The alleged facts of Torres v. Madrid are disturbing.
Roxanne Torres says she was sitting in a car in a parking lot in Albuquerque, New Mexico, when she was approached by two armed men who tried to speak to her. Believing that they were car thieves, Torres quickly fled to escape them, and the men fired a total of 13 shots at her as she fled – two of which hit her in the back.
It turns out that the two men were police officers and were in the parking lot to execute an arrest warrant against a woman who lived in a nearby apartment building. (The police dispute Torres’s account of what happened during their encounter with them. But at this stage in Torres’s lawsuit against the police, the courts must assume that their version of the facts is true to determine whether the situation she describes is equivalent to illegal conduct by the police.)
After Torres escaped the two policemen – driving the car with only his right arm because the bullets in the back temporarily paralyzed the left – she supposedly drove a short distance, stole a different car she found standing nearby, fled to another city and searched medical care. She ended up being taken by helicopter to a hospital in Albuquerque so she could receive better treatment, and the police arrested her the next day.
Torres later sued, claiming that the police used excessive force, violating the Fourth Amendment, when they opened fire on her. But there was a potential problem with your process. The Fourth Amendment protects against “irrational searches and seizures” and it is well established that when the police use force against a suspect, it can constitute a “seizure”. But the police point to the fact that Torres successfully avoided them for a long time, and claim that there was no “apprehension” in this case.
The central issue in Towers it is if the police “apprehend” someone and therefore potentially violate the Fourth Amendment, if they physically hurt a person without successfully stopping or interrupting their movement.
In a 5-3 decision (Justice Amy Coney Barrett did not participate in Towers because it was discussed before she entered the Court), the ministers decided that Torres’ lawsuit against the police could continue. “We maintain that the application of physical force to a person’s body with the intention of restraining it is an apprehension,” wrote court president John Roberts to the majority, “even if the person does not submit and is not subjugated.”
Roberts’ opinion was followed by his three liberal colleagues, in addition to Judge Brett Kavanaugh. Judge Neil Gorsuch wrote a dissent accompanied by Judges Clarence Thomas and Samuel Alito.
This decision does not necessarily mean that the Torres process will eventually prevail. As Roberts emphasizes, “all we have decided today is that the police have arrested Torres by shooting her with the intention of restricting her movement.” It is still possible that a later case will determine that the police acted reasonably (the facts of what happened during the officers’ meeting with Torres are disputed), or that the officers are exempt from responsibility for a doctrine known as qualified immunity.
But at least the Towers The decision means that officials will not be immune from Fourth Amendment processes because they have tried, but failed, to arrest someone using excessive force.
The police can “arrest” someone, even if they do not successfully contain them
It’s a little surprising that the Supreme Court needed to hear Towers, because the Court has already discussed a similar issue in California v. Hodari D. (1991), a case that asks at what point during a policeman’s pursuit of a suspect that suspect was “apprehended” by the policeman.
As Judge Antonin Scalia wrote to the Court in Hodari D., “The quintessence of ‘apprehending the person’ under our Fourth Amendment jurisprudence” is a prison, and “the mere apprehension or application of physical force with legal authority, whether or not it succeeded in subduing the detainee, was sufficient” to constitute a arresting prison.
So, because the police used physical force against Torres – firing at her – his alleged actions in the Towers if it constitutes a “prison” and therefore amounts to a “seizure” under the Fourth Amendment.
Still Hodari D. it generated some confusion among the lower court judges, who disagreed about the meaning of Scalia’s definition of the words “prison” and “apprehension”.
As Gorsuch argues in disagreement, the facts of Hodari D. were quite different from the facts of Towers, and they did not actually present a case in which a police officer used physical force against a suspect without successfully restraining him. When a court issues an opinion, those parts of that opinion that are essential to the court’s reasoning are considered the “decision” of that case and are binding on the lower courts. But the passing of observations through a court that are not essential to the decision is considered “dicta” and is not considered binding.
Thus, while some lower courts have followed the approach that Scalia has established in Hodari D.According to the opinion of others, the arrest of the Fourth Amendment occurs only when the police take “possession” of a person or object.
To resolve this disagreement in Torres’ favor, Roberts examines a long line of old cases that support Scalia’s approach to the Fourth Amendment, including an 1828 English case stating that “all authorities, from the first moment to the present, establish that a touch cord is sufficient to constitute a prison, even if the defendant does not submit, “and a 1605 case involving an English countess who was placed under arrest after police officers carrying a mace” showed her her mace and touched her body with she, I told her, we arrested her, madam. “
Gorsuch, for his part, came armed with his own series of centuries-old cases and treaties to argue that the police must really “take possession of someone or something” to “apprehend him”. He quotes a Supreme Court decision of 1825 interpreting a statute involving the seizure of ships to demand “open and visible possession”, and a 1769 text defining “a prison” as “the apprehension or restraint of a person in order to be close to respond to an alleged or suspected crime. ”
It is an unsatisfactory discussion between Roberts and Gorsuch, which largely reveals that a trip through legal antediluvian sources will reveal evidence that supports both possible interpretations of the Fourth Amendment. Sometimes, originalism does not have all the answers.
However, although the Court’s journey through decadent texts does not really resolve the dispute in Towers, there are profound practical reasons for preferring Roberts’ rule over Gorsuch’s.
Imagine, for example, that a police officer randomly opens fire on two innocent passers-by, without any justification for doing so. One of these spectators is hit in the arm and successfully escapes; the other is hit in the leg and therefore cannot escape the officer.
Under Roberts’ rule, these two viewers could file a Fourth Amendment lawsuit against the officer. But under Gorsuch, only the person hit in the leg could do that. Whatever the creators intended to accomplish when they drafted the Fourth Amendment, it is hard to imagine that they wanted to write such an arbitrary distinction in the Constitution.
Furthermore, if a “seizure” does not occur until a suspect is contained, then, as Roberts writes, “it will often not be clear when a policeman manages to gain control of a struggling suspect.” Courts, according to Roberts, “will question whether a policeman exercises control when he grabs a suspect, when he approaches him or just when he slaps the handcuffs.”
A practical effect of Towers will the courts not have to consider such imponderables. And the case also means that law enforcement officers who use excessive force may be subject to Fourth Amendment lawsuits, even if the perpetrator successfully escaped the officer.