Jurisprudence

The Supreme Court Closes a Police Shooting Loophole

Justice Elena Kagan laughs while Chief Justice John Roberts smiles and Justices Neil Gorsuch and Brett Kavanaugh grin at someone or something in the distance.
Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch, and Brett Kavanaugh. Roberts and Gorsuch feuded over police shootings and royal scandals on Thursday. Pool/Getty Images

In 2014, two New Mexico police officers fired 13 shots at Roxanne Torres as she tried to drive away from them. Two bullets hit her in the back, though they didn’t stop her; Torres kept driving, eventually reaching a hospital. The Supreme Court has long held shooting a fleeing suspect counts as a “seizure” of the person under the Fourth Amendment. So Torres sued—but a federal appeals court threw out her case, holding that the officers couldn’t have “seized” her because she still fled the scene. She appealed, asking the Supreme Court: Does the victim of a police shooting really lack constitutional recourse if she happens to be lucky enough to escape?

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On Thursday, the Supreme Court answered this question with a resounding “no.” Chief Justice John Roberts’ majority opinion in Torres v. Madrid closes an alarming loophole that lower courts had carved into the Constitution, clarifying that the Fourth Amendment prohibits “unreasonable” police shootings even if a wounded suspect still flees the scene. The 5–3 decision won’t stop the epidemic of police shootings in the United States, where law enforcement kills civilians at exponentially higher rates than in peer nations. But it will give victims and their families a better shot at winning some semblance of justice in the federal courts.

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Torres’ case illustrates how trigger-happy officers can transform police-civilian encounters into catastrophes. She had just dropped off a friend at her apartment complex when two officers approached her car. They had a warrant for a resident of the complex, and though they recognized that Torres wasn’t the suspect, they decided to approach her anyway. The officers tried and failed to open her locked car door. Torres, who was experiencing severe methamphetamine withdrawal, saw the officers’ guns and, she claimed, thought the officers were carjackers. So, she sped off, prompting the officers to spray her vehicle with bullets, temporarily paralyzing Torres’ arm.

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The Fourth Amendment prohibits the “seizure” of persons, and in 1991, the Supreme Court ruled that police “seize” an individual under the Fourth Amendment when they shoot—and successfully halt—a fleeing suspect. But is it still a seizure if the suspect evades capture? “The answer is yes,” Roberts wrote on Thursday. “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.”

To reach that conclusion, Roberts canvassed both precedent and history, though he noted that the Supreme Court “largely covered this ground” (and answered this question) in a 1991 decision. In that case, the court looked to the common law—legal practice in England and the American colonies before the founding—to see what qualified as an “arrest,” the “quintessential seizure.” The court held that the common law treated “the mere grasping or application of physical force with lawful authority” as an arrest even when the suspect escapes. As Roberts put it, “an officer’s application of physical force to the body of a person” for the purpose of an arrest constitutes a Fourth Amendment “seizure.” Thus, in this case, “the officers seized Torres for the instant that the bullets struck her.” She can therefore sue them in federal court for violating her constitutional rights.

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This holding infuriated Justice Neil Gorsuch, who penned an irritable dissent joined by Justices Clarence Thomas and Samuel Alito. (Roberts’ majority opinion was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh; Amy Coney Barrett did not participate because she hadn’t joined the court when it heard arguments in October.) Gorsuch accused Roberts of distorting history to locate his desired result. “We have no business wandering about and randomly grabbing volumes off the shelf, plucking out passages we like, scratching out bits we don’t, all before pasting our own new pastiche into the U. S. Reports,” he huffed. (This activity is actually Gorsuch’s favorite pastime.)

Gorsuch’s dissent is a slog, especially in comparison to Roberts’ concise, witty majority opinion. Both justices dueled over the meaning of obscure cases reaching back to the early 1600s. The highlight is a royal scandal that obviously delighted Roberts in which the “serjeants-at-mace” arrested Isabel Holcroft, Countess of Rutland, by “touching her body” with his mace. (An Isabel Holcroft Netflix series seems all but inevitable.)

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To the chief justice, these cases illustrate a “mere-touch” rule: When officers touch a suspect—with their hands, a mace, or a bullet—they have committed an arrest, and, by extension, a Fourth Amendment seizure. To Gorsuch, the cases prove nothing, because they do not involve “touchings by weapon” (though, as Roberts points out, police did not regularly carry guns “until the latter half of the 19th century.”) Gorsuch also complained that many of the chief justice’s cases involved bailiffs hauling debtors off to debtors prison (though he does not explain why this context should make any difference).

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It is surprising to see Gorsuch interpret an arguably ambiguous historical record against Fourth Amendment protection. The justice has a libertarian streak with regard to criminal justice, yet here, he took an uncompromising stance in favor of police power. On the other hand, Roberts’ vote is not surprising given his tendency to safeguard “personal security,” as he put it in Torres, against government invasion. What’s unexpected is that Kavanaugh, who often takes a law-and-order view, cast the decisive vote in favor of greater Fourth Amendment rights. Gorsuch accused the justices in the majority of relying on “penumbras” like “privacy” to “devise whatever rules” serve the “essence” of the amendment. (This allusion to SCOTUS’s famous contraception decision is the favored insult of conservative judges who accuse their colleagues of judicial activism.) But the simpler explanation is that Kavanaugh, like Roberts, viewed the historical record in a less jaundiced light than Gorsuch, and concluded that it required a ruling in Torres’ favor.

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That doesn’t mean, however, that Torres will actually win in the end. The majority didn’t hold that this particular “seizure” was unreasonable (and thus unconstitutional); that’s now a question for the lower courts. And even if the officer acted unreasonably, the lower courts will likely grant them qualified immunity, which shields officers from liability unless they violate rights that were “clearly established.”

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Torres probably won’t have a huge effect on American policing given the relatively small number of cases with similar facts. Cardozo Law professor Alexander A. Reinert told me on Thursday that the case was, in short, a bullet dodged: A decision against Torres would’ve had “more significant impact” by diminishing litigants’ ability “to seek accountability for excessive uses of force.” Still, from this Supreme Court, any decision that averts catastrophe is worth celebrating. And while Roberts’ opinion won’t end unjustified police shootings, it is the rare ruling that gives courts more power to hold reckless cops accountable.

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