SOTOMAYOR INVOKES SCALIA ON FOURTH AMENDMENT PROTECTIONS.

• Author: Root, Damon
• Position: LAW - Torres v. Madrid, Justice Sonia Sotomayor, the late Supreme Court Justice Antonin Scalia

DOES THE FOURTH Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure? The late Supreme Court Justice Antonin Scalia thought it did. "The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," Scalia wrote for a unanimous Court in the 1991 case California v. Hodari D., qualifies as a seizure for Fourth Amendment purposes.

In October, the Supreme Court heard oral arguments in Torres v. Madrid, which challenges that ruling. The U.S. Court of Appeals for the 10th Circuit held that no seizure occurred when New Mexico state police shot Roxanne Torres, because their bullets did not actually stop her from getting away. "An officer's intentional shooting of a suspect does not effect a seizure," the appeals court said in 2019, unless the gunshot terminates the suspect's movement "or otherwise cause[s] the government to have physical control over him."

Torres was sitting inside her car in her apartment building's parking lot. The officers, who were wearing dark tactical vests with police markings, were parked nearby in an unmarked car. They were there to arrest somebody else. The officers claimed they approached Torres because she was acting suspiciously. Torres, who said she thought she was about to be carjacked, testified that the officers never identified themselves as they crowded her vehicle. Fearing for her safety, she drove away. The officers shot her twice as she fled. She learned...