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Hieronymous Alloy posted:Which is, of course, changing the standard. "Capable of," not "actually repeated." But the burden falls on plaintiffs so who cares right? City of LA v Lyons makes clear that capable of repetition (for purposes of injunctive relief) involves a reasonable showing that the conduct to be enjoined will happen again. (And it doesn’t evade review in the first case because the damages claims still exist, as in that case.) Basically, everything is “capable of repetition” if mere possibility is enough, so the courts impose an unwritten “and reasonably likely to be repeated” condition on it.
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Mar 13, 2021 00:43
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I know, I just think the courts give undue credit to representations by the government that their behavior won't be repeated, especially when the underlying policy positions haven't changed and it's obvious to all involved that the government is trying to avoid an unfavorable precedent & force future litigants to start over at square one.
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Mar 14, 2021 21:40
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Historical Question: What was the legal philosophy that conservative justices used to justify their decisions before the 1980's? Did they basically use Originalism and Textualism without giving it a name/codifying it?
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Mar 16, 2021 01:54
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SadBag posted:Historical Question: What was the legal philosophy that conservative justices used to justify their decisions before the 1980's? Did they basically use Originalism and Textualism without giving it a name/codifying it? Various and sundry depending on era. It’s not like you can’t reach a conservative position via non-textually interpretive principles (and vice versa, we are all textualists now etc etc) so much of it was just about using the legal theories of the time to reach a conservative, rather than progressive, view. As one example, look at the Lochner decision - an unabashedly conservative decision that resounds in the kind of unenumerated rights language that would later be employed in favor of civil liberties. What you really see are theories being deployed by the current in-orthodoxy and in turn being adopted by the out-orthodoxy as a tactic against the in, with the in/out groups shifting over time. You see it already with textualist arguments (eg the gay marriage arguments re: equal rights for a man to marry a man and a woman to marry a man.) I think the ultimate summation of this argument is Duncan Kennedy’s The Critique of Rights in Critical Legal Studies but I’m unabashedly a critical legal theorist in many ways so of course I would. E: a quote from TCOR to illustrate: “I wonder how abolitionist litigators dealt with their own dramatic shift, from nationalists to states’ rights advocates, after the Fugitive Slave Law put the federal government on the side of the South against resisting Northern state governments.” Kalman fucked around with this message at 03:06 on Mar 16, 2021 |
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Mar 16, 2021 02:47
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Kalman posted:Various and sundry depending on era. It’s not like you can’t reach a conservative position via non-textually interpretive principles (and vice versa, we are all textualists now etc etc) so much of it was just about using the legal theories of the time to reach a conservative, rather than progressive, view. Yeah, interpretive principles don't necessarily have a consistent political valence. I would say that originalism (as a theory of constitutional interpretation) does tend to have generally right-wing implications, but textualism (as a theory of statutory interpretation) really can go either way. The US Constitution contains a lot of sweeping rights-and-equality language that had a lot of unstated implied exceptions at the time a given portion of it was written; note, for instance, that while even Clarence Thomas supports Brown's result (though not its reasoning), it's hard to square with originalism when you consider that the Congress that passed the Fourteenth Amendment oversaw a segregated school system in the District of Columbia. But there's no particular reason I can see why statutes should consistently be to the "right" or "left" of their legislative history. I think there's three reasons for the popularity of textualism with conservatives in recent decades: 1) Scalia's textualist arguments were influential; 2) textualism appeals to a certain rather rigid frame of mind that political conservatism (at least the ~80s version of conservatism) also appeals to, and 3) textualism was useful to conservatives with regard to interpretation of some specific prominent laws (mainly the Civil Rights Act, I think).
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Mar 16, 2021 03:56
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Scalian originalism has a conservative bent, but you can equally well make many left/liberal arguments from an originalist perspective. (Though that then gets into No True Originalism arguments, and is in fact where some of the internal originalist debates derive.) Arguments aimed at liberal rights, for example, can derive from all that highbrow rights language and argue that the original intent was to maximize the conceivable scope of free speech, while the conservatives can argue from original public meaning for a far more limited view of the right. Basically legal theory’s all a bunch of conflicting and self-contradictory rhetoric and the best way to win (as a lawyer) is to lose any faith that it’s meaningful, rather than simply effective.
