Constitutional law - arrest or impaired movement material to physical force seizure analysis - Brooks v. Gaenzle.

• Author: Wilusz, John M.

Constitutional Law--Arrest or Impaired Movement Material to Physical Force Seizure Analysis--Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), cert. denied, 131 S. Ct. 1045 (2011)

The Fourth Amendment of the United States Constitution provides protection for individuals from unreasonable searches and seizures. (1) The Supreme Court and circuit courts alike have repeatedly analyzed the definition and applicability of the word "seizure," along with the requisite amount of force needed to constitute a seizure, in a continued effort to safeguard against violation of the Fourth Amendment. (2) In Brooks v. Gaenzle, (3) the Court of Appeals for the Tenth Circuit considered whether shooting a suspect in the back as he successfully fled from pursuit could be construed as a seizure, and therefore represent a violation of the suspect's constitutional rights. (4) The court held that no Fourth Amendment violation took place, because a clear restraint of freedom of movement must occur in order for a seizure to result. (5)

Keith Brooks and Nick Acevedo broke into a home on October 17, 2005, with the intent to burglarize it. (6) When neighbors called police, El Paso County Sherriff's Department deputies, Steve Gaenzle and Paul Smith, responded and found the suspects in the home's garage. (7) Brooks and Acevedo fled into the house, shut the door, and fired one gunshot through the closed door at the officers. (8) Unharmed by the gunshot, the two officers ran from the garage and witnessed Brooks fleeing from the house and climbing a fence. (9) Gaenzle yelled "stop" and fired a shot at Brooks, striking him in the lower back. (10) Wounded, Brooks continued over the fence and fled the scene, but police captured him three days later after another chase. (11)

After a jury convicted Brooks of multiple offenses, including attempted murder, he brought a civil action against Deputies Gaenzle and Smith for alleged violations of 42 U.S.C. [section] 1983, claiming that the deputies used excessive force in seizing him by gunshot during the burglary. (12) The district court granted the defendants' motions for summary judgment based on qualified immunity, holding that the deputies used no excessive force because Brooks's shooting did not constitute a seizure, and alternatively that the deputies' force was objectively reasonable under the circumstances. (13) Specifically, the district court held that Deputy Gaenzle's gunshot constituted only an attempted seizure, and thus did not implicate the Fourth Amendment. (14) After an examination of applicable case law cited by the parties, the district court rejected both of Brooks's arguments, indicating that the gunshot likely pained the plaintiff and slowed his escape, but, importantly, did not bring him under the government's possession or control and was therefore not tantamount to a seizure because it did not produce a stop. (15) The district court further opined that regardless of whether a seizure occurred, the deputies used an objectively reasonable amount of force under the circumstances presented, given Brooks had likely committed a violent crime during which someone had shot at the deputies before fleeing. (16)

The Tenth Circuit reviewed de novo the grant of summary judgment based on qualified immunity and addressed a threshold question of whether the deputies violated a constitutional right by shooting Brooks as he ran away. (17) The court reviewed Supreme Court cases establishing current determinations of a "seizure" and explored the definitions of seizures in flight situations. (18) After applying principles from relevant precedent, the court reasoned that, although the deputies clearly struck Brooks with purpose and intent--namely, with the intent of stopping him--the shot did not actually stop Brooks and the deputies did not gain intentional acquisition of control over him. (19) Declaring that no genuine issue existed as to any material fact, the court indicated that the defendants were entitled to summary judgment and held that Brooks did not demonstrate that the deputies' alleged conduct violated a constitutional right because the deputies did not actually seize Brooks. (20)

In Terry v. Ohio, (21) the Supreme Court first examined the specific prerequisites for a noninvestigatory seizure in the context of a police stop and frisk, and determined that the Fourth Amendment's protections begin only when an officer has restrained an individual's liberty by means of physical force or show of authority. (22) The Court refined this definition by applying a totality of the circumstances analysis, and, acknowledging the difficulty in determining when minimal police contact rises to a seizure, clarified it by indicating that apprehension by use of deadly force is a seizure. (23) The Court further elucidated the requirements of a seizure for Fourth Amendment purposes in Brower v. County of Inyo, (24) stating that a seizure occurs only where the government terminates freedom of movement in an intentionally applied manner. (25)

Not long after Brower, the Court took up the subject yet again in the case of California v. Hodari D., (26) determining that even though a police officer had shown his authority by pursuing a suspect and demanding that he stop, a seizure only occurred at the point at which the officer tackled the suspect, because the suspect had not complied with the command to halt. (27) Seven years later, in County of Sacramento v. Lewis, (28) the Supreme Court clarified Hodari by rejecting amici arguments that the Fourth Amendment should cover both seizures and failed attempts to seize an individual. (29) The Lewis decision followed a Tenth Circuit opinion that held no seizure occurred where an officer shot out two tires on a fleeing suspect's car but the suspect continued to flee and neither submitted to authority nor stopped. (30)

Despite this consistent and thoroughly developed line of seizure-by-physical-force case law, the Eleventh Circuit held in Carr v. Tatangelo (31) that an intentional seizure occurred where a police officer fired upon and struck a suspect who then fled the site of the shooting back into his house, reasoning that the suspect's retreat constituted a submission to physical authority. (32) In a similar vein, other courts have held that seizures did occur in instances of merely momentary termination of movement. (33) Most recently, in Brendlin v. California, (34) the United States Supreme Court further clarified the necessary conditions for a seizure-through-physical-force analysis, and held that law enforcement officials...