SCOTUS QUIETLY RESPONDS TO POLICE BRUTALITY
In Torres v. Madrid the Court Redefines “Seizure” and Tries to Resurrect the Fourth Amendment.
This is the third in a series of articles that looks at issues around judicial integrity and a crises of trust in the U.S. justice system.
The case of Torres v. Madrid, 592 U.S. ___ (2021), will . . . Blow. Your. Mind.
“[T]he question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.” But, make no mistake, while the stated question in the case is what constitutes a “seizure,” the real issue is whether Torres is entitled to Fourth Amendment protections, and whether the officers can be held accountable.
In the end, the Court ruled that, yes, this person could pursue a Fourth Amendment claim against the officers who shot her for unreasonable seizure.
Make no mistake, while the stated question in the case is what constitutes a “seizure,” the real issue is whether Torres is entitled to Fourth Amendment protections, and whether the officers can be held accountable for their brutality.
This decision has a little bit of everything.
- We have a radical reconsideration of one of the most important and fundamental amendments in our Bill of Rights.
- We have an epic battle of veiled insults between Justice Gorsuch and Chief Justice Roberts.
- We have a very rare occasion where textualist and originalist philosophies seem to lead to different outcomes, resulting in a Dissent that is, at times, at odds with itself, despite its insistence to the contrary.
- We have a case that involves a police shooting, and an unspoken subtext: the epidemic of extra-judicial killings, the ubiquity of cell phone videos, the disparate treatment of citizens based on race, a parade of officer acquittals, the violent suppression of peaceful protests, calls for the defunding of police forces in municipalities throughout the country, and, most importantly, the collective shrinking of the public’s trust in the judicial system.
- And we have the long lost wishes and trepidations of a Founding Father.
There’s a lot to unwind here. Let’s get started.
THE FACT PATTERN
The facts involve mistakes based on assumptions on both sides. Two New Mexico State police officers went to an apartment complex in Albuquerque, at night, to execute an arrest warrant. Roxanne Torres, a person unrelated to the warrant, was getting into her car in the complex parking lot. The officers approached her thinking that she was the subject of the warrant. Torres, who had been experiencing methamphetamine withdrawals, saw their guns, assumed they were carjackers, and sped off. The officers fired 13 times, striking Torres twice. She was arrested the next day while being treated for the gunshot wounds in a hospital in Albuquerque.
Torres pleaded no contest to aggravated fleeing from a law enforcement officer (among other things); but sought damages for the shooting, citing a violation of her Fourth Amendment rights against excessive force and unreasonable seizure.
While the Fourth Amendment addresses search and seizure, this case is specifically focused on seizure.
It’s important to note, at the outset, that “the Framers selected a term — seizure — broad enough to apply to all the concerns of the Fourth Amendment: “persons,” as well as “houses, papers, and effects.” (Torres v. Madrid, Opinion 4.) The Fourth Amendment protected not only property and papers, but also persons. A person could be seized as much as a thing. Common law would later define arrest as “the quintessential seizure of a person.” (Payton v. New York, 445 U. S. 573, 585; California v. Hodari D., 499 U. S. 621, 624.)
Paired down to its case-relevant essentials, the Fourth Amendment would read: “The right of the people to be secure in their person . . . against unreasonable . . . seizures, shall not be violated . . . but upon probable cause[.]”
Question Facing the Court:
The issue is whether the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person. (Torres, Opinion 3.) Put more specifically, “the question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.” (Torres, Opinion 1.)
James Madison and the “Unnecessary” Amendments
James Madison, who drafted and enthusiastically championed the Bill of Rights, was initially dismissive of the idea of what eventually became the first ten amendment to the Constitution because he believed they would be ineffectual.
For one thing, all rights not enumerated in the Constitution were reserved to the states. (Andrew Burstein & Nancy Isenberg, Madison and Jefferson Chapter 5 (Random House 2010).)
For another, it was highly unlikely that the federal government would violate individual liberties. Declarations of rights, he observed, were routinely violated at the state level, not the federal. The real danger came from a majority oppressing a minority. (Id.)