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Mar 16, 2021 04:14
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Kalman posted:Scalian originalism has a conservative bent, but you can equally well make many left/liberal arguments from an originalist perspective. (Though that then gets into No True Originalism arguments, and is in fact where some of the internal originalist debates derive.) Arguments aimed at liberal rights, for example, can derive from all that highbrow rights language and argue that the original intent was to maximize the conceivable scope of free speech, while the conservatives can argue from original public meaning for a far more limited view of the right. Freedom of speech/press is another weird example, because it can be argued what it meant at the time was basically what Blackstone meant by it, which was freedom from prior restraints and not much else. Though you can also point to the legacy of the Zenger case and the rhetoric used by opponents of the Alien and Sedition Acts to argue that the original public meaning of the First Amendment was more expansive. Silver2195 fucked around with this message at 04:26 on Mar 16, 2021 |
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Mar 16, 2021 04:23
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As a practical matter, " Here's a simple clear reason to rule in my favor and put this to bed. If you want to rule for the other guy, here is a string of complicated arguments that will be painful to think about and may get you overturned" tends to win more cases more of the time than any set of legal philosophies. The thing about appellate work is that the judges have usually made up their mind about the case long, long before oral argument, and have probably already told their clerks "write me an opinion ruling x" and then the clerks find the arguments to support the predetermined positions and use the philosophies to pad out their page counts. Oral argument is just about making it awkward for the judges who disagree with you and helping the judges who agree with you rationalize their decisions.
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Mar 16, 2021 04:33
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Hieronymous Alloy posted:The thing about appellate work is that the judges have usually made up their mind about the case long, long before oral argument, and have probably already told their clerks "write me an opinion ruling x" and then the clerks find the arguments to support the predetermined positions and use the philosophies to pad out their page counts. Plus you have the parties' briefs and the lower court's decision, so there's often (every single case at SCOTUS, not always in courts of first appeal) competent briefs on each side to just steal from.
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Mar 16, 2021 04:39
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Silver2195 posted:Freedom of speech/press is another weird example, because it can be argued what it meant at the time was basically what Blackstone meant by it, which was freedom from prior restraints and not much else. Though you can also point to the legacy of the Zenger case and the rhetoric used by opponents of the Alien and Sedition Acts to argue that the original public meaning of the First Amendment was more expansive. Freedom of speech is sort of agnostic to the left/right value system anyway, which is why it's one of the stereotypical libertarian talking points. Governmental interest in the "shouting fire in a crowded theatre" argument is basically just pro-federal power- it can be used to stop circulation of communist pamphlets or nazi ones.
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Mar 16, 2021 17:57
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BougieBitch posted:Freedom of speech is sort of agnostic to the left/right value system anyway, which is why it's one of the stereotypical libertarian talking points. Governmental interest in the "shouting fire in a crowded theatre" argument is basically just pro-federal power- it can be used to stop circulation of communist pamphlets or nazi ones. Here’s the secret: that’s true of basically everything. Let’s take the right to control of property. As a conservative, you argue that anything you do with your property is right. As a liberal, you argue that use of property in environmentally unsound ways harms your property and thus property rights require environmental regulation. Hohfeldian jural correlatives are an early development of this idea of balancing interests and a useful way to develop these sorts of countervailing arguments. The critical response in the 70s/80s extends on this basic balancing theory to note that even when talking about ‘rights’ there’s no one argument. The idea that rights have a single determinate outcome is in and of itself wrong - they are just as manipulable and just as policy-oriented as policy arguments, they’re just cloaked in language that makes people forget that.
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Mar 16, 2021 21:58
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https://twitter.com/greenhousenyt/status/1374348301013811200
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Mar 24, 2021 07:32
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Jesus christ, they really aren't even bothering to hide that they want full-blown neo-feudalism are they?
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Mar 24, 2021 08:20
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Good to see SovCit making its way to SCOTUS.
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Mar 24, 2021 09:54
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"We have the right to exclude anyone from our property for any reason." *plants huge NO COPS ALLOWED sign in their front yard* Mikl fucked around with this message at 11:48 on Mar 24, 2021 |
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Mar 24, 2021 11:10
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Funny you should mention that. https://twitter.com/lawcrimenews/status/1374556576888070148 The Supreme Court is also hearing a case about a guy who found One Weird Trick to avoid being arrested- do his crimes on an Indian reservation because tribal cops aren't allowed to arrest people who aren't Indians.
