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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Our Platform To Reduce Police Violence

The United States is in the middle of a pandemic of racist police violence that shows no sign of abating. For many police officers, expressing verbal opposition to a police killing, police tactic or police budget, is itself an act of unreasoning aggression no sane person could endorse. So it’s at protests against police violence that you see the most police violence; it’s the very expression of the idea that police should submit themselves to the rule of law, that arouses their lawless fury.

For decades, elected officials from both major parties have treated police and the military like a special class. Congressmembers, councilors, mayors and legislators have approved their budgets and acquisitions without question. Till this year, it has been almost politically unimaginable to treat their requests with the same skepticism afforded to other funding requests. Courts, too, have enshrined enormous deference to police and the military into law, through abusive concepts like “qualified immunity.” Drastic change is necessary to change the culture, not only of the police, but of our political system as a whole.

A restored Fourth Amendment requires that people, their communications and their effects be searched or seized only subject to probable cause of involvement in an actual crime. The actual practice of both police and federal agencies is to over-surveil, over-criminalize, over-seize and over-detain, and the law improperly allows them to escape accountability for these violations.

The Restore The Fourth board hereby endorses the following seven specific measures to reduce police violence:

  1. At the federal level, pass the tri-partisan Ending Qualified Immunity Act, so that people can once more sue the police for violating their rights. At the state level, implement changes like that recently approved in Colorado.
  2. Abolish federal civil asset forfeitures, which enable police to steal people’s cash, vehicles, and even homes with impunity, through passing the FAIR Act. At the state level, pass bills similar to the model legislation from the Institute for Justice.
  3. End no-knock warrants, which are a vector for police violence, at the federal level through passing the Justice for Breonna Taylor Act, and at the state and local level through prohibitions such as that passed in Louisville, KY.
  4. Reduce jail churn by reducing arrests: Police should refrain from arrests for misdemeanor quality-of-life crimes, “resisting arrest”, protest-related trespassing, and crimes associated with being homeless. Rather than setting cash bail, judges should implement pretrial detention only where there has been a finding of dangerousness after a hearing.
  5. Abolish DHS, making its constituent agencies independent again; it was a bad idea from the get-go. Among its constituent agencies, abolish ICE, and revert to a unitary agency for both documented and undocumented immigrants.
  6. Pass surveillance oversight ordinances and facial recognition bans at the local, county and state levels, to restrain the police from deploying surveillance without review and consent by local elected officials.
  7. In relation to coronavirus pandemic enforcement, we believe that governments should involve the police only secondarily and as a last resort, such as if someone assaults or murders a member of the public or public health worker trying to enforce a coronavirus-related restriction, or for education and handing out masks. Drones and robots should not be used for enforcement, and contact tracing apps should be used only under tight constraints.

We thank the volunteers of Restore The Fourth, Critical Resistance, the Cato Institute, and the protesters, activists and scholars engaged with Black Lives Matter, for inspiring us to identify and support these measures. If you’d like to help make this platform a reality, contact Restore The Fourth here.