Fourth Amendment

Shooting a Fleeing Suspect Who Escapes Still Triggers the Fourth Amendment, Says SCOTUS

"The application of physical force to the body with the intent to restrain is a seizure, even if the person does not submit and is not subdued."

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Fourth Amendment advocates won big today at the U.S. Supreme Court, which held 5–3 that when the police shoot a fleeing suspect, it still counts as a Fourth Amendment seizure even if the bullets don't stop the suspect. "The application of physical force to the body with the intent to restrain is a seizure," declared Chief Justice John Roberts, "even if the person does not submit and is not subdued."

The case of Torres v. Madrid began in the early morning hours of July 15, 2014, with Roxanne Torres sitting inside her car in her apartment building's parking lot while several New Mexico State Police officers were parked nearby in an unmarked car. The officers, who were wearing dark tactical vests with police markings, were there to arrest somebody else. They claimed they only approached Torres because they thought she was acting suspiciously. According to Torres, she just saw individuals with guns crowding her car. Thinking she was about to be carjacked, Torres hit the gas. The officers shot her twice as she fled. Torres only learned that it was the police who shot her when she was arrested a day later at the hospital.

Torres sued, arguing that the officers' use of excessive force violated the Fourth Amendment's prohibition against unreasonable seizure. The officers countered by claiming that no seizure occurred since Torres was not actually stopped during the encounter.

"The question in this case," wrote Chief Justice John Roberts, who was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, "is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The answer is yes: The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person."

Notably, Justice Neil Gorsuch, who Fourth Amendment advocates often see as an ally, dissented in favor of the officers. In Gorsuch's view, which was joined by Justices Clarence Thomas and Samuel Alito (Justice Amy Coney Barrett took no part in the case), "'seizing' something doesn't mean touching it; it means taking possession."

The chief justice rejected that view, pointing to a 1991 decision written by the late Justice Antonin Scalia. In California v. Hodari D., Scalia said that "the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," qualified as a seizure for Fourth Amendment purposes.

"At the end of the day," Roberts wrote in Torres v. Madrid, "we simply agree with the analysis of the common law of arrest and its relation to the Fourth Amendment set forth thirty years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today."

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    1. But were you shot in the back while fleeing?

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  2. ‘seizing’ something doesn’t mean touching it; it means taking possession.”

    That’s ridiculous! It’s like saying “shall not be infringed” means you can’t infringe!

    1. So if the cops fill you full of lead and leave your bullet riddled corpse on the pavement that’s okay because they didn’t “seize” your body? The 4th amendment exists to stop the government from doing a thing because it is the doing of the thing which is objectionable. Allowing them to “try” to do the thing and giving them a blank check to “fail” is setting up one hell of a moral hazard. If it’s not okay to arrest someone then it’s not okay to try to arrest them.

      1. In Gorsuch’s defense, he did not say that the shooting was okay. In fact, he explicitly said that the victim could still sue the police under multiple other legal theories. He merely said that this argument (which was based solely on the 4th Amendment definition of seizure) didn’t fly.

        I prefer the majority’s decision but I can see the dissent’s point.

        1. Exactly this. The dissent definitely isn’t saying that what the officers did was okay.

          Still, the dissent seems to maintain that damaging or destroying something is different from “taking possession” of it, which seems like a dangerous stance to take. If cops destroy your property (car, house, whatever) without warrant or probable cause, isn’t that a 4A violation? How is that different from destroying parts of your body, which is also one of your possessions? I don’t see how the dissent reached their conclusion…

          1. The 4th Amendment doesn’t just cover your effects:

            “The right of the people to be secure in their persons, houses, papers, and effects…”

            Pretty sure “their persons” covers bodily damage or attempted damage.

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          2. I guess if a cop breaks into your house without a warrant and starts searching it and taking stuff, but you are able to take the stuff back and kick him out, there’s nothing to see here. The 4th was not infringed.

  3. if not shot by police, not arrested at hospital.

  4. Wasn’t this settled in Tennessee v Gardener? I guess not on the question of success.

    Using the 4th here is still a perverse standard. It derives from the fact that, despite what the 9th says, you have to sue for deprivation of rights via the enumerated rights and not simply for harm. And since no DA has the guys to properly prosecute wayward police for attempted murder in spite of their flimsy self-defense claims, you have to sue for something.

    Personally, I think if we have to work with the absurd fiction that police are exempt from the actual law unless a DA says otherwise or direct harm standards, a better standard would be the due process clause, where the right to lide and liberty should be interpreted to include harms to your person and improper police proceedings can be declared outside due process.

  5. Seems pretty stupid to shoot at someone who isn’t an immediate threat. But, I’m not a judge.

    1. You have to shoot them (or someone/something near them) to make sure they don’t become threats.

      1. Everyone has the potential to become a threat at some indefinite point in the future, so we should just get it over with and kill everyone now. Then there will be no crime and no need for police.

        1. The crime is life. The sentence is death

    2. Shooting at someone who’s not a threat to you and is running away, should be an attempted murder charge.

    3. Duh! You have to shoot them to find out if they are going to be a threat. It’s the only way to go home safe.

    4. driving a car surrounded by law enforcement who are there at the car to interact with the driver of said car is an immediate threat

  6. Interesting.

    If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms. Torres
    should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy.
    The majority seems to give voice to this sentiment when it
    disparages the traditional possession rule as “artificial” and
    promotes its alternative as more sensitive to “personal security” and “new” policing realities. It takes pains to explain, too, that its new rule will provide greater protection for personal “privacy” interests, which we’re told make up the “essence” of the Fourth Amendment.

