If You are Fleeing and the Police Shoot You but You don't Stop, have You Been Seized?

3/30/2021
by: Don Samuel

When the police chase a suspect, this, alone, does not amount to a seizure. In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991), the Supreme Court held that a mere show of authority does not amount to a seizure. The police were patrolling a high-crime area. Several youths fled immediately upon seeing the officers. The officers pursued the youths and after observing one youth throw down a plastic bag, an officer tackled him. The Supreme Court held that the initial pursuit of the youths did not amount to a seizure. The mere show of authority, the Court held, is not tantamount to a seizure absent some actual physical force being applied and absent compliance with an order to stop.

This issue returned to the Supreme Court in Torres v. Madrid, — S. Ct. — (2021), decided on March 25, 2021. Torres is a civil § 1983 case in which the plaintiff was parked in her car in a parking lot. Police officers approached the car but did not identify themselves. The plaintiff sped off, fearful that she was being carjacked. The police shot at the car, wounding the plaintiff twice. She continued to drive to a hospital. She sued the police for the improper Fourth Amendment seizure. But was she seized? Is the Fourth Amendment implicated when the police do not put their hands on the subject and do not actually detain the subject? Unlike HodariD., the police did more than simply command her to stop; they shot her. But like Hodari D., she did not stop, she fled. The Fourth Amendment requires that all searches and seizures must be reasonable. The oral argument revealed the Justice’s concern with the semantics of concluding that shooting somebody is what the Fourth Amendment authors had in mind when they used the term “seize.” Justice Alito questioned whether even contemporary language supports the notion that hitting somebody amounts to a seizure: If a baseball pitcher intentionally “beans” a batter, would that be described as a “seizure?” (Oral argument, page 11). Justice Thomas asked, what if the police throw a snowball at a fleeing subject? (Oral argument, page 8). Is that a seizure?

In a civil § 1983 case, this is important, because if shooting somebody who continues to flee is not a seizure, then the fleeing person cannot sue the police for violating the Fourth Amendment’s guarantee against unreasonable seizures (the victim could still sue for civil assault, or battery, but not a federal constitutional violation). In criminal cases, the issue is somewhat less consequential, because if the person flees, what is the consequence in a criminal case? What is the fruit of the poisonous tree, assuming the shooting was an unlawful seizure? If the suspect continues to flee and escapes, there is no evidence to suppress. If the defendant continues to flee and an hour later, as the police are closing in, the suspect throws a bag of drugs on the ground, is that the “fruit” of the unlawful shooting? If the suspect is captured twenty minutes after being shot and wounded and when apprehended the suspect confesses to a crime, is that confession the fruit of the unreasonable seizure (shooting)?

Putting aside, for now, the consequence of the Torres holding, the Court held that the shooting in Torres was, indeed, a Fourth Amendment seizure. Here are the quick take-aways.

1. 1. The majority opinion, written by Chief Justice Roberts summed it up this way: “An arrest requires either physical force or where that is absent, submission to the assertion of authority.”
   2. The “force” must be accompanied by an intention (objectively considered) to restrain. Thus, a “tap on the shoulder” is the “force” that constitutes a seizure.
   3. The Court did not decide whether the holding applies to the use of pepper spray, flash-bang grenades and lasers.
   4. The suspect’s subjective beliefs are not relevant. In other words, the suspect’s belief that he or she has been detained is not what counts: what matters is whether the circumstances would reasonably be construed (objectively) as restraint.
   5. The “seizure” which occurs by being shot – assuming the suspect continues to flee – is not continuing. (Thus the problem of determining in a criminal case, “What is the fuit of the poisonous tree?”)
   6. Justice Alito, Justice Thomas and Justice Gorsuch dissented. If the suspect does not submit, the suspect has not been seized. Period.