• State Officers’ Civil Liability under 42 U.S.C. § 1983
• An Arrest as a Fourth Amendment Seizure of the Person
• Seizure of a Person Through the Use of Force
• Physical Force Used Against an Escapee with the Intent to Restrain

The application of physical force by a police officer to the body of a person with the intent to restrain her constitutes a Fourth Amendment seizure, even if the person does not submit and is not subdued.  This includes the situation where, despite a police officer’s use of force by shooting and wounding the person, she escapes.

On July 15, 2014, four New Mexico State Police Officers, including Officers Janice Madrid and Richard Williamson, went to an apartment complex in Albuquerque to execute an arrest warrant for a specific woman.  Instead, they came across two other people standing near a car in the parking lot.  As the officers approached them, one of them walked away while the other—plaintiff Roxanne Torres in this lawsuit—got into a car and prepared to drive away.  According to plaintiff’s version of the facts, she didn’t notice the officers until one of them tried to open the door to her car.  Despite the officers wearing tactical vests identifying themselves as police officers, plaintiff claimed that she only saw their guns.  The fact that—as she later admitted—she was “tripping out bad” on methamphetamine, might have had something to do with her alleged confusion.  Thinking they were carjackers trying to steal her car, and later claiming that none of the apparent “car jackers” were in her way, she “hit the gas” in an attempt to escape.  After unsuccessfully ordering her to stop, Officers Madrid and Williamson (who later testified that they feared they were about to be struck by plaintiff’s car) opened fire on her fleeing car, striking her twice (out of thirteen rounds fired) in the back and temporarily paralyzing her left arm.  Steering one-handed, she accelerated through the fusillade of bullets, past the officers, over a curb, across some landscaping, and into the street, eventually colliding with another vehicle.  She made it to another parking lot a short distance away where she claims to have reported to a bystander that she was the victim of an attempted carjacking.  By coincidence, someone had left a Kia Soul in that parking lot with the engine running.  Seizing the opportunity, plaintiff stole the Kia and drove to a hospital in Grants, New Mexico, some 75 miles away.  As noted by the Court, that was the good news, at least for her.  The bad news was that the hospital airlifted her back to another hospital in Albuquerque where, the next day, she was arrested by the police.  Charged in state court, plaintiff plead “no contest” to an assortment of charges.  Two years later, she filed a lawsuit in federal court pursuant to 42 U.S.C. § 1983 (which provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law), alleging the use of unreasonable excessive force in attempting to arrest her; a violation of her Fourth Amendment rights.  The federal district (i.e., trial) court granted summary judgment to the officers (thus, dismissing the lawsuit) and the 10th Circuit Court of Appeals affirmed (Torres v. Madrid (10th Cir. 2019) 769 Fed.Appx. 654.) on the ground that “a suspect’s continued flight after being shot by police officers negates a Fourth Amendment excessive-force claim.”  The reasoning behind this decision is case law precedent (e.g., see Brooks v. Gaenzle (10th Cir. 2010) 614 F. 3rd 1213, 1223.) 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.  In other words, a “Fourth Amendment ‘seizure’ occurs only when the government obtains ‘physical control’ over a person or object.”  The plaintiff appealed to the U.S. Supreme Court which granted certiorari.

