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LU Ref# CAI00009
April 18, 2021
Author Ref. No: Vol. 26 No. 5
LU Ref# CAI00009
April 18, 2021
Author Ref. No:   Vol. 26 No. 5

Robert Phillips
Deputy District Attorney (Retired)

“When you do squats, are your knees supposed to sound like a goat chewing on an aluminum can stuffed with celery?”
Shooting a Fleeing Suspect as a Fourth Amendment Seizure
COURT CASE REFERENCE: Torres v. Madrid (Mar. 25, 2021) __ U.S. __ [__ S.Ct. __; __ L.Ed.2nd __; 2021 U.S. LEXIS 1611]

The application of physical force by a police officer to the body of a person with the intent to restrain her constitutes a Fourth Amendment seizure, even if the person does not submit and is not subdued.  This includes the situation where, despite a police officer’s use of force by shooting and wounding the person, she escapes.
On July 15, 2014, four New Mexico State Police Officers, including Officers Janice Madrid and Richard Williamson, went to an apartment complex in Albuquerque to execute an arrest warrant for a specific woman.  Instead, they came across two other people standing near a car in the parking lot.  As the officers approached them, one of them walked away while the other—plaintiff Roxanne Torres in this lawsuit—got into a car and prepared to drive away.  According to plaintiff’s version of the facts, she didn’t notice the officers until one of them tried to open the door to her car.  Despite the officers wearing tactical vests identifying themselves as police officers, plaintiff claimed that she only saw their guns.  The fact that—as she later admitted—she was “tripping out bad” on methamphetamine, might have had something to do with her alleged confusion.  Thinking they were carjackers trying to steal her car, and later claiming that none of the apparent “car jackers” were in her way, she “hit the gas” in an attempt to escape.  After unsuccessfully ordering her to stop, Officers Madrid and Williamson (who later testified that they feared they were about to be struck by plaintiff’s car) opened fire on her fleeing car, striking her twice (out of thirteen rounds fired) in the back and temporarily paralyzing her left arm.  Steering one-handed, she accelerated through the fusillade of bullets, past the officers, over a curb, across some landscaping, and into the street, eventually colliding with another vehicle.  She made it to another parking lot a short distance away where she claims to have reported to a bystander that she was the victim of an attempted carjacking.  By coincidence, someone had left a Kia Soul in that parking lot with the engine running.  Seizing the opportunity, plaintiff stole the Kia and drove to a hospital in Grants, New Mexico, some 75 miles away.  As noted by the Court, that was the good news, at least for her.  The bad news was that the hospital airlifted her back to another hospital in Albuquerque where, the next day, she was arrested by the police.  Charged in state court, plaintiff plead “no contest” to an assortment of charges.  Two years later, she filed a lawsuit in federal court pursuant to 42 U.S.C. § 1983 (which provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law), alleging the use of unreasonable excessive force in attempting to arrest her; a violation of her Fourth Amendment rights.  The federal district (i.e., trial) court granted summary judgment to the officers (thus, dismissing the lawsuit) and the 10th Circuit Court of Appeals affirmed (Torres v. Madrid (10th Cir. 2019) 769 Fed.Appx. 654.) on the ground that “a suspect’s continued flight after being shot by police officers negates a Fourth Amendment excessive-force claim.”  The reasoning behind this decision is case law precedent (e.g., see Brooks v. Gaenzle (10th Cir. 2010) 614 F. 3rd 1213, 1223.) holding that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect.  In other words, a “Fourth Amendment ‘seizure’ occurs only when the government obtains ‘physical control’ over a person or object.”  The plaintiff appealed to the U.S. Supreme Court which granted certiorari.