By Jeffrey Bellin
on March 25, 2021
at 5:15 p.m.
Amid growing national awareness of police violence, the Supreme Court issued an opinion on Thursday in a closely watched criminal case clarifying the meaning of the term “seizure”.
The fourth amendment contains important constitutional limits on abusive policing. These safeguards take shape in two ways: restrictions on the introduction of unconstitutional evidence and civil actions against police officers who violate constitutional rights. However, the fourth amendment does not regulate police work in general. It only prohibits unreasonable “searches and seizures”. It is for this reason that the Court’s decision in Torres v Madrid to maintain a full understanding of the term “seizure” has important implications for the regulation of the use of force by the police.
The case concerned an attempt by two New Mexico police officers to stop a car driven by Roxanne Torres. The officers trying to execute an arrest warrant against another person approached Torres and her parked car. When they tried to speak to her, Torres drove away. The officials, alleging for fear of their safety, shot the car and injured Torres, who then drove off. The question the judges resolved on Thursday was whether this unsuccessful effort to stop Torres was a “seizure”. Officials claimed that people would only be confiscated if stopped while Torres continued. The U.S. 10th Circuit Court of Appeals agreed and dismissed Torres’ civil rights claim against the officers for violating their Fourth Amendment rights.
In a 5-3 statement from Chief Justice John Roberts, the majority turned around and concluded that officials had confiscated Torres despite later escaping. The result fits right into the next precedent, the 1991 California v Hodari D. case. In this case, the court stated: “[t]The word “seizure” easily means the laying on of hands or the use of physical force to restrict movement, even if it is ultimately unsuccessful. “(Emphasis added.) Referring to this and other languages in this case, the Chief Justice stated in the Torres Opinion that”[w]We have largely covered this area in California against Hodari D. “
Roberts tries, however, to put the opinion on its own. In a violent contradiction, he states that the judges here “arrive at the same conclusions independently of one another”, regardless of whether the court is bound by a rigid decision or not (the judges’ efforts to repeat precedents over and over again). Majority opinion does this for two main reasons: history and text.
In cases of the fourth amendment, the story often falls short because the police as we know them were almost non-existent in the 18th century. The majority, however, insist that this time “the cases and comments speak with virtual unanimity about the question we face today”. But the majority’s certainty sounds hollow when they identify “the closest decision” as the Countess of Rutland’s 1605 case. In this case, the Serjeants-at-Mace carried out a debt collection judgment against Isabel Holcroft, an English noblewoman. The sergeants touched Holcroft with a mace (you guessed it) and exclaimed, “We’re arresting you, madam.” The majority say that being arrested is undoubtedly a “fit” and touching a mace is like being hit with a bullet. This story points the way towards today’s arrest.
To be fair, the majority cite other old cases and treatises. However, the dissent of Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, indicates that many cases of the era involved esoteric debt collection practices. For example, debt collectors could only break into debtors’ homes if they touched them first, and often by reaching in through a window! In all cases it is about the “laying on of hands” (or maces), not weapons or projectiles. Gorsuch gets rhetorical points when he scolds the majority for “wandering around” in the huge common law library, “accidentally pulling volumes off the shelf, tearing out passages”, “scraping out parts” and making a “new pastiche”. But Gorsuch’s argument is really a criticism of the limits of originalism in this context, not of the particular rule announced in this case.
The majority’s interpretation of the text is easier. It is recognized that seizures are most obviously occurring when a person is stopped. However, the majority point out that it will not be decided that Torres was confiscated from the time of the shooting. Instead, Roberts writes that “the officers seized Torres for the moment the bullets hit them”. (Emphasis added.) Citing Justice Antonin Scalia in Hodari D., the majority declares that a seizure is “a single act and not a continuous fact”. At the time the Constitution was passed, “an ordinary user of the English language could, as before, remark: ‘She has grabbed the purse catcher, but he has broken out of her grip. ‘”In previous cases, the court also stated that a seizure is the use of physical violence that“ is somewhat restrained[s] the freedom “of a person. Given that Torres was shot twice in the back and sustained physical injuries, it seems reasonable to conclude that there has been a restriction on her freedom and hence a “seizure”.
The opinion offers two surprises. Most important is the broad participation of the majority. The majority are trying to draw a clear line that goes beyond the facts of this case. Both at the beginning and at the end of the statement, the court announced: “We believe that the use of physical force on a person’s body with the intention of holding them back is a seizure, even if the person does not submit and does not submit is subject. ”Notice that this includes not only significant restrictions on freedom, but also any touch. This is not an accident. Roberts downplays the implications of this breadth by stating:
While a mere touch may be enough to cause a seizure, the amount of force required remains relevant in assessing the objective intention to hold back. A pat on the shoulder to attract attention rarely shows such intent.
The majority is right that the letter of intent eliminates some minor touches from the definition of “seizure”. But not all. Small interventions, such as B. Tapping on the shoulder, is considered by the majority to constitute seizures if they are intended as a prelude to restraint, even if the rooster flees into a crowd. The dissent suggests other scenarios that might fall under the general rule: laser beams damaging the retina, pepper spray irritating the lungs, and loud noises damaging a suspect’s eardrum. These are more difficult cases than the one presented here, and the court seems (at least arguably) to resolve them all with its broad approach.
The second surprise is the extent of the disagreement. Since the case followed directly from Hodari D., a 7-2 statement written by Scalia as a textualist / originalist, some observers expected the court to come to a larger settlement. Instead, the dissent spends 26 pages (nine more than majority opinion) explaining why Scalia and the court were wrong in 1991 and Roberts and the majority were wrong in 2021. The dissent not only scoffs at the arguments of the chief judges, but also blames the majority of the result-determining reasoning: “An impulse that people like Ms. Torres should be able to claim damages.” Roberts replies, tormented: “There is no reason to suspect. … [W]We simply agree with the analysis … made thirty years ago by Justice Scalia, along with six of his colleagues, rather than the competing view that the dissent calls for today. “
The Bright Line rule announced by the court signals that the remaining questions are now the responsibility of the lower courts. For Torres, her civil rights claims against the officers can continue, although the majority note that she still has to overcome a number of other obstacles – for example, showing that the seizure was “unreasonable” and that the officers are not entitled to qualified immunity – to ultimately defeat themselves enforce.