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Mar 24, 2021 11:22
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Some Guy TT posted:Funny you should mention that. This is less cool than the part of Yellowstone where the Constitution doesn't allow a jury to be seated to convict you. https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1020&context=facpubs
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Mar 24, 2021 14:20
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Some Guy TT posted:Funny you should mention that. The real answer is tribal cops should be able to arrest anyone who breaks the law but that would mean giving Native Americans actual rights and  at the idea of the US government doing that willingly.Mikl posted:"We have the right to exclude anyone from our property for any reason." *watches as millions of evangelicals start denying service to minorities*
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Mar 24, 2021 14:31
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Evil Fluffy posted:The real answer is tribal cops should be able to arrest anyone who breaks the law but that would mean giving Native Americans actual rights and The constitution pretty plainly doesn't allow that. Tribal court & police don't have bill of rights restrictions. e.g. there was a different supreme court case awhile ago about whether a tribal court criminal conviction without a lawyer for the defendant could be used in a later federal court sentencing enhancement. Restrictions on tribal police searching Indians are statutory, not constitutional. Congress currently authorizes tribal police to detain non-Indians after witnessing obvious violations of state/federal law to transfer to local police, but not more. The events in this case go: cop goes up to a car pulled off the road, talks to the driver, decides it is suspicious, cop draws his gun, searches the car, finds some meth, then calls the local police. Guy is arguing that the cop didn't have the authority to search his car and that the remedy is to suppress the evidence the same as if a normal cop did an illegal search
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Mar 24, 2021 19:33
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Question. https://www.lgbtqnation.com/2021/03/arkansas-legislature-passes-bill-allow-emts-doctors-refuse-treat-lgbtq-people/ Arkansas passed a law (which has yet to be signed by the governor) which allows all medical personnel to refuse treatment to LGBTQ+ people, with no exception, for "religious reasons." How likely is this law to stand up to judicial review?
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Mar 24, 2021 20:12
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Just last year SCOTUS ruled 6-3 that LGBTQ+ folks are covered under Title VII protections banning employment discrimination on the basis of sex. Ruling on Title VI protections (covering healthcare) seems like it would be open-and-shut unless Roberts or Gorsuch decides to go full rear end in a top hat?
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Mar 24, 2021 20:35
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https://twitter.com/NewJerseyOAG/status/1374764925202096134
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Mar 25, 2021 05:58
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It certainly is odd to see a bunch of self-described leftists on Twitter celebrating the 9th Circuit upholding a county law that says, "Pinkertons may go armed as a matter of course, but other private citizens may only carry weapons when the government deems them worthy of the privilege (never)."
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Mar 25, 2021 22:20
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 Opinions! FORD MOTOR CO. v. MONTANA EIGHTH JUDICIAL DISTRICT COURT ET AL. TLDR: Montana and Minnesota state courts hauled Ford Motor Company into products-liability lawsuits from car accidents that injured a state resident in their state. Ford asserted its contacts with the states were not enough to make it fair to bring Ford into those state courts (the vehicles were designed outside the states, manufactured outside the states, sold outside the states (later resold / relocated to the states). The Court says nah, that’s close enough to get you into state court. You market everywhere. Majority Opinion (Kagan): In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a productsliability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit. Ford is a global auto company. It is incorporated in Delaware and headquartered in Michigan. But its business is everywhere. Ford markets, sells, and services its products across the United States and overseas. … Accidents involving two of Ford’s vehicles—a 1996 Explorer and a 1994 Crown Victoria—are at the heart of the suits before us. One case comes from Montana….The second case comes from Minnesota. … Ford moved to dismiss the two suits for lack of personal jurisdiction, on basically identical grounds. According to Ford, the state court (whether in Montana or Minnesota) had jurisdiction only if the company’s conduct in the State had given rise to the plaintiff ’s claims. And that causal link existed, Ford continued, only if the company had designed, manufactured, or—most likely—sold in the State the particular vehicle involved in the accident. In neither suit could the plaintiff make that showing. ... Both the Montana and the Minnesota Supreme Courts (affirming lower court decisions) rejected Ford’s argument. The Montana court began by detailing the varied ways Ford “purposefully” seeks to “serve the market in Montana.” The company advertises in the State; “has thirty-six dealerships” there; “sells automobiles, specifically Ford Explorers[,] and parts” to Montana residents; and provides them with “certified repair, replacement, and recall services.” Next, the court assessed the relationship between those activities and the Gullett suit. Ford’s conduct, said the court, encourages “Montana residents to drive Ford vehicles.” When that driving causes in-state injury, the ensuing claims have enough of a tie to Ford’s Montana activities to support jurisdiction. Whether Ford “designed, manufactured, or sold [the] vehicle” in the State, the court concluded, is “immaterial.” Ibid. Minnesota’s Supreme Court