In 1985, the Supreme Court decided that a police officer's use of a level of force that the Court deemed excessive--despite being authorized by state law and consistent with a rule going back to the common law and widely adopted by the states--was an "unreasonable seizure" in violation of the Fourth Amendment. The case was Tennessee v. Garner, 471 U.S. 1. Under that case and its progeny, before a federal court can get into the question of how much force is "reasonable" it must first find a "seizure."
In a nutshell, a person is seized if either (1) he is physically stopped by the police action, or (2) he stops in obedience to the police show of authority. CJLF last briefed this issue in the Eighth Circuit case of Johnson v. Ferguson. See our brief and the post on the decision.
Yesterday, the Supreme Court took up a case presenting this issue, Torres v. Madrid, No. 19-292.
New Mexico State Police Officers Janice Madrid and Richard Williamson went to an Albuquerque apartment complex with a warrant to arrest a woman there. Two people were standing in front of the apartment, so the officers went to talk to them to see if one was the subject of the warrant. They were wearing vests identifying them as police. One of the people ran into the apartment in question. The other, plaintiff Roxanne Torres, got in a SUV and started the engine. Torres claims that she did not know they were police officers, not because they were not plainly enough identified but because Torres was "tripping out" on a meth binge.
Torres drove her SUV at Officer Madrid, and both officers fired. Torres was wounded but not badly enough to stop her. After crashing the SUV, she stole another car and drove it 75 miles to Grants, where she went to a hospital and gave a phony name.
Was the firing of guns at Torres, unsuccessful at stopping her flight, a "seizure"? It would seem to be more of an attempted seizure. The main problem is a comment in the opinion in California v. Hodari D., 499 U.S. 621 (1991), that was not really necessary to the decision of the case, obiter dictum in lawyer-speak. Hodari D. was not an excessive force case. The question there was whether Hodari had been arrested at the time he tossed away the cocaine while running away, before the application of any force at all. Unsuccessful application of force was not involved in the case, but nonetheless the opinion says, "The word 'seizure' readily
bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful."
bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful."
Should this dictum be applied in the different context of an excessive force claim to expand the reach of the dubious Garner rule? Stay tuned.
A second crime-related case taken up yesterday, Pereida v. Barr, No. 19-438, involves the classification of state convictions for the purpose of federal immigration law.
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