The views expressed in this article are those of the author and do not necessarily reflect the views of Gunset Training Group or its affiliates.
Click HERE to view the original post on the GunSnobbery Blog
This was the title of an article I read today about the Supreme Court of the United States (SCOTUS) decision in Torres v. Madrid, which was released this week. When I first read the title of the article, I had a “the sky is falling, the sky is falling” moment where I thought, “oh, great, what now?” But then I read the SCOTUS opinion and now I’m like “meh, big deal”. So this article is for my fellow LEOs out there.
So here’s the bare bones of the case – 2 New Mexico State Troopers, wearing Tac vests with “POLICE” markings and plain clothes went to an apartment complex in Albuquerque looking for someone on a warrant. They didn’t find that person but approached Torres when they saw her and another person by a car. Here’s an important fact – they knew she wasn’t the person with the warrant. To make a long story short, the other person ran into an apartment and Torres got into the car. She says she thought the troopers were carjackers and drove away quickly when she heard someone trying to open the car door. The Troopers say they “approached the Cruiser’s closed driver-side window and told Torres several times, “Show me your hands,” as he perceived Torres was making “furtive movements . . . that [he] couldn’t really see because of the [Cruiser’s] tint[ed]” windows.” And, they “perceived the driver was making ‘aggressive movements inside the vehicle.’” The parties dispute what happened next – the Troopers say she drove at them and they shot at her out of fear they would be run over. Torres says they were not in her way she was just fleeing from carjackers. What is not disputed is that she was shot twice in the back as she drove away. Oh yes, can’t forget to add – she was on a meth binge when this all happened.
After fleeing, she eventually stopped the car, got out and asked someone to call the cops. Then she stole another car and drove to a hospital 75 miles away to get treated. That hospital airlifted her to another hospital. In Albuquerque. 
She was arrested the next day. She was convicted of fleeing and some other charges. She eventually sued for excessive force for being shot in the back.
Initially, the case was dismissed in the District Court because the District Court said that Torres was not “seized” for the purposes of the 4th Amendment since she “did not stop or otherwise submit to the officers’ authority” when she was shot. So if no seizure took place, she had no grounds for a lawsuit. She appealed the District Court’s decision to the 10th Circuit Court of Appeals. They agreed with the District Court – “Didn’t stop? Then no seizure occurred.” She appealed to SCOTUS.
Her argument was essentially that a seizure took place when the Troopers shot her, whether she stopped or not.
And SCOTUS agreed with her, stating “A seizure requires the use of force with intent to restrain.” It doesn’t require the submission of the suspect or the application of force. Frankly, this is nothing new. SCOTUS has made similar rulings before. 30 years ago, in California v Hodari D. Ironically enough, that also included 2 plainclothes Officers, but revolved around whether a “show of authority” equaled a seizure. And SCOTUS said it did not. In Hodari D., SCOTUS clearly told us, “To constitute a seizure of the person, just as to constitute an arrest — the quintessential “seizure of the person” under Fourth Amendment jurisprudence — there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s “show of authority” to restrain the subject’s liberty.” They go on to say “To constitute an arrest, however — the quintessential “seizure of the person” under our Fourth Amendment jurisprudence — the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient.”
And that’s not all. SCOTUS precedent on this goes back to 1862 in Whitehead v Keyes – “an officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him“.
The last paragraph of the majority opinion in Torres is the most important part of this decision (I think) – “We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement.”
So, no. The sky is not falling. This case is going back to the beginning so the lower courts or a jury can now decide whether or not the force used was reasonable or not. Any other decision from SCOTUS would mean that someone who was clearly being subjected to unreasonable force (and we all know it happens sometimes – ever heard of Abner Louima?) would have no recourse but to sit there and take it instead of trying to get away if they wanted to be able to sue at a later date. I don’t think that should be that case.
Here’s a final thought – a lawsuit about a decision you made during a use of force should not have to hinge on whether or not the suspect submits to the force or not. If it does, you have bigger problems.
Stay safe.