agreed. It highlighted how Ford’s “marketing and advertisements” influenced state residents to “purchase and drive more Ford vehicles.” Indeed, Ford had sold in Minnesota “more than 2,000 1994 Crown Victoria[s]”—the “very type of car” involved in Bandemer’s suit. That the “particular vehicle” injuring him was “designed, manufactured, [and first] sold” elsewhere made no difference. In the court’s view, Ford’s Minnesota activities still had the needed connection to Bandemer’s allegations that a defective Crown Victoria caused in-state injury. … The Fourteenth Amendment’s Due Process Clause limits a state court’s power to exercise jurisdiction over a defendant. The canonical decision in this area remains International Shoe Co. v. Washington, 326 U. S. 310 (1945). There, the Court held that a tribunal’s authority depends on the defendant’s having such “contacts” with the forum State that “the maintenance of the suit” is “reasonable, in the context of our federal system of government,” and “does not offend traditional notions of fair play and substantial justice.” In giving content to that formulation, the Court has long focused on the nature and extent of “the defendant’s relationship to the forum State.” That focus led to our recognizing two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction. A state court may exercise general jurisdiction only when a defendant is “essentially at home” in the State. General jurisdiction, as its name implies, extends to “any and all claims” brought against a defendant...Only a select “set of affiliations with a forum” will expose a defendant to such sweeping jurisdiction. In what we have called the “paradigm” case, an individual is subject to general jurisdiction in her place of domicile. And the “equivalent” forums for a corporation are its place of incorporation and principal place of business. So general jurisdiction over Ford (as all parties agree) attaches in Delaware and Michigan—not in Montana and Minnesota. Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name “purposeful availment.” The defendant, we have said, must take “some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State.” The contacts must be the defendant’s own choice and not “random, isolated, or fortuitous.” They must show that the defendant deliberately “reached out beyond” its home—by, for example, “exploi[ting] a market” in the forum State or entering a contractual relationship centered there. Yet even then—because the defendant is not “at home”—the forum State may exercise jurisdiction in only certain cases. The plaintiff ’s claims, we have often stated, “must arise out of or relate to the defendant’s contacts” with the forum. These rules derive from and reflect two sets of values— treating defendants fairly and protecting “interstate federalism.” Our decision in International Shoe founded specific jurisdiction on an idea of reciprocity between a defendant and a State: When (but only when) a company “exercises the privilege of conducting activities within a state”—thus “enjoy[ing] the benefits and protection of [its] laws”—the State may hold the company to account for related misconduct. Later decisions have added that our doctrine similarly provides defendants with “fair warning”—knowledge that “a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” … Ford agrees that it has “purposefully avail[ed] itself of the privilege of conducting activities” in both places. Ford’s claim is instead that those activities do not sufficiently connect to the suits, even though the resident-plaintiffs allege that Ford cars malfunctioned in the forum States. In Ford’s view, the needed link must be causal in nature: Jurisdiction attaches “only if the defendant’s forum conduct gave rise to the plaintiff ’s claims.” And that rule reduces, Ford thinks, to locating specific jurisdiction in the State where Ford sold the car in question, or else the States where Ford designed and manufactured the vehicle. On that view, the place of accident and injury is immaterial. So (Ford says) Montana’s and Minnesota’s courts have no power over these cases. But Ford’s causation-only approach finds no support in this Court’s requirement of a “connection” between a plaintiff ’s suit and a defendant’s activities...None of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit “arise out of or relate to the defendant’s contacts with the forum.” The first half of that standard asks about causation; but the back half, after the “or,” contemplates that some relationships will support jurisdiction without a causal showing....And indeed, this Court has stated that specific jurisdiction attaches in cases identical to the ones here—when a company like Ford serves a market for a product in the forum State and the product malfunctions there. … allowing jurisdiction in these cases treats Ford fairly, as this Court’s precedents explain. In conducting so much business in Montana and Minnesota, Ford “enjoys the benefits and protection of [their] laws”— the enforcement of contracts, the defense of property, the resulting formation of effective markets. All that assistance to Ford’s instate business creates reciprocal obligations—most relevant here, that the car models Ford so extensively markets in Montana and Minnesota be safe for their citizens to use there. Thus our repeated conclusion: A state court’s enforcement of that commitment, enmeshed as it is with Ford’s government-protected in-state business, can “hardly be said to be undue.” And as World-Wide Volkswagen described, it cannot be thought surprising either. An automaker regularly marketing a vehicle in a State, the Court said, has “clear notice” that it will be subject to jurisdiction in the State’s courts when the product malfunctions there (regardless where it was first sold). ... Here, resident-plaintiffs allege that they suffered in-state injury because of defective products that Ford extensively promoted, sold, and serviced in Montana and Minnesota. For all the reasons we have given, the connection between the plaintiffs’ claims and Ford’s activities in those States— or otherwise said, the “relationship among the defendant, the forum[s], and the litigation”—is close enough to support specific jurisdiction. The judgments of the Montana and Minnesota Supreme Courts are therefore affirmed. It is so ordered. Lineup: Kagan, joined by Roberts, Breyer, Sotomayor, and Kavanaugh. Concurrence by Gorsuch, joined by Thomas. Barrett did not participate. Concurrence (Gorsuch, joined by Thomas): Since International Shoe Co. v. Washington, this Court’s cases have sought to divide the world of personal jurisdiction in two. A tribunal with “general jurisdiction” may entertain any claim against the defendant. But to trigger this power, a court usually must ensure the defendant is “‘at home’” in the forum State. Meanwhile, “specific jurisdiction” affords a narrower authority. It applies only when the defendant “‘purposefully avails’” itself of the opportunity to do business in the forum State and the suit “‘arise[s] out of or relate[s] to’” the defendant’s contacts with the forum State. While our cases have long admonished lower courts to keep these concepts distinct, some of the old guardrails have begun to look a little battered. Take general jurisdiction. If it made sense to speak of a corporation having one or two “homes” in 1945, it seems almost quaint in 2021 when corporations with global reach often have massive operations spread across multiple States. To cope with these changing economic realities, this Court has begun cautiously expanding the old rule in “‘exceptional case[s].’” Today’s case tests the old boundaries from another direction. Until now, many lower courts have proceeded on the premise that specific jurisdiction requires two things. First, the defendant must “purposefully avail” itself of the chance to do business in a State. Second, the plaintiff ’s suit must “arise out of or relate to” the defendant’s in-state activities. Typically, courts have read this second phrase as a unit requiring at least a but-for causal link between the defendant’s local activities and the plaintiff ’s injuries. … Now, though, the Court pivots away from this understanding. Focusing on the phrase “arise out of or relate to” that so often appears in our cases, the majority asks us to parse those words “as though we were dealing with language of a statute.” In particular, the majority zeros in on the disjunctive conjunction “or,” and proceeds to build its entire opinion around that linguistic feature. The majority admits that “arise out of ” may connote causation. But, it argues, “relate to” is an independent clause that does not. Where this leaves us is far from clear. For a case to “relate to” the defendant’s forum contacts, the majority says, it is enough if an “affiliation” or “relationship” or “connection” exists between them. But what does this assortment of nouns mean? Loosed from any causation standard, we are left to guess. … The whole project seems unnecessary. Immediately after disavowing any need for a causal link between the defendant’s forum activities and the plaintiffs’ injuries, the majority proceeds to admit that such a link may be present here….Nor should that result come as a surprise: One might expect such causal links to be easy to prove in suits against corporate behemoths like Ford. All the new euphemisms—“affiliation,” “relationship,” “connection”—thus seem pretty pointless. … Perhaps all of this Court’s efforts since International Shoe, including those of today’s majority, might be understood as seeking to recreate in new terms a jurisprudence about corporate jurisdiction that was developing before this Court’s muscular interventions in the early 20th century. Perhaps it was, is, and in the end always will be about trying to assess fairly a corporate defendant’s presence or consent. International Shoe may have sought to move past those questions. But maybe all we have done since is struggle for new words to express the old ideas. ... The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. No one seriously questions that the company, seeking to do business, entered those jurisdictions through the front door. And I cannot see why, when faced with the process server, it should be allowed to escape out the back. The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution’s text and the lessons of history. https://www.supremecourt.gov/opinions/20pdf/19-368_febh.pdf TORRES v. MADRID ET AL. TLDR: When a police officer shoots you, you have been seized (through force) in the meaning of the 4th Amendment, whether or not you are successfully stopped by that seizure or not. Holding / Majority Opinion (Roberts) The Fourth Amendment prohibits unreasonable “seizures” to safeguard “[t]he right of the people to be secure in their persons.” Under our cases, an officer seizes a person when he uses force to apprehend her. The question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The answer is yes: 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. At dawn on July 15, 2014, four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white collar crimes, but also “suspected of having been involved in drug trafficking, murder, and other violent crimes.” What happened next is hotly contested. We recount the facts in the light most favorable to petitioner Roxanne Torres because the court below granted summary judgment to Officers Janice Madrid and Richard Williamson, the two respondents here. The officers observed Torres standing with another person near a Toyota FJ Cruiser in the parking lot of the complex. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres—at the time experiencing methamphetamine withdrawal—got into the driver’s seat. The officers attempted to speak with her, but she did not notice their presence until one of them tried to open the door of her car. Although the officers wore tactical vests marked with police identification, Torres saw only that they had guns. She thought the officers were carjackers trying to steal her car, and she hit the gas to escape them. Neither Officer Madrid nor Officer Williamson, according to Torres, stood in the path of the vehicle, but both fired their service pistols to stop her. All told, the two officers fired 13 shots at Torres, striking her twice in the back and temporarily paralyzing her left arm. Steering with her right arm, Torres accelerated through the fusillade of bullets, exited the apartment complex, drove a short distance, and stopped in a parking lot. After asking a bystander to report an attempted carjacking, Torres stole a Kia Soul that happened to be idling nearby and drove 75 miles to Grants, New