SCOTUS Reaffirms Common Law of Seizures in Torres v. Madrid

Yesterday, the Supreme Court ruled 5-3 in Torres v. Madrid that when, in 2014, officers shot a woman repeatedly as she drove away from them, that act constituted a “seizure” under the Fourth Amendment. Ms. Torres may now continue her suit for damages against those officers. Chief Justice Roberts asserted a bright-line, relatively broad rule, 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.”

Restore The Fourth previously reported on this case, and filed an amicus brief that argued that the common law at the time of the Founding permitted two kinds of arrest, physical (which do not require a show of submission) and constructive (which do). The arrest in Torres was a plain example of a physical arrest that would have unambiguously been considered a seizure, because a physical attempt was made to detain Torres, and “touching in the most indefinite manner is sufficient” – even if, as in fact happened, she was temporarily able to escape police custody after the seizure occurred.

It appears that Chief Justice Roberts’ opinion paid close attention to our brief, ably put together by RT4 Litigation Working Group Chair Mahesha Subbaraman. Notably, he adopted our reasoning on constructive and physical trespass, and used the 1738 case of Horner v. Battyn in a similar way to describe the evolution of the one from the other.

As a consequence of this decision, the default assumption of lower courts must be that, in this and other contexts where police “use force to apprehend” a person, whether or not that apprehension is successful, a seizure does occur. The Fourth Amendment is a little stronger today, thanks to this ruling, and to Restore The Fourth’s intervention in the case.

Even after seven years, Ms. Torres’s road to obtaining damages is still a long and hard one. Predictably, the local district attorney decided long ago to not file criminal charges against the officers, saying that they had had to make a “split-second decision.” To obtain civil damages, Ms. Torres will still, for example, need to prove that the seizure was “unreasonable”, and that it was so clearly so that the officers are not entitled to qualified immunity..

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Call Your Senators Now: PATRIOT Act Renewal Cloture Vote TODAY

Our freedoms are at risk.

Just last Thursday, the House voted through a renewal of PATRIOT Act surveillance powers with minimal reforms, without allowing amendments, without regular committee process, and with only 60 minutes of debate.

Today, at 5:30pm, Senate Majority Leader Mitch McConnell will hold a vote, hoping to get 60 Senators to agree to close debate on the same Act. But together with our allies in the Senate, he’s under heavy pressure, and he may not get there. Your call now to 202-224-3121 demanding your senators votes NO on cloture may make the difference to a wavering Senator, and will pile the pressure on.

If Sen. McConnell loses this vote, he will have to allow proper amendments and discussion. Please help make this happen.

Below is Restore The Fourth’s statement being circulated to Senators.

“Restore The Fourth strongly opposes cloture on the USA FREEDOM Reauthorization Act. As Reps. Davidson (R-OH) and Lofgren (D-CA) have observed in their letter to the Senate, it was unacceptable for House leaders to have brought this bill up outside of the regular committee process and with no opportunities for amendment. Senator Burr shockingly claimed, on Thursday, on the Senate floor, that President Trump “can do all of this [surveillance], without Congress’s permission;” a horrifying reassertion of the “unitary executive” theory that led to vast NSA and FBI overreach and abuse. Some amendment and some discussion is appropriate before cloture is invoked. Senators have the authority to debate the government’s surveillance powers freely and openly, and to offer such amendments as they see fit. By voting NO on cloture at 5:30pm today, you allow the opportunity for these awesome powers to receive the careful and due consideration that our Founders intended for the Senate to provide.”

Please make a call to 202-224-3121 NOW!

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