We have been watching the following four street-law enforcement cases currently before the United States Supreme Court: 

(1) Caniglia v. Strom, Question: Whether the “community caretaking” exception to the search warrant requirement extends to the home;

 (2) United States v. Cooley, Question: Whether evidence should have been suppressed when an Indian tribe police officer detained and searched a non-Indian on a public highway within a reservation; 

(3) Lange v. California, Question: Whether the pursuit of a person who has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant; and, 

(4) Torres v. Madrid, Question: Whether an unsuccessful attempt to detain a suspect by use of physical force is still a “seizure” under the Fourth Amendment.

Torres v. Madrid

The Big Court recently decided the Torres case and changed many decades of legal understanding about when a Fourth Amendment “seizure” of a person occurs.  In a 5-3 decision, the majority of justices said that law enforcement need not have taken a suspect into physical custody for there to have been a “seizure” and the protections of the Fourth Amendment to have been triggered.  

In 2014 in Albuquerque, New Mexico, state officers attempted to contact Torres in a parking lot thinking she was the target of an arrest warrant.  Torres, who later admitted to having been on methamphetamine at the time, entered her car and drove toward the officers.  “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.”  Torres did not stop, collided with another car, stole a second car, drove 75 miles and was eventually treated at a hospital and arrested the next day.  She later pleaded no contest to assault on a police officer, aggravated fleeing from an officer, and the unlawful taking of a motor vehicle.

More than two years later, Torres sued the officers under the federal civil rights statute, 42 U.S.C. 1983, for deprivation of her Fourth Amendment rights alleging the officers used excessive force in an unreasonable seizure.  The federal trial court, and later the 10th Circuit Court of Appeals, held for the officers holding 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 physical control over the suspect.  Since Torres drove away, the lower courts said that there was no seizure.  Without a seizure, the Fourth Amendment was never triggered.  (Note that Torres may well have had state tort law remedies but she had failed to file a state court case before the expiration of New Mexico’s statute of limitations; however, there is no statute of limitations in the text of § 1983).

The Big Court’s majority reversed, holding 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.”  The case was sent back to the trial court.  However, that does not necessarily mean any officer liability since the majority did say that “we leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.”  So, the case holding was somewhat narrow and only re-defined when a “seizure” occurs for Fourth Amendment purposes.

The dissenting justices: Gorsuch, Thomas and Alito noted that “[u]ntil today, a Fourth Amendment ‘seizure’ has required taking possession of someone or something.  To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery.  In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. . . . Neither the Constitution nor common sense can sustain it.”

The other three cases, Caniglia, Cooley, and Lange, remain pending and should be decided before summer.