Mexico. The good news for Torres was that the hospital in Grants was able to airlift her to another hospital where she could receive appropriate care. The bad news was that the hospital was back in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle. [Torres sued for] deprivation of constitutional rights by persons acting under color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This case concerns the “seizure” of a “person,” which can take the form of “physical force” or a “show of authority” that “in some way restrain[s] the liberty” of the person. The question before us is whether the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person. We largely covered this ground in California v. Hodari D. There we interpreted the term “seizure” by consulting the common law of arrest, the “quintessential ‘seizure of the person’ under our Fourth Amendment jurisprudence.” As Justice Scalia explained for himself and six other Members of the Court, the common law treated “the mere grasping or application of physical force with lawful authority” as an arrest, “whether or not it succeeded in subduing the arrestee.” Put another way, an officer’s application of physical force to the body of a person “‘for the purpose of arresting him’” was itself an arrest—not an attempted arrest—even if the person did not yield. … The common law rule identified in Hodari D.—that the application of force gives rise to an arrest, even if the officer does not secure control over the arrestee—achieved recognition to such an extent that English lawyers could confidently (and accurately) proclaim that “[a]ll the authorities, from the earliest time to the present, establish that a corporal touch is sufficient to constitute an arrest, even though the defendant do not submit.” … Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. Justice Baldwin, instructing a jury in his capacity as Circuit Justice, defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” State courts agreed that “any touching, however slight, is enough,” Courts continued to hold that an arrest required only the application of force— not control or custody—through the framing of the Fourteenth Amendment, which incorporated the protections of the Fourth Amendment against the States. … This case, of course, does not involve “laying hands,” but instead a shooting. Neither the parties nor the United States as amicus curiae suggests that the officers’ use of bullets to restrain Torres alters the analysis in any way. And we are aware of no common law authority addressing an arrest under such circumstances, or indeed any case involving an application of force from a distance. ... We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend. We do not accept the dissent’s invitation to opine on matters not presented here—pepper spray, flash-bang grenades, lasers, and more. Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. … Nor does the seizure depend on the subjective perceptions of the seized person. Here, for example, Torres claims to have perceived the officers’ actions as an attempted carjacking. But the conduct of the officers—ordering Torres to stop and then shooting to restrain her movement—satisfies the objective test for a seizure, regardless whether Torres comprehended the governmental character of their actions. The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force. … Applying these principles to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her. … The officers and the dissent derive from our cases a different touchstone for the seizure of a person: “an intentional acquisition of physical control.” Under their alternative rule, the use of force becomes a seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” This approach improperly erases the distinction between seizures by control and seizures by force. In all fairness, we too have not always been attentive to this distinction when a case did not implicate the issue. But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule. ... Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. A prime example of the latter comes from Brower, where the police seized a driver when he crashed into their roadblock. Under the common law rules of arrest, actual control is a necessary element for this type of seizure...But that requirement of control or submission never extended to seizures by force. … As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. At the most basic level, it will often be unclear when an officer succeeds in gaining control over a struggling suspect. Courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, or only when he slaps on the cuffs. Neither the officers nor the dissent explains how long the control must be maintained—only for a moment, into the squad car, or all the way to the station house. To cite another example, counsel for the officers speculated that the shooting would have been a seizure if Torres stopped “maybe 50 feet” or “half a block” from the scene of the shooting to allow the officers to promptly acquire control. None of this squares with our recognition that “‘[a] seizure is a single act, and not a continuous fact.’” ... The dissent sees things differently. It insists that the term “seizure” has always entailed a taking of possession, whether the officer is seizing a person, a ship, or a promissory note. But the facts of the cases and the language of the opinions confirm that the concept of possession included the “constructive detention” of persons “never actually brought within the physical control of the party making an arrest.” Even the dissent acknowledges that a touch can establish a form of constructive possession. … We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. 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. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Breyer, Sotomayor, Kagan, and Kavanaugh. Dissent by Gorsuch, joined by Thomas and Alito. Barrett took no part. Dissent (Gorsuch, joined by Thomas and Alito): The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel. Until today, a Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it. … the majority picks up where Hodari D.’s dicta left off. It contends that an officer “seizes” a person by merely touching him with an “intent to restrain.” We are told that a touch is a seizure even if the suspect never stops or slows down; it’s a seizure even if he evades capture. In all the years before Hodari D.’s dicta, this conclusion would have sounded more than a little improbable to most lawyers and judges—as it should still today. A mere touch may be a battery. It may even be part of an attempted seizure. But the Fourth Amendment’s text, its history, and our precedent all confirm that “seizing” something doesn’t mean touching it; it means taking possession. Start with the text. The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As at least part of Hodari D. recognized, “[f]rom the time of the founding to the present,” the key term here—“seizure”—has always meant “‘taking possession.’” … Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. The majority’s need to resort to such a schizophrenic reading of the word “seizure” should be a signal that something has gone seriously wrong. … Unable to muster any precedent or sound reason for its reading, the majority finishes its textual analysis with a selective snippet from Webster’s Dictionary and a hypothetical about a purse snatching. The majority notes that Webster equated a seizure with “‘the act of taking by warrant’” or “‘laying hold on suddenly.’” But Webster used the warrant definition to describe “the seizure of contraband goods”—a seizure the majority agrees requires possession. Meanwhile, the phrase “laying hold on” a person connotes physical possession, as a look at the dictionary’s entire definition demonstrates. A “seizure,” Webster continued, is the “act of taking possession by force,” the “act of taking by warrant,” “possession,” and “a catching.” Read in full, Webster thus lends no support to the majority’s view. … Rather than focus on text, the majority turns quickly to history. At common law, it insists, a “linkage” existed between the “seizure” of a person and the concept of an “arrest.” Thus, the majority contends, we must examine how the common law defined that term. But following the majority down this path only leads to another dead end. Unsurprisingly, an “arrest” at common law ordinarily required possession too. … Ultimately, the majority seeks to invoke Samuel Johnson’s dictionary and Payton to confirm only the anodyne point that some sort of “linkage” existed at common law between the concepts of “arrests” and “seizures.” Yet, even here it turns out there is more to the story. The majority neglects to mention that Johnson proceeded to define an “arrest” as a “caption” of the person, “a stop or stay,” a “restraint of a man’s person, depriving him of his own will,” and “the beginning of imprisonment.” “To arrest,” Johnson said, was “[t]o seize,” “to detain by power,” “[t]o withhold; to hinder,” and “[t]o stop motion.” Meanwhile, the sentence fragment the majority quotes from Payton turns out to have originated in Justice Powell’s concurrence in United States v. Watson. And looking to that sentence in full, it is plain Justice Powell, too, understood an arrest not as a touching, but as “the taking hold of one’s person.” … Unable to identify anything helpful in the main current of the common law, the majority is forced to retreat to an obscure eddy. Starting from Hodari D.’s three references to “mere touch” arrests, the majority traces these authorities back to their English origins. The tale that unfolds is a curious one….a bailiff who could manage to touch a person hiding in his home, often through an open window or door, was deemed to have effected a civil “arrest.” And because this mere touch was deemed an “arrest,” the bailiff was then permitted by law to proceed to “br[eak] the house . . . to seize upon” the person and render him to prison. Of course it was farcical to call a tap through an open window an “arrest.” But it proved a useful farce, at least for creditors. ... Yes, the mere-touch arrest was a feature of civil bankruptcy practice for an unfortunate period. But the majority has not identified a single founding-era case extending the mere-touch arrest rule to the criminal context. … The majority implores us to study the common law history of arrests. But almost immediately, the majority realizes it cannot find what it seeks in the history of criminal arrests. So it is forced to disinter a long-abandoned meretouch rule from civil bankruptcy practice. Then it must import that rule into the criminal law. And because even that isn’t enough to do the work it wishes done, the majority must jettison both the laying on of hands requirement and the rationale that sustained it. … To rule as it does, the majority must endow the term “seizure” with two different meanings at the same time. It must disregard the dominant rule of the common law. It must disparage this Court’s existing case law for erasing distinctions that never existed. It cannot even guarantee that its new rule will offer great efficiencies or meaningfully vindicate the penumbral promises it supposes. Instead, we are asked to skip from one snippet to another, finally landing on a long-abandoned debt-collection practice that must be reengineered to do the work the majority wishes done. Our final destination confuses a battery for a seizure and an attempted seizure with its completion. All this is miles from where the standard principles of interpretation lead and just as far from the Constitution’s original meaning. And for what? A new rule that may seem tempting at first blush, but that offers those like Ms. Torres little more than false hope in the end. Respectfully, I dissent. https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf
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Mar 26, 2021 02:19
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surprised only three conservatives wanted to rule that it's not a constitutional violation for cops to shoot you for no reason
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Mar 26, 2021 02:22
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SCOTUS 2021: When a police officer shoots you, you have been seized (through force)
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Mar 26, 2021 02:26
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Countdown to "the bullets that hit you in the spine, neck and head were a lawful seizure/arrest, and therefore you were resisting arrest by randomly getting shot while walking down the street" in 5...4...3...