Nevertheless, Madison saw the utility in creating a tool to mobilize the public to resist such government encroachments, and Thomas Jefferson favored the creation of a supplement to address any unforeseen deficiencies in the text. In addition, Madison thought it prudent to address the concerns expressed at the various ratifying conventions. The list of amendments presented by Madison was condensed from over 200 of these concerns and requests. The Fourth Amendment was among them. (Id.)
According to Madison, most objections to the Constitution expressed at the various ratifying conventions had nothing to do with the Constitution’s structure, but with the fact that “it did not contain effectual provisions against encroachments on particular rights.” Madison’s goal in drafting the Bill of Rights was not for the government to grant rights but, rather, to curtail interference with them. (Lynne Cheney, James Madison: A Life Considered Chapter 8 (Penguin Books 2014).
As a result, the grammatical structure of the ten amendments is phrased in terms of rights that will not be abridged, deprived, infringed or violated. (Id.).
In the case of the Fourth Amendment, the infringement cannot happen without probable cause. This was in response to the English practice of issuing “writs of assistance” which allowed the bearer to enter any house and seize any goods they presumed to be “prohibited.”
What would Madison have thought of the recent ubiquity of cell phone videos showing the force used by police officers against unarmed citizens, disproportionately black citizens, for misdemeanor infractions? Would he have believed that the Bill of Rights applied to these cases as well as to cases of British soldiers looking for contraband?
THE OPINION — CJ Roberts
HELD:
In a 5–3 decision the Court determined that, “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.” (Torres, Opinion 1.)
The ruling was largely split along ideological lines, with the liberals voting with the majority and the conservatives voting against, and with C.J. Roberts as the swing.
SEIZURE, TOUCH, DISTANCE, INTENT
It’s no accident that Roberts, in his opinion, relies heavily on an opinion written by the most famous of originalist, the late Justice Antonin Scalia. California v. Hodari D., 499 U.S. 621 (1991), which is quoted frequently in both the Opinion and the Dissent, articulates two principles: 1) Common law arrests are Fourth Amendment seizures, and (more importantly), 2) the common law considered the application of force to the body of a person with intent to restrain to be an arrest, no matter whether the arrestee escaped.
According to Justice Scalia and a 7-member majority in Hodari D., “the common law treated the mere grasping or application of physical force with lawful authority as an arrest, whether or not it succeeded in subduing the arrestee.” (Id., Opinion 4.) “[T]he application of physical force to the body of a person with the intent to restrain [is] an arrest — not an attempted arrest — even if the person does not yield.” (Torres, Opinion 1–2.)
The question, when reviewing an incident of alleged infringement, is whether the conduct “objectively” manifested an intent to restrain. (Id., Opinion 2, 10.) This objective/subjective distinction is important because a violating party — whether an officer or a criminal — will always paint their intentions in a positive light, regardless.
Once it’s established that the “intent” in the touching is key to determining whether a seizure is taking place, the question becomes about the nature of that touching. Is the amount of force applied a factor? Does the force have to be by hand, or can it be done with an object? What about distance? Does it matter how close the arresting officer is to the person being seized?
In current American jurisprudence, a slight touch, or a touch with something other than the hand, like a cudgel, is enough provided the intent is clear. (Id., Opinion 6, 8.) Though, clearly, the amount of force applied in the seizure “remains pertinent in assessing the objective intent to restrain.” (Id., Opinion 10.)
As for distance, the majority insists that the distance from which the force is applied is irrelevant to this analysis since “[t]he focus of the Fourth Amendment is the privacy and security of individuals, not the particular form of governmental intrusion.” (Id., Opinion 2 & 9.)
BULLETS IMPLICATED
In summation, when defining “seizure” we look to the law of “arrest.” A simple touch could qualify, that touch can be with something other than the hand so long as there is objective intent, and distance is irrelevant.
Touch with an object from a distance with intent. This bring us to bullets.
