it’s somehow ok to shoot the victim.

    The foundation of the 4th is “The right of the people to be secure in their persons”

    A seizure is just one way to violate it. Surely SHOOTING someone is another.

    1. California v. Hodari D., is not clear as to whether the shooting of a person by an officer is, by virtue of the shot alone, constitutes a “seizure.”

      Having said that, if merely “touching” someone constitute an arrest, as Scalia recounted, then I think shooting someone, even if it does not result in taking custody over the person, should qualify.

      1. My question: Why are we arguing about the definition of “seizure” when the underlying violation is in the security of her person?

        Let’s imagine that we determine that no seizure occurred. Then it’s OK for cops to shoot people? WTF?

        The Bill of Rights says the King’s men can’t read your papers, and they can’t sleep in your house, and they can’t inflict cruel and unusual punishment, but THEY CAN SHOOT YOU?

        Is there some detail that I’m missing? Is this really about some drugs they found in her backpack at the hospital, and the admissibility depends on whether the “seizure” occurred at the time of the shooting or the time of the arrest in the hospital?

        Because if that’s the case, this is the worse journalism ever.

        1. I do not have an answer for you. However, you should read the oral argument transcript. The hypothetical scenarios tossed out by the justices were priceless.

          I think at one point Alito asked whether a sniper picking somebody off at a 1000 yards constitutes a seizure ….

          Entertaining reading, if nothing else.

          1. Where’s her 5th amendment right not to be executed without due process, “seizure” or “no seizure?”

            “Halt, or I’ll shoot!” was always an attempted seizure, wasn’t it?

        2. There are two reasons why SCOTUS is so focused on whether being shot in the back constitutes a seizure:

          1) The 4th amendment says “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated…” The operative phrase there is “against unreasonable searches and seizures.” Unreasonable searches and seizures are the only thing the 4th amendment secures against. There are probably laws (or constitutional provisions) other than the 4th amendment that prohibit cops from shooting people willy-nilly (I assume, but IDK, IANAL). But Torres invoked the 4th amendment, so that’s what the courts are analyzing. Which leads to number 2…

          2) When you file a lawsuit, you have to state your claim. If make a nonsense claim, the judge should rule against you, even if the facts of your case would have supported a more sensible claim. That’s how an adversarial legal system works. In this case, Torres made an excessive force claim. According to the circuit court opinion, “[t]he district court construed Torres’s complaint as asserting the excessive-force claims under the Fourth Amendment, and the court concluded that the officers were entitled to qualified immunity. It reasoned that the officers had not seized Torres at the time of the shooting, and without a seizure, there could be no Fourth Amendment violation.”

  9. This is impossible. She was appointed by Black Stalin. Everything she does must be bad.

    1. So broken.

      1. So original and thoughtful! Let me guess, troll gonna say “broken” again? So cute! I knew it could! Awwww!

        1. Ok that looks pretty broken.

        2. Your response supports my observation.

        3. Agreed. Terribly broken.

          1. And the right thing to do with broken people is to be shitty to them and make fun of them all the time?

    2. It’s funny how in your pathetic rush for a gotcha that you end up defending a shitty jurist.

      1. He’s going to lie and say he wasn’t trying to defend her.

        1. Everyone is a liar! Everyone has bad intentions! Only people who vote for Trump are pure of heart! Let us don our red caps and pray!

          1. And now sarc’s sperging out.

            1. And it’s all because he’s broken.

      2. Please explain how making fun of reactionary conservatards equals defending someone. I’m all ears yo.

        1. Told ya.

          1. You’re so cool! Please explain how mocking conservatards equals defending someone else! You’re exactly like the Obamabots who said all his detractors were racist! No different! So cool and awesome! *swoon* thunk

            1. And sarc’s spergout continues apace.

            2. Hyperbolic strawmen aren’t mockery. It’s just idiocy and proof you don’t actually understand your opponents views. Mockery needs a shred of truth in it to be effective. You are attempting an appeal to mockery, but failing hard at it. Probably because you simply aren’t funny.

