by John Whitehead
WASHINGTON, DC — In a 5-3 decision in Torres v. Madrid, the U.S. Supreme Court has ruled that a police shooting, even without an immediate arrest, constitutes a seizure that can be challenged as a violation of the Fourth Amendment’s prohibitions against the use of excessive force during an arrest. The case arose after Roxanne Torres, mistaking officers who approached her car with guns drawn for carjackers, fled from police only to be pursued and shot twice in the back. In filing a joint amicus brief in Torres, attorneys for The Rutherford Institute and the National Association of Criminal Defense Lawyers (NACDL) argued that all uses of unreasonable and excessive force by police merit review under the Fourth Amendment, whether or not the victims of police brutality are arrested or temporarily elude capture.
Affiliate attorneys Jeffrey T. Green and John L. Gibbons of Sidley Austin LLP and Sarah O’Rourke Schrup of the Northwestern Supreme Court Law Clinic assisted in advancing the amicus arguments in Torres.
“We live in an age in which ‘we the people’ are at the mercy of militarized, weaponized, immunized cops who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect,’” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “If you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry—then for all intents and purposes, you’re under arrest from the moment a cop stops you.”
Early in the morning of July 15, 2014, Roxanne Torres dropped a friend off at an apartment complex in Albuquerque, N.M. After parking and exiting her car, Torres reentered and remained in the car with the engine running and the car doors locked. At that same time, four New Mexico State Police officers arrived at the complex intending to arrest a woman who was not related to Torres. Two of the officers approached Torres’s car and, with guns drawn, attempted to open the driver side door. Because the officers wore indistinguishable dark clothing and Torres did not hear what they shouted at her, Torres mistook them for carjackers and attempted to drive away. After the car moved forward mere inches, the police opened fire on Torres and she accelerated away. The officers continued shooting at Torres, firing 13 shots in all, two of which struck Torres in the back, paralyzing her right arm. Torres drove a short distance before she was forced by her injuries to stop. When a bystander refused to call police on her behalf, she found another car and drove it to a hospital, where she was airlifted to another hospital due to the seriousness of her injuries. She was subsequently arrested on charges related to fleeing the police. Torres, in turn, sued the police for using excessive force in violation of the Fourth Amendment’s prohibition on “unreasonable searches and seizures.” However, the trial and appeals courts ruled that because Torres was able to escape after being shot, she had not technically been “seized” by the police. In reversing this ruling, the Supreme Court acknowledged that “[b]rief seizures are seizures all the same. As applied to a person, 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.”
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