The majority argues that there does not appear to be any common law addressing bullets under arrest since since the widespread use of firearms by law enforcement did not appear until the late 19th Century. (Id., Opinion 7, 9.) Prior to that it was almost impossible to use “deadly force from a distance as a means of apprehension.” (Id., Opinion 9.)
This appears to leave “seizure” and “arrest” open for Court interpretation.
THE OFFICERS’ ARGUMENTS
Finally, Roberts addressed, and rejected, the various arguments forwarded by the officers. He rejected the officers’ suggestion that a single test — intentional acquisition of control — should be applied for all seizure types (Id., Opinion 11.). He rejected their claim that the common law doctrine of seizure was a narrow legal rule specifically for debtors (Id., Opinion 13.). And he rejected their argument that use of force becomes a seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” (Id., Opinion 15.)
Taken as a whole, “the conduct of the officers — ordering Torres to stop and then shooting to restrain her movement — satisfied the objective test for seizure.” (Id., Opinion 10.) First, the shooting qualified as a seizure under the Court’s analysis. Second, the objective intent is clear, regardless of Torres’ subjected and professed lack of comprehension regarding the intent of the officers.
THE DISSENT — Gorsuch
Roberts’ opinion was 18 pages. Gorsuch’s dissent was 26. As is characteristic for Gorsuch, he presents a largely textualist and originalist argument, accusing the majority of disregarding the Constitution’s original and ordinary meaning, dispensing with conventional interpretive rules, and bypassing the main currents of the common law. (Id., Dissent 1.) Gorsuch’s opening paragraph set the tone.
“The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.” (Torres, Dissent 1.)
DISSENT DEFINITION OF SEIZURE
Gorsuch contested the Court’s idea that a “mere touch” would qualify as a seizure, claiming that the case law that this idea was drawn from is confusing and contradictory and that the statement, made by Justice Scalia in Hodari D., was “dicta” since it did not affect the outcome of the case it was cited from and therefore does not control as a matter of stare decises. (Id., Dissent 4–5.)
Roberts disregarded this argument. The Court adopted the argument put forward by Justice Scalia. Whether it was “dicta” or not was irrelevant since, as a result of this holding, it is no longer dicta. (Id., Opinion 4.)
Gorsuch accepts that an arrest is a seizure but differs with regard to what an arrest is. Sticking to a textualist argument, he quotes Blackstone regarding an arrest as an “apprehending or restraining of one’s person,” “apprehending, taking and detaining,” “to actually have the suspect in custody.” (Id., Dissent 11.) He then provides what he believes to be corresponding examples involving false imprisonment, escape, capture, and other terminology that alludes to the actual physical detention of a person. (Id., Dissent 11–14.)
Gorsuch goes on to invalidate the “touch” justification by tracing the historical significance of touch in the debtor cases as a “useful farce” for bailiffs who are unable to force entry into a private dwelling. In his retelling, touching was like a child’s game where, if you can touch the debtor through an open window, you are then allowed to break into the house and seize the person. Gorsuch claims that this “farce” has narrow application and should not have been extended to criminal cases. (Id., Dissent 14–18.)
Later, Gorsuch points to two cases that proceed the 1991 Hodari D., both of which define seizure as a restraint of liberty and termination of freedom of movement. While these cases may give him support, they are also older, an inconvenience he grudgingly admits then brushes off. (Id., Dissent 21.)
Gorsuch further rejects the Opinion’s seizure/arrest analogy by pointing out that these cases deal with “arrests” not “seizures,” and, dissimilarly, the Fourth Amendment refers to “seizures,” not “arrests” (Id., Dissent 16.), regardless of the fact that an arrest has been established as the seizure of a person.
FIREARMS AND REMEDIES
Gorsuch counters Roberts’ argument that 18th Century law could not have anticipated the ubiquity of firearms by law enforcement by pointing out that guns (and arrows, and cudgels) have been around since the 18th century, even among tax collectors. Nevertheless, even after all these years there is no case on point that addresses a weapon as a touching. (Id., Dissent 19–20.)
