Is a Gunshot Wound a Seizure?

Posted in: Criminal Procedure

In Torres v. Madrid, the U.S. Supreme Court is considering the following question: Did a police officer who shot and hit a fleeing suspect thereby “seize” that suspect, triggering the Fourth Amendment requirement that all seizures be reasonable, even though the wounded suspect still managed to flee from the police? Unsurprisingly, existing cases bear on the question but do not answer it definitively. Torres is a close case that pits different kinds of constitutional considerations against one another. This column will explain some of the arguments and predict an outcome that would affirm prior precedents in a way that offers a compromise between competing constitutional concerns.

The Meaning of Seizure

The U.S. Supreme Court has long regarded violence by police against civilians as implicating the Fourth Amendment right against unreasonable seizures. The Court evaluates the use of force under Graham v. Connor, considering whether it survives a heightened reasonableness balancing test. Two seizure cases in particular provide guidance. One is Tennessee v. Garner, which prohibits police from killing a suspect unless the killing meets a heightened reasonableness requirement (i.e., needed to protect officers or civilians). A second is California v. Hodari D., which held that police may chase a suspect without triggering the Fourth Amendment right against unreasonable seizures. Absent submission by the target, a show of authority does not, alone, constitute a seizure. Once the police have touched the suspect, however, they have also seized him, even if he subsequently frees himself.

In Torres, police officers shot at a woman driving a car, and two bullets struck the woman, injuring her. She nonetheless drove away from the officers. The question is whether the officers who shot her ever seized her or whether, by not intentionally acquiring physical control over her, the officers did not perform a seizure within the meaning of the Fourth Amendment.

To consider how to define seizure, we must therefore ask whether shooting and thereby striking a person is more like chasing him or more like physically grabbing him. The question might sound peculiar, but the Court has explained that when police fail to apprehend a suspect, the method by which they attempted to do so matters for Fourth Amendment purposes. If an officer makes her attempt by show of authority, for example by yelling “freeze,” then there is no seizure unless and until the suspect submits to the show of authority. The logic consists at least in part of the fact that we would not ordinarily use the word “seizure” absent either physical touch or successful apprehension. If an officer physically touches a suspect, then even if the suspect manages to escape, the word “seizure” still seems to capture the moment of contact. This typology of “seizure” makes its debut in Hodari D.

Shooting Someone Is A Seizure

In Garner, the Court held that intentionally killing a suspect is a Fourth Amendment seizure requiring justification.

In Torres, unlike in Garner, the suspect in question not only survived but successfully fled the area after the officers shot her. One could argue that the officers therefore never seized her because they did not physically touch her nor did she submit to a show of authority. One reason to avoid this position, based in incentives, is that we do not want police to be able to shoot people without consequence. A second reason, more related to the logic of Hodari D., is that shooting a bullet into another person’s body is a kind of physical touching of that person, which qualifies as a seizure even if the suspect escapes. When we aim a gun and fire at someone, with the bullets entering the person’s body, we are touching her. To indicate the truth of this proposition, consider the fact that such conduct by a civilian would constitute a battery rather than just an attempted battery under the criminal law.

The fact that your hand sends a projectile into someone’s body rather than hitting that body itself ought to make no difference. If I throw a ball at you, you can say “she hit me!” I did not just try to hit you; I succeeded in doing so. I may have had a second goal, to stop you in your tracks, and that goal may have gone unfulfilled. Nonetheless, I did touch you by means of the bullet. Not only would it be unfortunate if police could shoot at people without triggering constitutional scrutiny. It would also treat as meaningfully distinct a case in which an officer grabs you with his hand, on the one hand, and a case in which an officer hits you with a billy club (or throws a billy club at you), on the other. Such treatment would make little sense from the standpoint of properly defining the category of seizures.

The tough case will be the officer who shoots at a suspect and does not hit his target. If the target runs away, then the use of deadly force that results in neither apprehension nor physical touching by anything coming from the officer may seem to fall outside the category of “seizure,” under Garner. In that case, the “creating the right incentives” approach to the Fourth Amendment will squarely conflict with the textual approach. It would be useful to declare an unjustified shooting an unreasonable seizure even when it fails to hit its target. But it is also counterintuitive to describe firing and missing a person as “seizing” him.

I suspect that what the Court will do with this latter case is say that it is an attempted seizure not subject to the Fourth Amendment, just like the pursuit in Hodari D. Indeed, the Court may make this pronouncement about shooting and missing in this case as dicta to bolster what might otherwise seem like a liberal holding that hitting one’s target is a seizure under the Fourth Amendment, even if the target successfully escapes.

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