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Mar 26, 2021 03:37
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Slaan posted:Countdown to "the bullets that hit you in the spine, neck and head were a lawful seizure/arrest, and therefore you were resisting arrest by randomly getting shot while walking down the street" in 5...4...3... When you left the scene of the shooting by ambulance with the police bullet still in you that constituted theft of government property.
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Mar 26, 2021 03:47
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Dameius posted:When you left the scene of the shooting by ambulance with the police bullet still in you that constituted theft of government property.  makes perfect sense
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Mar 26, 2021 04:05
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Slaan posted:Countdown to "the bullets that hit you in the spine, neck and head were a lawful seizure/arrest, and therefore you were resisting arrest by randomly getting shot while walking down the street" in 5...4...3... Nah, you’re resisting arrest if a cop shoots at you and misses
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Mar 26, 2021 04:06
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It’s bullshit that she was railroaded with charges of “aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle”.
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Mar 26, 2021 04:10
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The majority opinion is by the sane people, though, while the dissent is from Gorsuch, Alito, and Thomas, so I'm rather confused.
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Mar 26, 2021 04:18
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Deteriorata posted:The majority opinion is by the sane people, though, while the dissent is from Gorsuch, Alito, and Thomas, so I'm rather confused. The question in front of the court wasn’t those charges. It was “are police shootings an action subject to the fourth amendment to the United States constitution or not?” Torres’ plea on those charges was a failing of the lower levels of justice, not STOCUS.
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Mar 26, 2021 04:21
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Platystemon posted:The question in front of the court wasn’t those charges. It was “are police shootings an action subject to the fourth amendment to the United States constitution or not?” That wasn’t the question (but you’re right that the charges weren’t at issue). The question was: quote:Is an unsuccessful attempt to detain a suspect by use of physical force a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in de- taining a suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold? Deteriorata posted:The majority opinion is by the sane people, though, while the dissent is from Gorsuch, Alito, and Thomas, so I'm rather confused. Alito literally never votes in favor of a criminal defendant. Those three would have said a police shooting isn’t a seizure for fourth amendment purposes unless it results in your physical arrest at that time.
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Mar 26, 2021 04:40
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Unless I'm missing something, doesn't this allow people who are shot at by police an avenue to sue in federal court, regardless of whether the police missed? That seems unequivocally good? Is there some way that counting missed shots as "seizure" could be used against defendants?
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Mar 26, 2021 06:44
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I think it was the shots that didn't miss that count as seizure i.e. if the police shoot you it counts as a seizure, whether they arrest you or not. The dissent is arguing that if you get away, unjustified shooting by the police can't be a constitutional violation. They need to catch and "seize" you. I can kind of see the argument for this but it runs a little too close to 'they don't give out Nobel prizes for attempted chemistry'.
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Mar 26, 2021 08:03
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I’m going to keep calling it “STOCUS” for a while.
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Mar 26, 2021 08:15
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quote:GORSUCH: Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. Gorsuch has a knack for ending up stumping for doofusy counter-takes, but I have a special fondness for this one. Were we to go with his particular pedantic literalism on this one, I feel like he would have successfully argued the law into a condition where if a police officer attempting to apprehend a subject you may or may not be and shoots you dead on sight for even the most absurd premise, but does not otherwise put a hand on you, the courts must acknowledge that this cannot count as 'unreasonable search or seizure' because you haven't been seized or searched according to Gorsuch
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Mar 26, 2021 17:35
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I'm not how the 4th got wrapped up in this case at all. They didn't go to her house to shoot at her, they went to serve a valid warrant and shot because she tried to run them over. Wtf does search and seizure have to do with that?
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Mar 26, 2021 18:07
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ilkhan posted:I'm not how the 4th got wrapped up in this case at all. They didn't go to her house to shoot at her, they went to serve a valid warrant and shot because she tried to run them over. Wtf does search and seizure have to do with that? To be fair though serving a valid warrant usually involves shooting the person nowadays so its a bit of a grey area....
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Mar 26, 2021 18:15
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