The United State Supreme Court, in a split 6-to-3 decision, reversed.  The issue on appeal was whether plaintiff was “seized” when she was shot by the New Mexico officers, even though she eluded capture at the time and wasn’t taken into physical custody until the next day.  This is important because it is a rule of law that unless “seized,” she has no cause of action against the officers for an unreasonable seizure through their use of force, as the federal 10th Circuit Court of Appeal had ruled in this case.  The law on this issue is complicated.  It is clear that when arrested, a person is seized for Fourth Amendment purposes.  Quoting the landmark case decision of California v. Hodari D. (1991) 499 U. S. 621, at p. 626, it was noted that “[a]n arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority.”  The majority decision here interpreted Hodari D. to articulate two pertinent principles. “First, common law arrests are Fourth Amendment seizures. And second, the common law considered the application of force to the body of a person with intent to restrain to be an arrest, no matter whether the arrestee escaped.”  Still quoting from, and interpreting Hodari D., the Court noted that “[t]he 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.”  Taking a leisurely trip through the early Common Law as it developed throughout history, while tossing in a couple of dictionary definitions, the Court expressed several conclusions here.  First, when a person is arrested, he (or she) has been “seized.”  “(T)he arrest of a person is quintessentially a seizure.” (Quoting Payton v. New York (1980) 445 U. S. 573, 585.)  Secondly, however, taking it a step further; “a corporal touch is sufficient to constitute an arrest, even though the defendant do(es) not submit.” (Referred to as the “mere touch rule.”)  Noting that in this case, the officers never physically touched the plaintiff, the Court had no problem (despite the lack of any case law precedent) extending this theory to a touching accomplished by shooting her; i.e., “an application of force from a distance.”  Thus, when plaintiff was shot by Officers Madrid and Williamson, she was “seized” for Fourth Amendment purposes despite her subsequent escape (noting the difference between seizures by force and seizures by control).  Because she had been seized through the use of force, plaintiff has the statutory right (i.e., 42 U.S.C. § 1983) to challenge the reasonableness of the force used “by persons acting under color of state law.”   The Court placed a couple of restrictions on this new theory.  First, “(a) seizure requires the use of force with intent to restrain.  Accidental force will not qualify.”  Secondly, it was held that “only force used to apprehend” qualifies, and not “force intentionally applied for some other purpose.”  The Court declined to decide whether force applied by some means other than shooting the suspect is to be included, such as in the use of “pepper spray, flash-bang grenades, lasers, and more.”  It was also noted that the test is whether an officer’s challenged conduct “objectively” manifests an intent to restrain, finding neither the officer’s subjective intentions, nor the suspect’s subjective perceptions, to be relevant.  And lastly, the Court held that the “intent to restrain, a seizure by force—absent submission—lasts only as long as the application of the force.”  This new theory, in other words, does not recognize any “continuing arrest during the period of fugitivity.”  Taking into account all these rules, the Court’s majority here determined that when the officers shot plaintiff, they applied physical force to her body while objectively manifesting an intent to restrain her from driving away. Therefore, the officers seized plaintiff in the instant the bullets struck her, thus kicking in the protections of the Fourth Amendment and allowing for a 42 U.S.C § 1983 lawsuit.  Thus, the granting of the civil defendants’ summary judgment motion was error.

I sometimes get the feeling that appellate courts in general often have a preferred result in mind from the very start.  A court will then play word games with us, juggling what they consider to be the relevant case law (“tiptoeing through the tulips,” if you will), all in a sometimes strained attempt to reach, and justify, the desired result.  The longer the printed discussion, the more likely this is true.  The majority decision here is some 21 pages long.  What does that tell you   And then the dissent is another 37 pages (not counting the footnotes) as three justices argue that the majority decision is “as mistaken as it is novel.”  42 U.S.C § 1983 allows a person to sue a law enforcment officer in federal court only when the officer is alleged to have violated the plaintiff’s constitutional rights under color of state law.  The Court was faced here with the problem of providing Roxanne Torres with some means of testing the constitutionality of the force used by the officers.  Because the Fourth Amendment only protects us from unreasonable searches and seizures, the Court couldn’t do that unless it could be argued that shooting her was in fact a “seizure,” however brief.  Had Officers Madrid and Williamson shot Torres in an off-duty barroom brawl, for instance, 42 U.S.C. § 1983 would not have applied, leaving Torres to whatever redress state law might provide.  But shooting her in an attempt to arrest (i.e., “seize”) her as a function of their official duties as state cops, kicks in the protections of the Fourth Amendment as well as 42 U.S.C. § 1983.  That’s the result the Supreme Court wanted to reach. Thus, this long, complicated, and somewhat strained decision.