As a follow-up, Gorsuch stresses that the use of a firearm or arrow might amount to a battery, but not an arrest. He cites a case where a man who was shot in the eye by an officer sued the officer for “assault, battery, and wounding — not false imprisonment.” (Id., Dissent 20–21.)
THE CANON OF WORD USAGE
As a textualist, Gorsuch takes particular exception to Roberts’ contention that “the nature of a seizure can depend on the nature of the object being seized.” According to Roberts, whereas a touch may work for the seizure of a person, it does not necessarily apply to objects such as houses or papers. (Id., Opinion 16.)
Gorsuch rejects Roberts’ differentiation between the seizure of an object and the seizure of a person. “So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway.” (Id., Dissent 7.)
Gorsuch cites as canon the practice of giving a word the same meaning each time it is used. As such, you cannot parse out one seizure for objects and another for persons. (Id., Dissent 7–8.)
Roberts points out that there is, in fact, such a thing as a seizure without possession, as evidenced by the accepted concept of the “constructive detention” of persons “never actually brought within the physical control of the party making an arrest.” (Id., Opinion 16.)
GORSUCH’S INNER STRUGGLE: TEXTUALIST VS ORIGINALIST LOGIC
Finally, Gorsuch argues that seizure is not the proper remedy for police brutality. “This Court has already said that a remedy lies under §1983 and the Fourteenth Amendment for police conduct that “shocks the conscience.” (Id., Dissent 25.)
What’s interesting about the Dissent, especially in light of 42 U.S.C. 1983, is what it concedes, and how it stubbornly refuses to address those concessions for semantic reasons.
Textualists and originalists are typically seen as one in the same and, in fact, the terms are often used interchangeably. But in this case, a textualist could argue that the common definition of the word “seizure” would require some sort of control or restraint, while an originalist could argue that reading the word “seizure” so narrowly defeats the intent that the founding fathers had in writing the Fourth Amendment concerning government infringement.
This internal textualist/originalist conflict can be seen in some of the originalist concessions that Gorsuch grudgingly gives by way of defending his textualist point.
- “Qualified immunity poses a daunting hurdle” for those seeking recovery for behavior that doesn’t fall under the “shocks the conscience” exception. (Id., Dissent 24.) This concession would justify the originalist argument about the intent of the Fourth Amendment to preserve rights.
- Gorsuch points out that the new rule laid out in the Opinion would only apply to “those who (1) lack a state-law remedy, (2) evade custody, (3) after some physical contact by the police, (4) where the contact was sufficient to show an objective intent to restrain, (5) and where the police acted “unreasonably” in light of clearly established law, (6) but the police conduct was not “conscience shocking.” (Id., Dissent 24–25.) The “hard truth,” he points out, is that “[n]ot only does the majority’s “mere touch” rule allow a new cause of action in exceedingly few cases (nonconscience-shocking-but-still-unreasonable batteries intended to result in possession that don’t achieve it). It supplies no path to relief for otherwise identical near-misses (assaults).” As characterized here, an originalist could argue that the law has become so distorted that it would be unrecognizable to the founders. And, while he criticizes the opinion for handing down a ruling that would apply to only “a vanishingly small number of cases,” that vanishingly small number would mean the world to someone like Torres who almost lost her life. Id., Dissent 25.)
- Gorsuch, intentionally or not, continues to make the point that the law, as currently interpreted and enforced, is unjust. “A fleeing suspect briefly touched by pursuing officers may have a claim. But a suspect who evades a hail of bullets unscathed, or one who endures a series of flash-bang grenades untouched, is out of luck.” (Id., Dissent 25.)
All of these objections actually support the majority’s argument, not refute it. In short, Gorsuch acknowledges a serious problem in the judicial system that was addressed by the Fourth Amendment, but which he refuses to correct for semantic reasons.
Maneuvering Around the Fourth Amendment
Paired down to its case-relevant essentials, the Fourth Amendment reads as: “The right of the people to be secure in their person . . . against unreasonable . . . seizures, shall not be violated . . . but upon probable cause[.]”
