In the Supreme Court of the United States
Roxanne Torres, Petitioner, V. Janice Madrid and Richard Williamson, Respondents
On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit
Brief of Amici Curiae the Reason Foundation, American Association for Justice, Cato Institute, Due Process Institute, Law Enforcement Action Partnership, and The R Street Institute in Support of the Petitioner
In recent years, public trust in our government institutions has fallen to record lows. Our law enforcement officers in particular face a crisis of confidence. As law enforcement agencies and the courts have failed to address highly publicized police shootings and other instances of misconduct, officers have reported serious concern about their ability to safely perform their duties without the support and trust of the communities they serve.
The public demands accountability from law- enforcement officers, and law enforcement officers deserve clear, objective standards governing their conduct. The rule applied below provides neither, resulting in less accountability for officers accused of misconduct and in subjective conduct standards based on factors that officers cannot control. This robs police misconduct victims of the relief they are entitled to and robs officers of the public trust necessary for effective community policing.
In California v. Hodari D., this Court made clear that “the quintessential ‘seizure of the person’ under our Fourth Amendment jurisprudence . . . [is] the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee.” 499 U.S. 621, 624, 626 (1991) (“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.”) (emphasis added). Several circuits and state courts follow Hodari D.’s plain language, holding that an officer’s intentional application of physical force constitutes a Fourth Amendment seizure, regardless of whether the force successfully stops the individual to which it is applied. See Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012); Carr v. Tatangelo, 338 F.3d 1259 (11th Cir. 2003); Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995); State v. Garcia, 217 P.3d 1032 (N.M. 2009).
The Tenth Circuit’s rule is irreconcilable with Hodari D. and the circuits that follow it. The decision below relied on the Tenth Circuit’s decision in Brooks v. Gaenzle, where the court held that an officer’s intentional shooting 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.” 614 F.3d 1213, 1224 (10th Cir. 2010).
Neither this Court’s precedent nor the common law supports the Tenth Circuit’s rule. This brief will not discuss these arguments in detail since they are addressed at length by Petitioner. See Pet. Br. at 13–29. Instead, this brief focuses on why the Court should clarify its precedent and correct the Tenth Circuit’s erroneous interpretation of the Fourth Amendment.
The rule applied below is bad for police and bad for the communities they serve. It immunizes certain police misconduct from liability, denying justice to victims. At the same time, it exacerbates the public’s existing crisis of confidence in law enforcement, and in so doing harms law-enforcement officers themselves.
This Court should reverse the Tenth Circuit and return uniformity and predictability to the Court’s Fourth Amendment jurisprudence.