Courthouse Steps Decision Teleforum: Torres v. Madrid

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Decision Teleforum on Torres v. Madrid. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have joining us Kent Scheidegger, who is Legal Director and General Counsel for the Criminal Justice Legal Foundation. After Kent gives us his opening remarks, we will then open up the floor for a live audience Q&A.

 

      Thank you for sharing with us today. Kent, the floor is yours.

 

Kent Scheidegger:  Thank you. This case begins in Albuquerque, New Mexico. New Mexico State Police Officers go to an apartment complex in Albuquerque with an arrest warrant. They see a couple of people there, who aren't the ones they're looking for, but they want to talk to them. They're standing next to a Toyota FJ Cruiser. One of them gets in the car, and what happens next is disputed, but the officers went to talk to this person and she comes roaring out of the parking space in such a manner that the officers believe she's going to hit them with the car.

 

They fire at her. They hit her, but she doesn't stop. She crashes the car. She grabs another car that's idling while its owners are loading stuff, and then takes off, gets on the interstate, leaves Albuquerque, and doesn't stop until she gets to the next town, which is 75 miles away, Grants, New Mexico. This is New Mexico; it's a long distance between cities. There, she finally stops and goes to the hospital.

 

Eventually, the charges against her are dropped or dealt with, and she files a civil suit against the police officers, claiming an illegal seizure under the Fourth Amendment. The question becomes is a person seized, within the meaning of the Fourth Amendment, if that person is shot? That is, touched on their body by an object, not by the officers personally, but they do not ever gain control, and she leaves the scene?

 

The main precedence that is discussed in this case is another one from the '90s called Hodari D. Hodari D. raised the question of whether an officer chasing someone and demanding he stop, but he doesn't stop, has seized that person. According to Hodari D., he said no, that is not a seizure. There has been neither any touching of the person, any force applied, nor a command that is obeyed. In that circumstance, no seizure has occurred.

 

In the course of the Hodari D. discussion, Justice Scalia discussed the law of arrest that common law said that seizures necessarily include arrests as defined in common law. That common law, it was the rule, that if an officer did so much as touch a person while making an arrest, that person was arrested even if he had not ever been subjected to control and could immediately leave.

 

This rule had some consequences in common law. Once a person had been arrested, the authority to break into the house to further take them under control was greater. And there's an interesting 1830 early U.S. case that was cited by the majority in this case. That was a case where a local Philadelphia constable was charged with the federal crime of having arrested a diplomat, which was a federal crime and a violation of the law of nations.

 

In that case, a Supreme Court justice, sitting as circuit justice, instructed the jury in the mere touch rule; that as long as that constable had laid hands on the person and stated he was under arrest that that was sufficient to constitute an arrest.

 

The majority relies on these various authorities to include the mere touch rule in the laws of the Fourth Amendment and say that when an officer merely does so much as touch a person, that he has arrested that person.

 

The final question would be does the common law rule require actual laying on of hands, or can a person be touched by an object? There is very little authority in the old cases. Almost all of them involve manual touching. There's one old case where a person is touched by an object. It's kind of questionable whether that even applies.

 

But the majority, I think, wanted to avoid fine distinctions and just said it doesn't matter what a person is touched with. If the person is touched by the officer, then that person has been seized within the meaning of the Fourth Amendment because they have been arrested within the meaning of the common law.

 

The dissent by Justice Gorsuch takes issue with this rather heatedly, and in some places, perhaps a bit over heatedly. Firstly, the dissent notes the oddness of the result. There are two different kinds of seizure now. The seizure of an object requires actually taking the object into one's control while the seizure of a person can be achieved by merely touching the person even without control.

 

Justice Gorsuch goes on to say that the discussion in Hodari D. about the mere touch rule and the common law definition of arrest is dicta. That is, it's just an observation made in the course of the opinion; it's not necessary to the result. These kinds of passing observation are not considered precedent and don't have to be followed by courts in the future.

 

He also makes quite a big deal that the cases laying out the common law mere touch rule all come from debt collection cases. At common law, people could be arrested as part of debt collection. This is the source of most of the cases on whether a person has or has not been arrested.

 

I think his discussion of that and his distinction of that as being somehow unique is a bit overblown. The treatise by Sir Matthew Hale discusses these arrest rules in a passage that discusses both civil and criminal arrest. He discusses them together. He makes no indication that there is a different rule for civil versus criminal, and that's true in the cases that cite the rule thereafter.

 

The fact that there are no criminal cases discussing this issue isn't all that unusual because when you research common law cases in the search and seizure area, you do find mostly, if not entirely, civil cases. There was no exclusionary rule at the common law, and therefore, there was no reason for a criminal case, most of the time, to discuss the law of arrest or whether an arrest was valid. So, it's not all that unusual to have civil cases only as the precedence.

 

As for the opinion, this is an uncommon fact pattern. I don't think there are too many cases where an unlawful seizure is alleged without actually taking control of a person, so maybe it won't come up that often. The other thing about this case is will the officers prevail or will they be held liable for this? I think they're quite likely to prevail on the remand of the case. They're still protected by qualified immunity. If somebody's charging at you with an SUV with the pedal to the medal, you probably are justified in firing, or at least sufficiently justified to qualify for the qualified immunity rule.

 

That's the case in a nutshell. I think we can open it to questions now and maybe we'll hone many of them further with questions.

 

Micah Wallen:  Absolutely. Thank you, Kent. We will now open up the floor for a live audience Q&A. in the meantime, we'd like to offer a reminder to keep an eye out for emails announcing upcoming teleforum calls. You can consult the full schedule of our upcoming teleforum calls on The Federalist Society's website, fedsoc.org. Also available there are podcasts of the previously recorded teleforum calls that you may have missed as well as on iTunes, Spotify, and Google Play.

 

Kent Scheidegger:  For those interested in counting noses among the justices, I'll go ahead and give the lineup. This is a 5-3 decision with Justice Barrett not participating. It was argued very early in the term before she joined the Court. We have Justice Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh in the majority. Justice Gorsuch joined by Justices Thomas and Alito. That's perhaps not a too unusual a lineup. Roberts and Kavanaugh are usually considered to be the less conservative, relatively, of the Republican appointees. You were saying something, Micah?

 

Micah Wallen:  I was just going to say there's no questions that have lit up the queue yet, so is there anything else you wanted to cover or any --

 

Kent Scheidegger:  Yeah, it's kind of an interesting journey through legal history, but as I said, it is kind of a fact pattern that's, perhaps, a little corner of Fourth Amendment law that won't arise that often, so I'm not expecting a huge impact on law enforcement. The officers wouldn't have done anything differently if they knew they might be sued because I'm sure when they do shoot somebody, they do expect to fully stop them.

 

Micah Wallen:  Absolutely. All right, Kent. Well, I guess we can end early today. I'm sure the lack of questions is due to the comprehensive and detailed nature of your remarks. They have been fully informed and nothing is unclear.

 

      On behalf of The Federalist Society, I'd like to thank Kent for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.