Today, @ACLU and a cross-ideological coalition of @IJ @theCCR @civilrightsorg & @NPAP_NLG filed an amicus brief in Torres v. Madrid. This case will determine whether police are unbound by the Constitution when they use force against people who then resist or flee. /1 
In this case, Roxanne Torres was sitting inside her car in a parking lot in the early morning, when it was still dark, with the doors locked and engine running. Two police officers (who were looking for someone else) approached with guns out and tried to open her locked door. /2
Thinking she was being carjacked, Ms. Torres panicked. She inched the car forward, and the officers began shooting to stop her. She accelerated, and they continued firing as she drove away. They fired a total of 13 shots, two of which hit her in the back. /3
Despite being shot and partially paralyzed in one arm, Ms. Torres kept driving until she crashed her car. She asked a bystander to call the police, but received no response. She then jumped into a nearby unlocked car (yes, she stole it) and drove herself to a hospital. /4
Ms. Torres’s injuries were so bad that she had to be airlifted to another, larger hospital. The next day, officers arrested Ms. Torres at the hospital. /5
Afterward, she sued the officers for excessive force in shooting her. But the district court and the 10th Circuit Court of Appeals held that because she had never stopped for the officers, she had no rights to assert under the Fourth Amendment (despite being shot by them). /6
Stop a moment and let that sink in: The court held that because Torres kept fleeing, there were no 4th Amendment implications whatsoever for shooting her multiple times; therefore, she cannot challenge any of the use of force against her even if it was excessive. /7
In our brief, the ACLU and our co-signatories explain that the 10th Circuit’s rule is flatly inconsistent with a 1991 case called Hodari D. /8
Hodari D. divides police efforts to stop people into two distinct categories: (1) physical force, which is always a seizure under the 4th Am., and (2) "shows of authority" (such as a shouted order to stop) which only count if the person submits to the order and stops. /9
However, the 10th Circuit collapsed that critical distinction, in direct contravention of Hodari D., and misapplied the standard for a mere show of authority to the actual use of lethal force. /10
Physical force is more than mere words. A verbal order does not bruise, break bones, puncture the skin, or inflict pain. Physical force can, and often does. And each blow inflicts the same physical harm and intrusion, whether the person reacts by fleeing or halting. /11
Treating physical force, including lethal force, as a seizure only when it succeeds in achieving control of (or incapacitating or killing) the subject makes little sense. /12
If the Fourth Amendment is to govern meaningfully the state’s application of physical force, each application should be evaluated for its reasonableness, rather than categorically exempting a large swath of dangerous physical encounters from any Fourth Amendment constraints. /13
The 10th Circuit rule—which treats incapacitation as a prerequisite to any inquiry into constitutional reasonableness—is manifestly inadequate where the officer has gone beyond mere words to grab, strike, shock, shoot, or otherwise apply physical force to the person. /14
The 10th Circuit rule also conflicts with basic 4th Am. principles, which regulate both major and minor government intrusions on persons, property, and privacy—from lethal force to lifting a turntable in someone’s house to seizing luggage at an airport. /15
This rule is also inconsistent with the principle of evaluating officer actions based on the facts known at the time, rather than what happens afterward. The 10th Circuit rule hinges 4th Amendment scrutiny of deadly or other physical force solely on the subject’s reaction. /16
To see the arbitrary line-drawing and disturbing gaps in accountability that the 10th Circuit rule creates, one need only look at the cases in the 10th Circuit applying it. /17
In one case, the 10th Circuit held that when a DEA agent grabbed a man on a stopped train, causing both of them to fall, and then scuffled with him down the train's stairwell until both tumbled out of the train, it didn't implicate the 4th Am. because the man kept resisting. /18
In another case, a court held that when a school resource officer Tased an autistic 13-year-old child to stop him from cutting class, the Taser darts and shock didn't implicate the 4th Am. because the child kept running away from the officer. /19
In yet another case, a court held that when an officer deliberately rammed his patrol car into a fleeing bicyclist, the 4th Am. was not implicated because the man then got up from the ground and continued fleeing. /20
More broadly, the 10th Circuit rule ignores the real-world scenarios in which police officers choose to use physical force, and frustrates accountability for serious intrusions on bodily integrity and autonomy. /21
Under the 10th Circuit rule, the 4th Amendment does not preclude the use of lethal force—even if the officer has no probable cause to arrest, indeed, no reason whatsoever for singling out this individual—so long as the person he shoots does not halt after being shot. /22
This creates a dangerous gap in accountability, because it is common for uses of lethal force to wound rather than kill.
For example, of the 66 people whom NYPD officers shot between 2016 and 2018, 23 were killed and 43 survived their injuries. /23
For example, of the 66 people whom NYPD officers shot between 2016 and 2018, 23 were killed and 43 survived their injuries. /23
And where multiple officers fire multiple bullets, it would raise particular factual problems. If this rule had been applied to the shooting of Amadou Diallo, the only shot that would have had to satisfy 4th Am. standards is the one that paralyzed him. /24
This rule would also encourage reckless shooting at moving vehicles—something that already accounts for a significant number of police shootings, including the shooting in this very case. /25
But the most far-reaching impacts would be on less-lethal force, which is far more common than lethal force. For example, for every bullet that NYPD officers fire, they engage in approx. 14 CEW/Taser discharges and more than 105 uses of physical force without a weapon. /26
The 10th Circuit rule would leave Taser use unregulated by the Fourth Amendment unless and until the person stops, is knocked unconscious, or dies as a result of being Tased. /27
This is despite a troubling record of Taser abuse—including in Albuquerque, where the Torres case arose and where, in 2014, the U.S. Dep't of Justice issued a findings letter describing a pattern of officers using excessive force with Tasers. /28 justice.gov/sites/default/…
Finally, we must remember who will suffer most from this rule. A recent study found that police violence is a leading cause of death for African American men, 1 in 1,000 of whom can expect to be killed by police. /29 news.rutgers.edu/news/police-us…
Additionally, flight from the police is common, especially for people who have been racially profiled or do not trust police—a category that includes many people of color, as noted in 2016 by the Massachusetts Supreme Judicial Court. /30
The perception and *reality* that officers can act without accountability is genuine in communities of color—and a rule that renders physical intrusion to the body a non-event under the 4th Amendment is only going to make this worse. /31
For all of these reasons, it is essential for the Supreme Court to reverse the 10th Circuit and hold that when officers use physical force to seize people, their actions are governed by the Fourth Amendment whether or not the individual happens to be fully immobilized. /32
To read the amicus brief in its entirety, follow this link: aclu.org/legal-document… /end