In recognition of these goals, U.S. Code 42 regarding right of civil action against those operating under the color of law specifically calls out the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
Unfortunately, despite the ratifying of the the Fourth Amendment, the cards have long been stacked against victims of government abuse, either through the amendment or through statute, as is clearly illustrated in the lower court’s rulings in this case.
- “Affirming the District Court’s grant of summary judgment to the officers, the Tenth Circuit held that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.”” (Torres, Syllabus 1.)
- The Appellate Court, relying on Circuit Court precedent, ruled that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to control over the suspect.” (Torres, Opinion 3.)
- “[U]nder longstanding circuit precedent, the courts explained, a Fourth Amendment “seizure” occurs only when the government obtains “physical control” over a person or object. Because Ms. Torres “managed to elude the police for at least a full day after being shot,” the courts reasoned, the officers’ bullets had not “seized” her; any seizure took place only when she was finally arrested back in Albuquerque the following day.” (Torres, Dissent 3.)
The Fourth Amendment was specifically written to address infringement by government officials on the liberties of its citizens, but a) the current interpretation does not protect you if the officer uses a gun, b) if the officers had succeeded in stopping or killing Torres it would have been a seizure, but since Torres got away it was only an attempted seizure, and attempted seizure is not addressed in the Fourth Amendment, and c) the same holds true for excessive force since “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” (Torres, Syllabus 1.)
Bottom Line: A person who fights for her life and manages to escape an officer’s excessive force, even after having sustained gunshot wounds by that officer, and even when the victim is the wrong person, is not afforded the same rights and protections as someone who dies from those injuries.
By Gorsuch’s logic, you are only protected if the officer is a bad shot, or a storm trooper.
EAVESDROPPING ON THE JUSTICES
Make no mistake, while the stated question is what constitutes a “seizure,” the real issue is whether Torres is entitled to Fourth Amendment protections and whether the officers can be held accountable for violating it.
The backstory to this drama includes the fomenting of a police state under a certain former president. The smart phones all over the country pointed at cops who think they are invulnerable, and a justice system that proves that they are, in fact, invulnerable. The singling out of Black people by law enforcement in a manner that goes way beyond implicit bias, and with fatal consequences. Most importantly, this drama involves a general public that has lost trust in the judicial system, and what that can mean for the long term stability of our country.
A Criminal Charge Against a Police Officer In The Line Of Duty Should Automatically Raise Fourth Amendment Charges
True, “Ms. Torres had ready-made claims for assault and battery under New Mexico law” (Torres, Dissent 24), but this suit is filed against an official operating within his government capacity, not some random citizen with a gun. A citizen should not have to resort to criminal action for abuse of power against a government official if the U.S. Constitution specifically called out for justice against such violations. A battery, or a murder, by a government official in the line of duty is, in fact, an abuse of power protected under the Fourth Amendment. To argue otherwise is to bastardize the purpose of the amendment and to gaslight the general public into submission.
Madison hated the sausage making that his amendments went through in the House and Senate. (Burstein, Chapter 5.) What would he have thought of qualified immunity in these cases? How much would he have hated the sophism that allows law enforcement to forego these amendments and escape accountability? How much would he have hated the nullifying of these protections by the very people he was trying to protect us against?
As for the Dissent’s insistence on hiding behind the definition of “touch,” I couldn’t help but imagine a plaintiff, Torres, up on the witness stand.
Question: Ms. Torres, in your opinion, did the bullets touch you?
Torres: Hell yeah! I had to be helicoptered to a hospital for it, didn’t I?!
Reading Between the Lines
Gorsuch may have a point as far as common definitions of words are concerned. But in the process he effectively undermines the Fourth Amendment by disconnecting the meaning of words from the statutory intent, and in the process gives comfort to those who would use this undermining to abuse their authority against those of a different race or political philosophy.
