John Kramer
John Kramer · August 27, 2020

Arlington, Virginia—In Torres v. Madrid, the U.S. Supreme Court will decide whether a woman who was shot in the back by plain-clothed police officers (whom she thought were assailants) may bring a Fourth Amendment challenge to the shooting, or whether the Constitution does not apply merely because she was able to drive away immediately after being shot. The Institute for Justice and a coalition of civil liberties and civil rights groups across the philosophical spectrum filed a friend-of-the-court brief urging the Court to hold that death or incapacitation is not a prerequisite to constitutional scrutiny of police officers’ use of force. The groups argue that a contrary holding would have dire consequences for individual liberty and for individuals’ ability to hold police officers accountable for a wide range of violence that exceeds their authority.

The U.S. Supreme Court is scheduled to hear the case on October 14, 2020.

The case arises from a lawsuit brought by Roxanne Torres against two New Mexico State Police officers. Torres was sitting in her car when two people she could not identify as police officers tried to open her locked car door. The officers were apparently in the area looking for someone else. Thinking she was being carjacked, Torres started driving away. In response, the officers fired a barrage of bullets—two into Torres’ back and thirteen into her car—that left her permanently injured. Torres was able to continue driving and eventually got herself to a hospital.

She later sued the officers, arguing that their barrage of gunfire violated the Fourth Amendment’s prohibition on excessive force. The 10th U.S. Circuit Court of Appeals held that, because the gunshots into her back did not immediately terminate her movement, Torres was never “seized” by the officers’ intentional use of deadly force. Therefore, the lower court held, the Fourth Amendment—which protects against “unreasonable searches and seizures”—was not even applicable. In other words, there could not even be an inquiry into the reasonableness or appropriateness of the officers’ use of deadly force, simply because Torres was not immediately killed or incapacitated by their bullets.

The 10th Circuit’s rule cannot be squared with judges’ basic duty to evaluate the constitutionality of police conduct without creating artificial immunities and other barriers to accountability. So the Institute for Justice joined the ACLU, the ACLU of New Mexico, the Center for Constitutional Rights, the Leadership Conference on Civil and Human Rights, and the National Police Accountability Project to urge the U.S. Supreme Court to reverse this dangerous holding.

The groups’ amicus brief argues that the 10th Circuit’s rule is inconsistent with prior Supreme Court precedent and basic Fourth Amendment principles. It also demonstrates that under the 10th Circuit’s rule, police officers are effectively immunized from constitutional scrutiny and accountability when they use common forms of physical force that may not have the effect of immediately killing or incapacitating their victims—including gunshots, tasers, billy clubs, batons and closed fists. As shown in the brief, that cannot be squared with the text or purpose of the Fourth Amendment, which protects against all unreasonable physical intrusions on bodily autonomy.

[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]