Police Seized Woman by Shooting Her, High Court Says

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The Supreme Court ruled 5-3 Thursday that the act of police shooting a woman in the back constitutes a seizure under the Fourth Amendment.

Chief Justice John Roberts wrote the majority opinion, saying: “The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”

The case concerns stems from the 2014 shooting of Roxanne Torres, who says she thought she was being carjacked when New Mexico State Police officers wearing dark tactical vests chased after her. As she fled in a Toyota FJ Cruiser, the officers fired their weapons. Shot twice in the back, Torres still managed to escape. Once at a hospital 75 miles away, however, she wound up being airlifted back to an Albuquerque hospital where officers arrested her the following day.

As the government saw it, because the application of physical force did not directly lead to her restraint, no seizure technically occurred. Torres sought a reversal after the 10th Circuit affirmed dismissal of her case.

“When the bullets entered her back she was seized,” her attorney Kelsi Corkran with Orrick Herrington told the court at virtual oral arguments in October.

The majority backed this argument Thursday. 

“Brief seizures are seizures all the same,” Roberts wrote, explaining that the Framers of the U.S. Constitution chose to use the term “seizure” in the Fourth Amendment because it was broad enough to persons, houses, papers, and effects. Based on context, however, the word can be applied differently to these subjects.

“As applied to a person,” Roberts wrote, “‘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.’ Then, as now, an ordinary user of the English language could remark: ‘She seized the purse-snatcher, but he broke out of her grasp.’”

In Torres’ case, he continued, the officers’ conduct “satisfies the objective test for a seizure, regardless whether Torres comprehended the governmental character of their actions.” 

Writing a harshly worded 26-page dissent, Justice Neil Gorsuch called the majority’s reading of seizure “schizophrenic.”

“A mere touch may be a battery,” Gorsuch wrote, joined by Justices Clarence Thomas and Samuel Alito. “It may even be part of an attempted seizure. But the Fourth Amendment’s text, its history, and our precedent all confirm that “seizing” something doesn’t mean touching it; it means taking possession.”

Gorsuch argued that the Fourth Amendment’s search and seizure clause uses the word “seizures” once in connection with persons, houses, papers, and effects, and that “when a provision uses the same word multiple times, courts must give it the same meaning each time.”

“This court has always recognized that how seizures take place can differ,” Gorsuch said. “Some may take place after a show of authority, others by the application of force, still others after a polite request. But to be a ‘seizure,’ the same result has always been required: An officer must acquire possession.”

Acknowledging the dissent’s qualm, the majority maintained that the nature of a seizure can depend on the nature of the object being seized. 

“A seizure is just the first step in the analysis,” Roberts wrote. “The Fourth Amendment does not forbid all or even most seizures — only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement.”

Furthermore, he emphasized, the law does not forbid all seizures — just unreasonable ones.

“The rule we announce today is narrow,” Roberts wrote. “In addition to the requirement of intent to restrain, a seizure by force — absent submission — lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any ‘continuing arrest during the period of fugitivity.’ The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial.”

The police officers are represented by attorney Mark Daniel Standridge of Jarmie & Roger. He did not return a request for comment Thursday, nor did an attorney for Torres.

Justice Amy Coney Barrett did not take part in the decision as she had not yet been appointed to the bench when the court heard arguments.

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