The U.S. Supreme Court’s new term begins with arguments on October 5, 2020, with the Court set to hear many important criminal law cases. Amidst the current national conversation about policing, the Justices will consider the requirements for bringing claims of excessive force during an arrest and the availability of causes of action against individual law enforcement officers. The Court will also consider what remedies are available in enforcement actions by the Federal Trade Commission, whether unauthorized use of a private computer may result in criminal liability, and the availability of evidence for use in impeachment hearings. But, before looking at specific cases on the docket, we pause to note just how different this term will look from those in the past.
It is impossible to overstate the impact that Justice Ruth Bader Ginsburg had on the Supreme Court, and on American law more broadly. Her absence on the bench will be monumental. She was a legal, intellectual, and cultural icon for millions of Americans, and was a beloved and admired figure among her colleagues and the bar. As with the passing of her good friend Justice Antonin Scalia in 2016, it is hard to imagine the Court without her.
Given that the Court will begin the October 2020 term with only eight sitting Justices, Court observers should prepare for some surprising outcomes, and possibly even some deadlocked decisions. In the 2016 term, the Court issued four opinions that were 4-4 split decisions, which meant that the Court of Appeals decisions under review were preserved. Given the significance of the issues coming before the Court, hopefully definitive outcomes will be reached and clear directions given to lower courts wrestling with thorny issues.
As a result of the ongoing COVID-19 pandemic, the Court will hear oral arguments by telephone during the October sitting and possibly beyond. This was also their practice during the end of last year’s term. And, as with the end of that term, the arguments will be livestreamed.
Torres v. Madrid, No. 19-292Status: Argument on October 14, 2020
Issue: Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.
Commentary:
In the early morning of July 15, 2014, two New Mexico State Police officers visited an apartment complex to serve an arrest warrant. The officers came across Petitioner Roxanne Torres inside her SUV with the engine idling in the complex parking lot. As the officers approached, they startled Torres, who later testified that she believed they were carjackers. Torres threw the car into drive, and accelerated out of her parking space. The officers, believing she was trying to run them over, drew and discharged their firearms. Torres continued driving, even after being struck in the back by two bullets. She drove seventy-five miles to a hospital in a nearby town, where she was airlifted to another hospital and eventually arrested.
Torres sued the police officers, alleging she was seized using unreasonable force, in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The question before the Court is whether Torres was actually “seized” by the police, which is a pre-condition to an excessive force claim, as she was able to evade police capture and drive to a neighboring town. The Tenth Circuit ruled that because Torres was able to elude police capture, she was not seized, and therefore could not bring an excessive force claim. The decision relied on recent Tenth Circuit precedent, which provides that “a seizure requires restraint of one’s freedom of movement,” Brooks v. Gaenzle, 614 F.3d 1213, 1219 (10th Cir. 2010) (internal quotation marks omitted), without which, there is no Fourth Amendment violation.
Torres appealed the Tenth Circuit’s ruling, arguing that the mere application of force, i.e., the two bullets that struck her, constitute seizure under the Fourth Amendment. In this argument, Torres is in good company – the Tenth Circuit rule is a minority rule followed only by one other appellate court, the D.C. Court of Appeals. Torres’s argument is echoed by amicus briefs from the U.S. Solicitor General’s Office and the ACLU, two entities who do not often see eye-to-eye of late. As they note, the Tenth Circuit’s rule elides a key distinction between the two ways a police officer can “seize” a person: 1) by a show of authority; or 2) by means of physical force. As set forth by Justice Scalia in California v. Hodari D., 499 U.S. 621 (1991), when attempting to seize a suspect using a “show of authority,” a seizure is not effected unless the suspect actually assents to the officer’s command, and is restrained. Thus, where a police officer yells, “halt,” but the suspect runs away, no seizure has occurred. When using physical force, however, a seizure occurs the moment physical force is applied to the subject, regardless of whether the suspect is eventually able to escape.
The Tenth Circuit rule collapses these two prongs into one, such that a suspect who evades capture will not have been seized, even if the arresting officer applied physical force. This approach is plainly inconsistent with Hodari D, even if Justice Scalia’s distinction between the two kinds of seizure was technically dicta. As noted, nearly all other appellate courts have followed the reasoning of Hodari D, and one should expect the Supreme Court to announce a rule that would bring the Tenth Circuit and D.C. Court of Appeals into alignment with them.
Brownback v. King, No. 19-546Status: Argument on November 9, 2020
Issue: Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s Federal Tort Claims Act claim.
Commentary: On July 18, 2014, two plainclothes law enforcement officers were searching for a man suspected of felony home invasion when they encountered Respondent James King. The officers questioned and detained King, who, because he did not know the men were law enforcement, fought back, believing he was being mugged. The officers put King in a headlock and repeatedly punched him in the face before taking him to the hospital and, eventually, arresting him. King was later charged and prosecuted for resisting arrest, but a jury found him not guilty of all charges. He then sued the United States pursuant to the Federal Tort Claims Act (one of the officers was an FBI agent) and sued the individual officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
The District Court dismissed the tort claim against the United States for lack of subject-matter jurisdiction because King failed to satisfy the elements required for a tort...
