Monday, August 3, 2020

SCOTUS to decide if suspect who escapes after shot by police can sue

Last month, the Supreme Court refused to hear eight cases on qualified immunity, a doctrine that makes it hard to sue police officers and other officials for misconduct and, as a result, has become a flash point in the nationwide uproar over police brutality, wrote Adam Liptak of the New York Times. That move disappointed critics across the political spectrum who had hoped the court would play a role in helping resolve the broader debate.
But Ms. Torres’s case, which presents an even more fundamental issue, was already on the Supreme Court’s docket. It had been scheduled to be argued in March, but the court postponed it in light of the coronavirus pandemic. It will now be heard in October.
The justices may have wanted to duck the question of police violence. The case from Albuquerque, Torres v. Madrid, No. 19-292, will force them to confront it.Early on a summer morning in Albuquerque in 2014, two state police officers in dark tactical gear arrived at a housing complex to serve an arrest warrant. In the parking lot, they came upon Roxanne Torres, sitting in her car with the engine running.
Ms. Torres was not the woman they were looking for. But the officers, who did not identify themselves, approached her car. Taking them for carjackers, Ms. Torres started to drive away. The officers shot at her 13 times, hitting her twice, but she managed to flee. 
Ms. Torres sued the officers who shot her, Richard Williamson and Janice Madrid, saying they had used excessive force in violation of her Fourth Amendment rights. The amendment bars unreasonable searches and seizures, and the courts have long treated the use of excessive force by the police as a seizure.
Had the officers managed to stop Ms. Torres, there would be no question that she could sue. She might not win, as courts would then consider whether the seizure was reasonable and whether the suit was blocked by qualified immunity. But her suit would not have been shut down from the start.
The question for the justices is whether it should matter that Ms. Torres managed to escape. The United States Court of Appeals for the 10th Circuit, in Denver, ruled that it did. “A suspect’s continued flight after being shot by police,” the court said, “negates a Fourth Amendment excessive-force claim.”
That is hard to square with a statement in a 1991 Supreme Court decision, which said that “the word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.”
Precisely what happened on the morning of July 15, 2014, is contested, but there is no dispute that the officers shot an unarmed woman as she tried to drive away. The officers say they feared that Ms. Torres would run them over.
Ms. Torres soon lost control of her car, stopped in a parking lot and asked a bystander to call the police. Receiving no response, she stole a car that had been left running and drove 75 miles to a hospital in Grants, N.M.
She was airlifted to a hospital in Albuquerque, where she was arrested. She pleaded no contest to charges of fleeing from a police officer, assaulting a police officer and stealing a car.
Even the Trump administration says Ms. Torres was entitled to sue. “A subject’s escape will render the seizure fleeting,” Solicitor General Noel J. Francisco wrote in a friend-of-the-court brief, “but will not negate the seizure entirely.” The brief went on to say that Ms. Torres may well lose her case, but on other grounds.
The NAACP Legal Defense and Educational Fund, in a brief supporting Ms. Torres, urged the justices to take account of the history of police violence.
“From the very inception of modern American law enforcement, weapons — and firearms specifically — have been deployed as a means of policing and oppressing African-American communities,” the brief said. “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.”
Even if Ms. Torres wins at the Supreme Court, she will have to overcome the doctrine of qualified immunity to prevail in the lower courts. Under that doctrine, officials may be sued for violations of constitutional rights only if the right at issue was clearly established at the time of the conduct in question.
The Supreme Court has used an exquisitely narrow definition of what counts as “clearly established.” Instead of looking to general principles, it requires the plaintiff to do something very difficult in most cases: to identify a decision that concerned nearly identical factual circumstances.
It will not be easy for Ms. Torres to find, for instance, an earlier decision based on circumstances very like her own.
Both Justices Clarence Thomas and Sonia Sotomayor, probably the court’s most conservative and liberal members, have criticized qualified immunity. Justice Thomas wrote that it was created out of thin air. Justice Sotomayor wrote that it had created an impenetrable legal barrier protecting police officers.
The court’s approach, Justice Sotomayor wrote in a 2018 dissent, “sends an alarming signal to law enforcement officers and the public.”
“It tells officers that they can shoot first and think later,” she wrote, “and it tells the public that palpably unreasonable conduct will go unpunished.”
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