In a sharp exchange, dissenting conservatives suggested that Chief Justice Roberts warped the law in response to public sentiment.
WASHINGTON — A fleeing woman shot by police officers may sue them for using excessive force, the Supreme Court ruled on Thursday, saying that the shooting was a “seizure” under the Fourth Amendment even though the woman had managed to escape.
“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,” Chief Justice John G. Roberts Jr. wrote for the majority in the 5-to-3 decision.
The ruling elicited a sharp dissent from the court’s three most conservative members, who came close to accusing the chief justice of bending the law in response to the public uproar over police violence.
Justice Neil M. Gorsuch offered a possible reason for the majority’s decision to let the plaintiff, Roxanne Torres, pursue her suit: “Maybe it is an impulse that individuals like Ms. Torres should be able to sue for damages.”
“Sometimes police shootings are justified, but other times they cry out for a remedy,” Justice Gorsuch wrote, joined by Justices Clarence Thomas and Samuel A. Alito Jr. “The majority seems to give voice to this sentiment.”
Chief Justice Roberts’s mild response did not wholly mask his irritation. “The dissent speculates that the real reason for today’s decision is an ‘impulse’ to provide relief to Torres,” he wrote.
“There is no call for such surmise,” he wrote, saying the court had effectively answered the question before it in a 1991 decision featuring a majority opinion from Justice Antonin Scalia. “At the end of the day, we simply agree with the analysis of the common law of arrest and its relation to the Fourth Amendment set forth 30 years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today.”
Justice Brett M. Kavanaugh joined the majority opinion, as did the three members of the court’s liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That coalition now appears to represent the most likely one in which the liberal bloc prevails. (The case was argued before Justice Amy Coney Barrett joined the court, and she did not take part in deciding it.)
The case, Torres v. Madrid, No. 19-292, started when two state police officers in dark tactical gear arrived at a housing complex to serve an arrest warrant early on a summer morning in Albuquerque in 2014. In the parking lot, they came upon Ms. Torres, sitting in her car with the engine running.
Ms. Torres was not the woman they were looking for. But the officers, who did not identify themselves, approached her car. Taking them for carjackers, Ms. Torres started to drive away. The officers shot at her 13 times, hitting her twice, but she managed to flee.
Precisely what happened that morning is contested. The officers say they feared that Ms. Torres would run them over.
Ms. Torres soon lost control of her car, stopped in a parking lot and asked a bystander to call the police. Receiving no response, she stole a car that had been left running and drove 75 miles to a hospital in Grants, N.M.
She was airlifted to a hospital in Albuquerque, where she was arrested. She pleaded no contest to charges of fleeing from a police officer, assaulting a police officer and stealing a car.
Ms. Torres sued the officers who shot her, Richard Williamson and Janice Madrid, saying they had used excessive force in violation of her Fourth Amendment rights. The amendment bars unreasonable searches and seizures.
Had the officers managed to stop Ms. Torres, there would be no question that she could sue. The question for the justices was whether it should matter that Ms. Torres managed to escape.
The United States Court of Appeals for the 10th Circuit, in Denver, ruled that it did. “A suspect’s continued flight after being shot by police,” the court said, “negates a Fourth Amendment excessive-force claim.”
Chief Justice Roberts said that was the wrong analysis, pointing to the 1991 decision, which said that “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.”
Chief Justice Roberts wrote that Ms. Torres’s case was covered by that analysis.
“The officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away,” the chief justice wrote. “We therefore conclude that the officers seized Torres for the instant that the bullets struck her.”
Chief Justice Roberts stressed that Ms. Torres had several additional hurdles to overcome to before she could win her suit. “We leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure and the officers’ entitlement to qualified immunity,” he wrote.
Qualified immunity, which requires plaintiffs to show that the officers had violated a clearly established constitutional right, is in particular a powerful legal shield.
In dissent, Justice Gorsuch wrote that the chief justice had put too much weight on an aside in the 1991 decision and ignored the text of the Constitution, history and common sense.
The decision also left countless questions unanswered, Justice Gorsuch wrote. “Imagine that, with an objective intent to detain a suspect, officers deploy pepper spray that enters a suspect’s lungs as he sprints away,” he wrote. “Does the application of the pepper spray count?”
“Suppose that, intending to capture a fleeing suspect, officers detonate flash-bang grenades that are so loud they damage the suspect’s eardrum, even though he manages to run off,” he wrote. “Or imagine an officer shines a laser into a suspect’s eyes to get him to stop, but the suspect is able to drive away with now-damaged retinas.”
He added that the majority’s approach turned on happenstance.
“A fleeing suspect briefly touched by pursuing officers may have a claim,” Justice Gorsuch wrote. “But a suspect who evades a hail of bullets unscathed, or one who endures a series of flash-bang grenades untouched, is out of luck.”
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