The Supreme Court has issued an important opinion this morning in Torres v. Madrid, confirming that

[soothsayer]

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Andrew Crespo
@AndrewMCrespo
·
Mar 25, 2021
The Supreme Court has issued an important opinion this morning in Torres v. Madrid, confirming that when the police shoot someone who is running away, they have "seized" that person under the Fourth Amendment, even if the person is able to keep running.
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Andrew Crespo
@AndrewMCrespo
As I pointed out last year, this seems to me the clearly right answer.

Andrew Crespo
@AndrewMCrespo
In part, yes. But the line between "investigate" and "seize" under the 4th Amendment isn't gray. Lay hands on someone, you need reasonable suspicion (Hodari D.); put them in a van and drive them to a jail, you need probable cause (Dunaway). These are clear lines.

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@AndrewMCrespo
·
Mar 25, 2021
Replying to @AndrewMCrespo
In fact, it was so clear that even the Trump administration's Solicitor General, Noel Francisco, agreed, filing a brief with the Court siding with the person who had been shot.

Andrew Crespo
@AndrewMCrespo
Replying to @RoryLittle
True. Though (and this is a first for me) I'm with SG Francisco on this one. The SG's office argues against criminal suspects in about 94% of cases where it takes a position. But in Torres v. Madrid, even they say it is "clear" that physical force is a seizure under Hodari D.

Andrew Crespo
@AndrewMCrespo
That in itself is pretty striking. As I've reported in an earlier law review article, the SG's office sides with law enforcement in roughly 96% of all criminal cases. http://bit.ly/RegPer


Here, though, as the SG rightly noted in its brief, the answer to the question was essentially settled 20 years ago, in an opinion by Justice Antonin Scalia in which the Court was unanimous in the view that the police seize someone when they initiate physical contact.

Andrew Crespo
@AndrewMCrespo
Today's opinion reaffirms this rule. And rightly so. To hold otherwise would mean that the Fourth Amendment, a major legal constraint on police conduct, simply doesn't apply to a whole swath of police shootings.



Notably, though, today's opinion - unlike the Scalia opinion 20 years ago - is authored by a bare majority of the Court. Chief Justice Roberts authors the opinion of the Court for himself and Justices Breyer, Sotomayor, Kagan, and Kavanaugh.



Andrew Crespo
@AndrewMCrespo
Note also that the majority isn't saying that the constitution prohibited the police shooting in this case. That's not the question. Rather, the question is whether the Fourth Amendment even applies in the first place. The lawfulness of the officers' conduct is still TBD.



Andrew Crespo
@AndrewMCrespo
·
Mar 25, 2021
Replying to @AndrewMCrespo
My view: This shouldn't be close. Existing precedent answers the question. It's a narrow (but important) issue about the 4th Amendment's scope, not liability. And the Trump admin's SG & Justices Scalia, Roberts, and Kavanaugh would all come out against the officers.

Still...5-3

Andrew Crespo
@AndrewMCrespo
Finally, you should read the facts.

[Celerity]

1. Great news. Two cases in one day with Roberts and Kavanaugh joining the liberal bloc.

FORD MOTOR CO. v. MONTANA was the other one.

https://www.supremecourt.gov/opinions/20pdf/19-368_febh.pdf