    But tasked only with applying the Constitution’s terms,
    we have no authority to posit penumbras of “privacy” and
    “personal security” and devise whatever rules we think
    might best serve the Amendment’s “essence.” The Fourth
    Amendment allows this Court to protect against specific
    governmental actions—unreasonable searches and seizures
    of persons, houses, papers, and effects—and that is the
    limit of our license.

    At first I thought the majority had it right, but the dissent does raise an interesting point, above. Want of a remedy should not be a reason to ignore the meaning the text of the Constitution, especially when other remedies are available. Being a strict textualist, I am always wary of letting our “sense of justice” warp our understanding of words. That is how you end up with a “living” Constitution — and, inevitably, no Constitution at all.

    1. No warping needed:

      “The right of the people to be secure in their persons, houses, papers, and effects…”

      1. ….. against unreasonable searches and seizures …

        1. Exactly. There are all sorts of laws that seem more fitting to use to charge this excessive use of force. I just don’t see how shooting at someone is the same as unlawful seizure. I agree that someone should be safe, but the second half of the 4th amendment defines the circumstances. This is neither a search nor seizure. Hell, tag the cops with attempted murder if you want. This isn’t a Constitutional case regardless of how much some want to twist it. Why does Root pick some of the worst examples to build up his cases from?

          1. An arrest is a seizure. An attempted arrest is an attempted seizure.

    2. Thanks for the quote.
      “Maybe it is an impulse that individuals like Ms. Torres
      should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy.”
      The dissenters do indeed have a point and maybe a better one. We can only hope they get the right case next time.

    3. “ut tasked only with applying the Constitution’s terms,
      we have no authority to posit penumbras of “privacy” a”

      Well, there goes Roe v Wade.

      In addition to all unenumerated rights.

  7. I get where the majority is coming from… but I am with the dissenters on this one.

    The police did not attempt to seize her. They attempted to neutralize her so that they could then seize her.

    In the attempt to neutralize her they used deadly force meaning they tried to kill her specifically, while trying to neutralize her generally.

    The SCOTUS making up shit to do what “feels right” (even when something “right” does need to be done) tortures the Constitution in some respects AND neuters it, like making the 9A and 10A irrelevant, in other ways.

    1. There’s nothing in the Constitution about “neutralizing” criminal suspects or whatever you’re getting at. Is this cop sympathy? Poor widdle cops need to get home at night. Doing a tough job and all that.

      For once the SC does not get on it’s knees and shine some cop’s knob.

      1. How do you figure it is cop sympathy when I say they tried to kill her?

        That is the claim she should win on. Not one of a semantic torturing of the meaning of “seize.” That is the dissent’s point. Something should be done… just not *this* something because it actually causes future problems.

        When there are clear solutions to problems, the court should use them. The court should not let “doing something” even when something should be done serve as enough justification for doing just anything.

    2. That seems hair splitting.

      The neutralizing is part of the process of seizing.

  8. Puffendorf defines occupancy of beasts feræ naturæ, to be the actual corporeal possession of them, and Bynkershoeck is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.

  9. Did I miss something in the story? A woman drives away and two officers that had been sneaking up in the darkness behind her found that to be a crime worthy of a death sentence? What was the crime? She was suspicious only to the the two officers and was that reasonable? No. They were not in the area to observe the woman nor were they on routine patrol but had a specific task and disregarded that task to go over and attempt to bully a citizen who drove away whether she knew they were police or even if she did not see them at all, they did not put on the overhead strobe lights an blast a siren at her. She could not have felt she was evading a traffic stop as she was already stopped and they were on foot.
    The supreme court has indeed given itself far too much power, way too much- and the courts that constantly are trying to interpret the Constitution find that game amusing especially the late Scalia. The courts they say are for the people but you need a goddam attorney to help you make any sense out of the mess it really is. Madison wrote the Bill of Rights said any search or seizure without a valid or proper warrant is tyranny. Every idiot these days is re-interpreting and cannot even read. Jesus H Christ look who is in the White House!

    1. At least according to Gorsuch’s dissent, you very much did miss a lot. I presume Gorsuch has his facts straight, but if so, I just don’t understand what anyone is doing here. By Gorsuch’s telling, the cops had sufficient grounds “subject of an arrest warrant” to apprehend Torres – to seize her.
      Is/IsNot a seizure should be irrelevant. They had *grounds* to seize her, and grounds to shoot at an oncoming car charging at them
      #####
      This case began when two Albuquerque police officers approached Roxanne Torres on foot. The officers thought
      Ms. Torres was the subject of an arrest warrant and suspected of involvement in murder and drug trafficking. As
      it turned out, they had the wrong person; Ms. Torres was
      the subject of a different arrest warrant. As she saw the
      officers walk toward her, Ms. Torres responded by getting
      into her car and hitting the gas. At the time, Ms. Torres
      admits, she was “tripping out bad” on methamphetamine.
      Fearing the oncoming car was about to hit them, the officers
      fired their duty weapons, and two bullets struck Ms. Torres
      while others hit her car.

  10. Everyone acting like this is an arch-conservative SCOTUS, and we keep getting interesting rulings like this. I’m here for it.

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