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Supreme Court Dips Gingerly Into Roiling Police Misconduct Waters

The Supreme Court

The U.S. Supreme Court dipped a toe into the question of police violence on Thursday, ruling that when officers fired 13 shots at a fleeing suspect, their actions were a seizure under the Constitution, entitling the suspect to sue for damages.

The vote was 5-to-3, with conservative Chief Justice John Roberts and Justice Brett Kavanaugh joining the court's three liberals in the majority, and Justice Amy Coney Barrett not participating in the case.

The court's decision came in the case of Roxanne Torres, who sued two New Mexico state police officers for excessive force.

The case began at dawn on July 15, 2014, when the two state police officers went to an Albuquerque apartment complex to execute an arrest warrant for somebody named Kayenta Jackson. Torres was not the target of the warrant. That, both sides agree on. Beyond that, the facts are in dispute.

Torres maintains she was sleeping in her car when the two officers tried to open the car door. Although the officers wore tactical vests marked with police identification, Torres says she saw only their guns, and, mistaking them for carjackers, she sped out of the apartment complex amid a hail of gunshots that struck her twice in the back and temporarily paralyzed her left arm.

Steering with her right arm, she drove to another apartment complex, asked a bystander to report a carjacking, and with her own car now damaged, she then stole a car that was idling nearby and drove 75 miles to Grants, N.M. The hospital there airlifted her back to Albuquerque where she was treated and arrested. She eventually pleaded no contest to three charges — fleeing from a law enforcement officer, assault on a police officer, and unlawfully taking a motor vehicle; Torres was eventually sentenced to 2 1/2 years in prison.

Torres then sued the police officers for illegally seizing her in violation of the Constitution. But the lower courts dismissed the case on grounds that police had never touched her. Torres appealed to the U.S. Supreme Court, contending that when police shoot and wound a person, that is a seizure regardless of whether the person escapes.

The Supreme Court agreed. Writing for the court majority, Chief Justice Roberts said that an unconstitutional seizure of a person can "as readily [be] accomplished by a bullet as a finger." And, he added, "we see no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest."

The focus of the Fourth Amendment "is the "privacy and security" of individuals, not the particular manner of arbitrary invasion by government officials, he wrote. Even brief seizures are still seizures, he noted, and in the Torres case, the officers fired to prevent her driving away.

Roberts added that the court had previously plowed this legal ground in 1991 in a 7-to-2 opinion written by conservative icon, Justice Antonin Scalia.

That didn't seem to impress the three conservative justices in dissent on Thursday. Justice Neil Gorsuch, writing for himself and Justices Clarence Thomas and Samuel Alito, accused the majority of "schizophrenic" reasoning. "We are told that a touch is a seizure even if the suspect never stops or slows down," Gorsuch said. And, he opined, the court's opinion would provide assistance in "only a vanishingly small number of cases."

That may be true, according to Fourth Amendment experts. Law professor Orin Kerr, of the University of California, Berkeley, said he saw the decision as "extremely narrow."

Professor Gabriel "Jack" Chin, of UC Davis, conceded the decision is a "Fourth Amendment tweak" but he said it may well produce some serious consequences. Until now, he observed, many lower courts have routinely thrown out these damage claims at the initial phase of the litigation. But now that will be much harder to do. And that, he said, is likely to generate a new look at police policies by everyone from insurance companies to city councils that are seeking to avoid paying out damage claims.

Jaba Tsitsuashvili, attorney for the Institute for Justice, called the decision a "win for government accountability and our constitutional rights."

"The Court made clear that the Fourth Amendment's protection of our personal security applies whenever police use physical force to restrain a person," he said.

Sherrilyn Ifill, president and counsel of the NAACP Legal Defense Fund, said she sees the decision as a "very positive reaffirmance of Fourth Amendment Rights."

That said, she conceded that Torres, and others like her, will continue to have "a very uphill battle" in seeking to recover damages. That's because under the doctrine of "qualified immunity," police and other public officials are protected from civil suits unless their conduct was clearly contrary to established legal rules.

Indeed, the Supreme Court remanded Torres' case back to the lower courts for just such a determination.

The court's ruling, however, will establish a line for police officers in the future, noted lawyer Ginger Anders, who filed a brief in the Torres case on behalf of Fourth Amendment scholars. The decision resolves a question that has long split the lower courts.

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