Even with the uncertainty and acrimony surrounding the nomination of a new Supreme Court justice, one thing is certain: the first Monday in October is upon us, and with it the 2020 term of the Supreme Court. Below we begin a survey of cert grants.
In Torres v. Madrid, the question is this: what qualifies as a seizure under the Fourth Amendment? To resolve an entrenched circuit split, the Court granted cert to determine whether an unsuccessful attempt to use physical force is a seizure.
The question seems somewhat anodyne, but the facts are not. The New Mexico State police went to arrest the plaintiff as she got into her car early one morning. Not realizing it was the police, she believed she was the victim of a carjacking and tried to escape. Police fired some 13 shots as she drove away, striking her twice in her back. Police claimed she was driving toward them, placing them in danger, but trajectory analysis showed all shots were fired from the sides or at the rear of the vehicles. She managed to drive herself to the hospital, where she was later charged and placed under arrest. She pleaded no contest to three felonies, and then sued police for use of excessive force.
The lower court dismissed, granting qualified immunity to the police, and the Tenth Circuit affirmed. Specifically, the circuit court found that “a suspect’s continued flight after being shot by police negates a Fourth Amendment claim.” In other words, because she did not voluntarily stop for carjackers or because the police did not completely incapacitate her, law enforcement escapes any liability for shooting her in the back.
Even if Ms. Torres prevails on this seizure issue, she will still have to prove that police conduct violated “clearly established” law at the time of the conduct in 2014 to overcome qualified immunity that protects police from the consequences of their misconduct. With the increasingly loud calls for qualified immunity reform, it will be interesting to see whether the court allows qualified immunity to continue. Justice Sotomayor said in Kisela v. Hughes that qualified immunity “tells officers that they can shoot first and think later,” and "it tells the public that palpably unreasonable conduct will go unpunished.” In this case, law enforcement amici briefs complain about unduly chilling police conduct. The NAACP LDF brief counters, “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.”
The case, originally set March 2020, will be argued October 14, 2020.