Notice how local law enforcement has become militarized with surplus federal gear. Consider how they have responded to peaceful protests: by using chemical agents that have been banned in warfare by the Chemical Weapons Convention; by kettling protestors so that they can’t escape being beaten with clubs; by firing directly at protestors faces with rubber bullets and tear gas canisters; by applying inequitable and disproportionately violent enforcement of some factions (BLM) over others (Proud Boys). And, remember, these protests were waged against police brutality itself, especially the killing of unarmed black men for minor infractions or for no infractions at all. In other words, the police met protests against police brutality with . . . police brutality.
Where were these protections that James Madison envisioned when Eric Garner was being strangled to death for selling loose cigarettes? Or when Breonna Taylor was shot in bed?
These nationwide patterns of abuse provide evidence of Madison’s concern that civil rights were routinely violated at the state level. They also confirm the belief from those who scoffed at Madison that the amendments were essentially powerless. Even Gorsuch, in his Dissent, recognized this. “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.” (Id., Dissent 23.)
The Honeymooners
Finally, it’s worth noting the exchanges that happened between the Roberts and Gorsuch within the Opinion and Dissent. When reconfigured as a back and forth, it has the definite feel of a bickering couple. See for yourself and tell me if I’m off base.
We enter mid-argument. Gorsuch is standing in the couple’s tiny kitchen in his bus driver’s uniform, waving his arms and presenting analogies:
“Then there’s the question what kind of “touching” will suffice. Imagine that, with an objective intent to detain a suspect, officers deploy pepper spray that enters a suspect’s lungs as he sprints away. Does the application of the pepper spray count? Suppose that, intending to capture a fleeing suspect, officers detonate flash-bang grenades that are so loud they damage the suspect’s eardrum, even though he manages to run off. Or imagine an officer shines a laser into a suspect’s eyes to get him to stop, but the suspect is able to drive away with now-damaged retinas. Are these “touchings”? What about an officer’s bullet that shatters the driver’s windshield, a piece of which cuts her as she speeds away? Maybe the officer didn’t touch the suspect, but he set in motion a series of events that yielded a touching. Does that count? While assuring us that its new rule will prove easy to administer, the majority refuses to confront its certain complications. Lower courts and law enforcement won’t have that luxury.” (Id., Dissent 23.)
Roberts, without looking up, sets something down on the stove and wipes his hands on his apron.
“We do not accept the dissent’s invitation to opine on matters not presented here — pepper spray, flash-bang grenades, lasers, and more.” (Id., Opinion 9–10.)
Gorsuch, undeterred, continues his gesticulating.
“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.” (Id., Dissent 24.) Gorsuch sets his hat on their round kitchen table, marches up to Roberts and eyes him accusingly. “[W]e have no authority to posit penumbras of “privacy” and “personal security” and devise whatever rules we think might best serve the Amendment’s “essence.”” (Id., Dissent 24.) (Note: Gorsuch puts quotes around the word “essence,” but I do not see that word anywhere in the Opinion.)
Roberts, arms akimbo, glares back at Gorsuch.
“There is no call for such surmise. At the end of the day 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.” (Id., Opinion 17.)
The audience laughs. Orchestral music rises. We go to commercial.
(My apologies to the justices for this bit of theatre. I sincerely hope I didn’t overstep.)
FINAL THOUGHT
Again, and I can’t repeat this enough, the biggest problem is that the focus in law is not on the infringement by the government official, but on the victims ability to evade or survive the infringement by that government official. The Founders would have howled at this! Hopefully this ruling moves us one step away from that flawed logic.
Again, and I can’t repeat this enough, the biggest problem is that the focus in law is not on the infringement by the government official, but on the victims ability to evade or survive the infringement by that government official. Hopefully this ruling moves us one step away from that flawed logic.
Maybe the important thing for this quarrelling couple is that they are communicating, and that they do, through all the veiled references, hear each other. I hope, and we should all hope, that this squabble forces a reckoning, and a deep consideration of where this country is headed, somewhere down the line.
MAHALO MUCHO!!!
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