||SHOT SUSPECT WHO ESCAPES DOES NOT HAVE CLAIM FOR EXCESSIVE FORCE

SHOT SUSPECT WHO ESCAPES DOES NOT HAVE CLAIM FOR EXCESSIVE FORCE

On May 2, 2019, the Tenth Circuit Court of Appeals decided Torres v. Madrid et al.[i], in which the court examined whether officer violated the Fourth Amendment when they shot Torres, but she escaped.  The relevant facts of Torres, taken directly from the case, are as follows:

Early in the morning on July 15, 2014, New Mexico State Police officers went to an apartment complex in Albuquerque to arrest a woman, Kayenta Jackson, who was “involved with an organized crime ring.” Aplt. App. at 120. The officers saw two individuals standing in front of the woman’s apartment next to a Toyota FJ Cruiser. The Cruiser was backed into a parking spot, with cars parked on both sides of it. The officers, who were wearing tactical vests with police markings, decided to make contact with the two individuals in case one was the subject of their arrest warrant.

As the officers approached the Cruiser, one of the individuals ran into the apartment, while the other individual, Torres, got inside the Cruiser and started the engine. At the time, Torres was “trip[ping] . . . out” from having used meth “[f]or a couple of days.” Id. at 108.

Officer Richard Williamson approached the Cruiser’s closed driver-side window and told Torres several times, “Show me your hands,” as he perceived Torres was making “furtive movements . . . that [he] couldn’t really see because of the [Cruiser’s] tint[ed]” windows. Id. at 124 (internal quotation marks omitted). Officer Janice Madrid took up a position near the Cruiser’s driver-side front tire. She could not see who the driver was, but she perceived the driver was making “aggressive movements inside the vehicle.” Id. at 115.

According to Torres, she did not know that Williamson and Madrid were police officers, and she could not hear anything they said. But when she “heard the flicker of the car door” handle, she “freak[ed] out” and “put the car into drive,” thinking she was being carjacked. Id. at 205.

When Torres put the car in drive, Officer Williamson brandished his firearm. At some point, Officer Madrid drew her firearm as well. Torres testified that she “stepped on the gas . . . to get away,” and the officers “shot as soon as the [Cruiser] creeped a little inch or two.” Id. at 206. Officer Madrid testified that the Cruiser “drove at [her]” and she fired “at the driver through the windshield” “to stop the driver from running [her] over.” Id. at 114. Officer Williamson testified that he shot at the driver because he feared being “crush[ed]” between the Cruiser and the neighboring car, as well as “to stop the action of [the Cruiser] going towards [Officer] Madrid.” Id. at 125.

Two bullets struck Torres. She continued forward, however, driving over a curb, through some landscaping, and onto a street. After colliding with another vehicle, she stopped in a parking lot, exited the Cruiser, laid down on the ground, and attempted to “surrender” to the “carjackers” (who she believed might be in pursuit). Id. at 208.

Torres “was [still] tripping out bad.” Id. She asked a bystander to call police, but she did not want to wait around because she had an outstanding arrest warrant. So, she stole a Kia Soul that was left running while its driver loaded material into the trunk. Torres drove approximately 75 miles to Grants, New Mexico, and went to a hospital, where she identified herself as “Johannarae C. Olguin.” Id. at 255. She was airlifted to a hospital in Albuquerque, properly identified, and arrested by police on July 16, 2014. She ultimately pled no contest to three crimes: (1) aggravated fleeing from a law-enforcement officer (Officer Williamson); (2) assault upon a police officer (Officer Madrid); and (3) unlawfully taking a motor vehicle.[ii]

Torres subsequently filed suit in federal court and alleged that the two officers violated her right to be free from unreasonable seizure (excessive force) under the Fourth Amendment when they shot her.  She also alleged that the officers conspired to commit excessive force against her.

The district court granted qualified immunity to the officers holding that Torres was not seized when the officers shot her because she escaped.  Torres appealed the dismissal of her case to the Tenth Circuit Court of Appeals.

On appeal, the Tenth Circuit first set out to determine if the officers violated the Fourth Amendment when they shot Torres.  The court first noted the legal principles that govern this case and stated

We treat claims of excessive force as seizures subject to the Fourth Amendment’s objective requirement for reasonableness.” Lindsey v. Hyler, 918 F.3d 1109, 1113 (10th Cir. 2019) (internal quotation marks omitted). Thus, “[t]o establish [her] claim, [Torres] . . . must show both that a seizure occurred and that the seizure was unreasonable.” Farrell v. Montoya, 878 F.3d 933, 937 (10th Cir. 2017) (internal quotation marks omitted). Consequently, “[w]ithout a seizure, there can be claim for excessive use of force” under the Fourth Amendment. Id. (internal quotation marks omitted).[iii] [emphasis added]

Thus, to have a Fourth Amendment violation for excessive force, the plaintiff must show (1) that she was seized under the Fourth Amendment, and (2) that the seizure was unreasonable (excessive).

The court then set out to determine if Torres was “seized” under the meaning of the Fourth Amendment.  The court examined Brooks v. Gaenzle,[iv] a Tenth Circuit case that speaks directly to the issue.  In this case, the court noted that

[A] seizure requires restraint of one’s freedom of movement.[v]

In examining Brooks, the Tenth Circuit stated

[T]his court held that a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim. This is so, because “a seizure requires restraint of one’s freedom of movement.” Id. at 1219 (internal quotation marks omitted). Thus, an officer’s intentional shooting of a suspect does not effect a seizure unless the “gunshot . . . terminate[s] [the suspect’s] movement or otherwise cause[s] the government to have physical control over him.” Id. at 1224.[vi]

The court then applied the rules above and holding from Brooks facts of Torres’ case.  Torres was shot by the police.  She failed to stop or submit to the officer’s authority after being shot.  Rather, she fled some distance and then stopped and stole a car.  She then fled seventy-five additional miles before she went to a hospital and used a false name.  She was transferred to another hospital where she was identified and arrested, a full day after the shooting had occurred.

The Tenth Circuit then held

[T]he officers’ use of deadly force against Torres failed to “control [her] ability to evade capture or control.” Id. at 1223 (internal quotation marks omitted). Because Torres managed to elude police for at least a full day after being shot, there is no genuine issue of material fact as to whether she was seized when Officers Williamson and Madrid fired their weapons into her vehicle. See id. (rejecting plaintiff’s contention that “his shooting alone constitute[d] a seizure,” given that “he continued to flee without the deputies’ acquisition of physical control” and “remained at large for days”); see also Farrell, 878 F.3d at 939 (concluding that plaintiffs were not seized when an officer fired his gun at them, because they continued fleeing for several minutes). Without a seizure, Torres’s excessive-force claims (and the derivative conspiracy claims) fail as a matter of law.[vii]

In other words, because being shot did not seize Torres under the Fourth Amendment, she cannot establish the basis for a claim under the Fourth Amendment.  Therefore, the Tenth Circuit affirmed the grant of qualified immunity to both officers in this case.

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Citations

[i] No. 18-2134 (10th Cir. Decided May 2, 2019)

[ii] Id. at 1-3

[iii] Id. at 5-6

[iv] 614 F.3d 1213 (10th Cir. 2010)

[v] Id. at 1219

[vi] Torres at 6

[vii] Id. at 6-7

By |2019-12-30T14:09:55+00:00December 30th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.