About seven years ago, Roxanne Torres was approached by police officers in a New Mexico parking lot. The officers were searching for a suspect but were not, in fact, looking for Torres.
The decidedly conservative U.S. Supreme Court just came out with a ruling on Torres’ case that may sound, well, decidedly liberal.
Torres was going through methamphetamine withdrawal at the time and alleges that she believed the police officers were carjackers so she tried to drive away. Many of the facts in the case are in dispute, but at some point, two officers fired at her more than a dozen times and hit her twice in the back.
Torres eventually made her way to a hospital and was later arrested. She pleaded no contest to a number of crimes, including fleeing from a police officer, but she also filed a lawsuit against the officers, contending they used excessive force and that the shooting amounted to an unreasonable seizure under the Fourth Amendment.
The decidedly conservative U.S. Supreme Court just came out with a ruling on Torres’ case that may sound, well, decidedly liberal, by concluding the shooting could amount to a seizure.
In this ruling, Chief Justice John Roberts, joined by his conservative colleague Justice Brett Kavanaugh and the court’s three liberal judges (Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan) arguably broadened the ability to sue police officers for misconduct like use of excessive force.
It is impossible to talk about this case without acknowledging the fact that the decision is made against the backdrop of a country struggling with a buildup in the aftermath of incidents of alleged police misconduct.
While the opinions never used the words “racism” or “George Floyd,” the name of the 46-year-old Black man who died after an encounter with a white Minneapolis police officer, it is impossible to talk about this case without acknowledging the fact that the decision is made against the backdrop of a country struggling with a buildup in the aftermath of incidents of alleged police misconduct.
The court’s decision came out less than seven days before the trial begins against former police Officer Derek Chauvin, who is accused of murdering Floyd, whose death helped set off a summer of protests and a nationwide reckoning over issues of systemic racism and the criminal justice system.
And so we have our conservative chief justice, his conservative colleague and three liberal justices concluding that the “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”
In plain English this means that, for example, if a police officer fires a gun and hits you while attempting to prevent you from fleeing, that constitutes a seizure under the Fourth Amendment of the Constitution, even if the gunshot doesn’t actually prevent you from fleeing.
Ultimately, this decision could mean fewer protections for police officers who use force to try to restrain civilians. And the flip side of fewer protections is more potential avenues for liability for police officers accused of wrongdoing. If the conduct above amounts to a seizure, then the police officer in that case can be sued for committing an unreasonable seizure.
Ultimately, this decision could mean fewer protections for police officers who use force to try to restrain civilians.
But let’s move from the land of hypotheticals to the facts of the actual case the Supreme Court ruled on: This means Torres wins her case against the police officers, right? Not exactly. In fact, probably not. The ruling means Torres gets to keep going in her case against the officers, but they get to raise defenses, like qualified immunity. This may be the most difficult hurdle for Torres to overcome.
The doctrine of qualified immunity protects police officers, and other government officials, from being liable in federal civil suits if they did not violate a “clearly established” law. Many of these federal suits against police officers involve claims of use of excessive force. Again, if you’ve heard about this judge-made doctrine, it is likely because as a nation we are talking more openly about potential instances of police misconduct. We have also been told that conservatives will vote in favor of police officers and liberals will vote in favor of defendants and/or those accusing police officers of using excessive force. This case proves that assumption paints with far too broad a brush. This case boiled down to a question of constitutional interpretation and specifically what is included under the Fourth Amendment’s prohibition against unreasonable searches and seizures. Often in big, high-profile cases, the court’s votes will break down along ideological lines — but not always. In this case of constitutional interpretation, the majority claimed it is simply following past precedent to solidify what constitutes a seizure under the Fourth Amendment. (As a side note, that past precedent happens to be written by the late Justice Antonin Scalia, another conservative justice). If you agree with the dissent, you believe the majority is enlarging the definition of what qualifies as a seizure under the Fourth Amendment to the breaking point. On the current court, the chief justice may truly be an ideological island, but one with frequent visitors. Roberts and Kavanaugh took quite a bit of incoming verbal fire from their dissenting conservative colleagues. Justice Neil Gorsuch wrote for himself and Justices Clarence Thomas and Samuel Alito. Gorsuch described the majority’s conclusion that physical force can amount to a seizure as a view that is “as mistaken as it is novel.” This is legal speak for “You made this up because you wanted to get to a certain outcome.” It goes without saying that judges aren’t supposed to make up the law; they’re supposed to interpret existing law. Supreme Court justices are people too, and it strains common sense to think they are unaware of this current moment in history. Perhaps both the majority and the dissenting opinions do acknowledge, if only implicitly, the moment of reckoning we are facing in our country. The dissent all but openly accuses the conservative majority of wanting civilians to be able to hold police officers more accountable, hence creating a new legal protection to make it so. That majority, of course, denies this. In the end, we have clarity only on this important legal question: What falls within a seizure for purposes of the Fourth Amendment?
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