          2. He’s nothing if not predictably boring.

        2. Except that was a fallacious misrepresentation of conservatives.

    3. Reason has always been fond of her 4th amendment stance.

      Given that she is citing a unanimous ruling, they’re just fanboying on this one.

      1. Shorter Reason:
        Sotomayor is good on one amendment of the BoR, and one out of ten ain’t bad!

    4. It’s not who appointed her that makes her bad, it’s how she approach the law.

    5. Appointed to the federal bench by Bush 41

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  11. I was skeptical when she was chosen. Something about her thinking that a person of her gender, cultural experience would be good for the court. Upholding 4th A rights takes precedence over that. She has been a strong advocate for the 4th.

    1. I think it’s more accurate to say that she has some sort of grudge against cops and doesn’t trust them.

      This very personal experience results in her voting the preferred way on the 4th amendment.

      But it’s just a coincidence.

      1. I’ll take it!

        And by the way, not trusting cops is a pretty libertarian position, don’t you think?

    2. Sotomayor does not believe in liberty. She hates police for a very different reason.

      1. Bingo. Celebrate the result, not the reason.

        1. What’s there to celebrate? Occasional victories that are consistent with liberty do not necessarily advance the cause of liberty.

          Hypothetically, let’s say that SCOTUS decided every case consistent with libertarian principles, but they only took cases involving billionaires; do you think that would result in justice or a libertarian society? Likewise, hypothetically, let’s say that SCOTUS decided every case consistent with libertarian principles, but they took only cases involving poor minorities; do you think that would result in justice or a libertarian society? Neither would, of course.

          The selectivity with which Sotomayor applies the Constitution is even more selective and biased than that.

      2. She hates police for a very different reason.

        What brings you to that conclusion?

    3. Upholding 4th A rights takes precedence over that. She has been a strong advocate for the 4th.

      She upholds the 4A when it serves her political and ideological agenda and fits her race and grievance based world view; she won’t uphold the Constitution when the rights of people she considers privileged or insufficiently progressive are violated.

  12. The Supreme Court was nowise unanimous in California v. Hodari D. (1991). Scalia, joined by Rehnquist, White, Blackmun, O’Connor, Kennedy, and Souter, comprised the majority. Stevens, joined by Marshall, dissented.

    1. oops

      1. sit in the corner and think about what you’ve done.

  13. Root loves him some Faustian bargains.

  14. I hadn’t read articles here covering specific cases in a while, so I forgot to check the case itself. Thank you Geiger for reminding me about why everyone should always do this. You guys (the writers) have an awful habit of outright omitting context in these cases.

    The officers went to this location to serve a valid warrant. It is reasonable to expect that someone dropping off passengers at a suspected drug den is also a druggie who could be involved. They approached her vehicle and properly identified themselves as officers using multiple methods (both verbal + badges visible). It was night time, so I’m willing to accept that Torres thought it was a carjacking, but here’s what concerns me; why would she suspect that? Honestly, it is not normal to expect that. In her case, it is; she’s a meth addict trafficking a drug den. That alone, I say whatever happens to her is her own damn fault. You can’t just say “I didn’t think they were officers” and have cart blanche. That’s asinine and impractical.

    She freaked out because she’s a methhead and drove her car into the officers and tried to run them over. They had every justification at that point to defend themselves with lethal force, which is why they shot. You cannot possibly believe that this was unreasonable, never mind that officers defending themselves successfully somehow constitutes a seizure. Show me the part of 4A that tells officers they have to die in the line of duty and refuse to use deadly force no matter the circumstances.

    1. Furthermore, does Torres even have a leg to stand on with her carjacking claim? She was committing a crime by driving under the influence and the purpose of her going to the drug den was to buy more drugs. If you’re robbing a bank, do you get to shoot the officers in self defense? I’m pretty sure the answer is no, so why would you get to ram your vehicle at the officers while you’re drug trafficking and DUI-ing at the same time? This whole case makes zero sense and I have no idea how it ever got to appeals, never mind SCOTUS.

