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Despite Punting This Term, SCOTUS Will Take On Excessive Force In the Fall

By Laura Temme, Esq. | Last updated on

Although the Supreme Court passed on eight qualified immunity cases during its 2019-2020 term, a dispute on the docket for this fall asks a fundamental question on excessive force.

The case began outside an Albuquerque apartment complex on an early summer morning in 2014. Police officers arrived on the scene to carry out an arrest warrant, clad in dark tactical gear. The plaintiff, Roxanne Torres, was standing outside the building near her car.

Torres was not the subject of the arrest warrant, but officers approached her vehicle, presumably to question or I.D. her. When they did not identify themselves, Torres panicked and, thinking they were carjackers, tried to drive away.

Police fired at her vehicle 13 times, hitting her twice. But she still managed to get away.

Circuits Split on Whether Escapees Have Been "Seized"

Courts have long characterized excessive force by police as a "seizure" under the Fourth Amendment. However, Torres's case presents an interesting question:

Has a "seizure" occurred if the person police are trying to detain gets away?

In similar cases, the Eighth, Ninth, and Eleventh Circuits have all held that yes, a person who escapes might still have experienced an unconstitutional seizure. And in 1991, the Supreme Court held that "seizure" means "a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful."

However, last year the Tenth Circuit Court of Appeals affirmed the officer's argument, holding that because Torres was able to get away, no seizure had occurred. The Court of Appeals for the D.C. Circuit has held the same.

If Torres had not escaped, there's little doubt that she would have a claim. Whether she would win is harder to say, given the courts would have to consider whether the force used was reasonable. Plus, there's the doctrine of qualified immunity to contend with.

But, the Supreme Court's review of this case may (finally) lead to some clarification on excessive force and qualified immunity.

The case was initially scheduled for arguments before the Supreme Court in March but was moved to October due to conflicts stemming from the coronavirus pandemic.

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