Shooting to Restrain? That’s a Seizure, Lawyer Tells High Court

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

WASHINGTON (CN) — Fighting to revive an excessive-force suit, an attorney argued Wednesday before the Supreme Court that the police shooting of a woman in the back amounted to a seizure.

“When the bullets entered her back she was seized,” Orrick Herrington attorney Kelsi Corkran said this morning at oral arguments, which continue to be held remotely due to the coronavirus pandemic.

“Physical force intended to restrain is an arrest even if the subject evades capture,” Corkran added.

The shooting happened on July 15, 2014, as New Mexico State Police officers Janice Madrid or Richard Williamson lay in wait outside an Albuquerque apartment complex to serve a warrant on one of its residents.

Two people were standing outside of their target’s apparent, so they approached to see if one was the woman they were looking for. As they did so, one of the individuals ran into an apartment and the other, Roxanne Torres, jumped into a parked Toyota FJ Cruiser and started the engine.

Torres sped off when the officers wearing dark tactical vests tried to open the car door. She later testified that she was being carjacked.

Meanwhile the officers said they thought they were going to be run over so fired their weapons.

“Two of the bullets hit Ms. Torres in the back,” Corkran said, emphasizing that neither officer identified themselves as police officers at the scene.

Torres made it to a hospital where she was treated for her injuries. Though she pleaded no contest to several counts of evading a law enforcement officer and assault on an officer, Torres also brought a civil suit.

She seeks a reversal after the 10th Circuit affirmed dismissal of the case, telling the high court Wednesday that the founders used the term seizure instead of arrest because it encompassed the use of force, and there were no shooting cases at the time the Constitution was penned.

“The founding generation recognized that the infliction of physical force on the body is itself an intrusion regardless of whether the person is able to walk away,” Corkran said.

The U.S. Justice Department is urging the high court to rule for Torres as well, and Assistant to the U.S. Solicitor General Rebecca Taibleson told the justices Wednesday that “the bullet entering the body was the seizure.”

“Under this court’s precedents, the intentional application of restraining physical force to a subject’s body is a seizure, and the seizure lasts as long as the physical force is being applied,” Taibleson said, maintaining Torres was seized, “albeit briefly.”

Representing the officers was Mark Daniel Standridge of Jarmie & Roger, who argued that a seizure occurs when a police officer obtains physical control over a suspect.

“While the officers shot at and hit petitioner, they did not acquire physical control over her,” he said, adding that Torres eluded arrest for “over a full day” afterward.

Chief Justice John Roberts asked Corkran to consider whether it would be considered a seizure if police had intentionally shot the tires of Torres’ car.

“No, it would not because there would be no physical force to her body,” Corkran responded. He also said that it would, however, if they shot at her tires but hit her unintentionally. “Because they have physically impacted her,” Corkran continued.

Roberts next questioned whether “there was a requirement of hampering movement or laying of hands” to the term seizure.

“No, because in that circumstance they are shooting at the car with the intent to restrain the driver,” Corkran said. The lawyer maintained that as long as an officer takes actions in an attempt to restrain a person, if the actions affect the person, they should constitute a seizure.

Opposing this view, Standridge argued that Torres’ ability to get away meant she had not been seized by definition.

“No reasonable person could say that a person who is shot by the police and continues to drive well out of range could be seized under Fourth Amendment,” he said, arguing that the object of the seizure must be taken possession of in order for the word to apply.

Justice Brett Kavanagh then pressed Corkran on the issue of whether seizure under the Fourth Amendment is by definition when there is “a governmental termination of movement.”

Corkran maintained that it was about their intent. 

“Did the officers intend to restrain the driver for the purposes of seizure?” she asked, maintaining that the Fourth Amendment offers protection of bodily integrity. 

Justice Samuel Alito posed a hypothetical for Standridge questioning whether it would be considered a seizure if an officer grabs a person’s shirt, holds on briefly, but ultimately the person breaks free and disappears.

“That person has been seized for a matter of seconds under the control of the officer,” Standridge said.

Alito further clarified that “a seizure does not require the submission of the law enforcement officer; it just requires the person doing the seizure have control of the person for some time.” 

Standridge responded that, for it to be considered a seizure, “the officer acting with intent then acquires that intent.”

But Corkran maintained that the officer did not have to acquire custody of the person for it to be considered a seizure.

“The infliction of physical force on the body is itself an infliction of liberty,” Corkran said. “The alternative definition provides no constitutional protection so long as the person has escaped.”

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