      1. Driving under the influence should not be a crime, unless it is reckless or results in damage or injury. Then the crime would be reckless operation of a vehicle. Or assault. Or endangered.

        DUI should not be a crime. Every day, people go to work on caffeine, asthma puffers, nicotine, heart medicine, penis pills, etc. Just because you take something, should not be punished.

        DUI is just puritanical thinking. It’s stupid.

    2. I don’t know. I was arrested for drugs some years back. The store we met at was under surveillance because of drug activity. The undercover observed my friend going in and out of the bathroom, waiting for the dealer. The cops thought it was suspicious. They thought it reasonable to suspect a drug deal could be going down. After the purchase, we left, were pulled over, car searched, drugs found, arrested, charges filed.

      My lawyer argued that looking suspicious wasn’t a valid justification for them to pull us over and start sniffing around and also because the cops never saw a transaction or drugs being handed over. The prosecutor agreed the stop and subsequent search was illegal. Evidence was suppressed. The judge dismissed the charges.

      1. WOW! Where was this? When I was arrested for weed in my youth the cop did not have my permission to search my person. He just started going through my pockets and found my little dugout of shit weed(it was back when that’s what you could get) in the inside pocket of my jacket. I argued that he violated the 4th amendment. Didn’t matter one bit. Judge said guilty and that was that. fytw

  15. Her inclination to uphold the 4th is the reason she is only the second worst jurist on the court.

  16. “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.'”

    Um…thats bullshit. What matters is intent, not a successfull outcome. What else can the goal of shooting at a fleeing person be, other than to attempt to stop (as in sieze) them?

  17. I came to Reason.com because I thought I was a libertarian.

    Reason.com is full of people who prefer BLM-lovers to Trump and love Sotomayor.

    Sotomayor ONLY supports the 4th right now because her political Soldiers are currently being rightfully arrested and she wants them free to commit more crimes.
    Reason.com seems to attract a lot of Bill Mahre-type “libertarians” who think “libertarian” means THEY have the right to do as THEY please and to hell with the rest of us! And who cares if jack-booted fascists like Antifa and BLM come into power!

    1. Stuck around for a few years. The writers are lefty libertarians. The commenters are conservative libertarians. You’ll see a variety of opinions.

    2. Then why did she support the 4th amendment 4 years ago? This isn’t a new position.

  18. Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections

    Sotomayor cares primarily about bringing social justice to minorities; she applies the Constitution liberally when it serves that purpose, and otherwise ignores it. When the victim is a wealthy non-Hispanic white male and the case involves seizure of this property, she won’t give a f*ck about the 4A and let the government get away with murder.

    Sotomayor is a political activist and a latent racist; justices like her have destroyed the legitimacy of SCOTUS.

    1. This.

      Just because she did the right thing here does not mean she has a moral code aligned with the constitution.

    2. Regarding the above comments on Justice Sotomayor, she was appointed by who?

  19. Lots of luck. After 9/11 the intentionally misnamed Patriot Act was passed with Republican control of government. A decade later it was democrats controlling all 3 branches of government and they renewed it in it’s entirety.
    Too many Americans take such freedoms for granted.

    The price of liberty is eternal vigilance and We the People clearly are not up to the challenge.

    1. The price of liberty is eternal vigilance and We the People clearly are not up to the challenge. So states tlapp in the above post. Sadly, I’m inclined to agree with his/her conclusion.

  20. On the 4th, Sotomayer has indeed found her acorn.

    On that basis alone, she ranks above Kagan & Bryer as a defender of the PEOPLE and not the state…

  21. Seems as if the officers justification for the use of potentially deadly force here is conspicuous by it’s absence. That said, one wonders as to the justice’s thinking on The Second Amendment, or has that been previously clarified as being not particularly supportive, or worse.

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