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Is an Unsuccessful Use of Police Force a "Seizure" Under the Fourth Amendment?

Posted by Joseph D. Lento | Feb 21, 2020 | 0 Comments

Even though the Fourth Amendment was ratified in 1792, courts in the U.S. are still debating over what it really means. One of the trickier aspects is what constitutes a “seizure.” The definition matters because the Amendment prohibits seizures that are “unreasonable.” If police conduct does not amount to a “seizure,” then, it cannot be outlawed by the Fourth Amendment.

A case currently before the Supreme Court of the United States highlights some of the trickier aspects of the debate.

Torres v. Madrid and What It Means to be “Seized”

The case is Torres v. Madrid. The facts of the case are surprisingly simple: Under the impression that she was being carjacked, a suspect tried driving away. The “carjackers,” though, were police officers and they shot at the vehicle as she tried to flee the scene. Two bullets hit the driver and she crashed the car, but she still managed to get away and drive 75 miles in another stolen vehicle.

The big question that the Supreme Court has to answer: Was the driver “seized” under the Fourth Amendment when the use of force was unsuccessful in stopping her escape?

In her case, it matters because she was filing a civil rights lawsuit against the police for using excessive force. Excessive force, though, requires a seizure under the Fourth Amendment.

Why the Appellate Court Said It Wasn't a Seizure

The driver's lawsuit against the police lost at the trial level and she appealed. The federal appellate court affirmed the decision.

According to the appellate court, there could not have been a seizure for one simple reason: She still managed to get away. Seizures require a restraint on someone's freedom of movement. If a suspect gets away, they could not have been seized.

The Disturbing Results of Such a Decision

It is not difficult to see the practical, real-life difficulties of such a resolution in Torres.

First, police who shoot a suspect – no matter how devious and unlawful that shooting was – can avoid legal responsibility for their actions by simply letting the suspect leave. In the end, it is up to the police to initiate the seizure. If they want to let the suspect get away, they can.

Second, the decision leaves open the issue of how far the suspect has to get, after being shot. Do they have to get all 75 miles away in order to evade a seizure? Or do they only need to go a few feet? If the driver in Torres was shot and killed by the police, but her foot got stuck on the gas pedal and the car went a hundred yards, does that mean she wasn't “seized”?

Philadelphia Criminal Defense Lawyer Joseph D. Lento

The Supreme Court has accepted the case because the appellate courts have split on the issue of whether unsuccessful uses of force – including deadly force – amount to a seizure. The practical repercussions of saying that they cannot be a seizure because the suspect got away are disturbing.

Joseph D. Lento is a criminal defense lawyer in Philadelphia who is watching these developments in the law. Contact him online or call his law office at (215) 535-5353.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience fighting for the futures of his clients in criminal courtrooms in Philadelphia, the Pennsylvania counties, as well as New Jersey. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being.

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