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Opinion Analysis ByJeffrey Bellin on Mar 25, 2021 at 5:15 pm

Against a backdrop of increasing national attention to police violence, the Supreme Court on Thursday issued an opinion in a closely watched criminal-procedure case that clarifies the meaning of the term seizure.

The Fourth Amendment provides important constitutional limits on abusive policing. These protections take shape in two ways: limits on the introduction of evidence obtained unconstitutionally, and civil suits against police who violate constitutional rights. But the Fourth Amendment does not regulate policing generally. It only prohibits unreasonable searches and seizures. Thats why the courts ruling in Torres v. Madrid preserving a broad understanding of the term seizure has important implications for regulating use of force by police.

The case concerned an attempt by two New Mexico police officers to stop a car driven by Roxanne Torres. The officers, who were trying to execute an arrest warrant for another person, approached Torres and her parked car. When they attempted to speak with her, Torres began driving away. Claiming to fear for their safety, the officers shot at the car, injuring Torres, who then drove off. The question the justices resolved on Thursday was whether this unsuccessful effort to stop Torres was a seizure. The officers claimed that people are seized only when they are stopped, while Torres kept going. The U.S. Court of Appeals for the 10th Circuit agreed, dismissing Torres civil rights claim against the officers for violating her Fourth Amendment rights.

In a 5-3 opinion written by Chief Justice John Roberts, the majority reversed, concluding that the officers seized Torres even though she subsequently fled. The outcome fits neatly into the closest precedent, the 1991 case California v. Hodari D. In that case, the court explained that [t]he 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. (Emphasis added.) Pointing to this and other language in that case, the chief justice notes in the Torres opinion that [w]e largely covered this ground in California v. Hodari D.

Roberts takes pains, however, to set the opinion on its own feet. Over a strident dissent, he explains that whether or not the court is bound by stare decisis (the justices on-again-off-again efforts to follow precedent), the justices independently reach the same conclusions here. The majority opinion does so on two primary grounds: history and text.

History often comes up short in Fourth Amendment cases because policing as we know it was almost non-existent in the 18th century. The majority insists, however, that this time, the cases and commentary speak with virtual unanimity on the question before us today. But the majoritys certainty rings hollow when it identifies the closest decision as the 1605 Countess of Rutlands Case. In that case, the serjeants-at-mace were executing a debt-collection judgment against Isabel Holcroft, an English noblewoman. The sergeants touched Holcroft with (you guessed it) a mace, while exclaiming we arrest you, madam. The majority explains that since an arrest is undoubtedly a seizure and getting touched with a mace is like getting hit with a bullet, this history points the way toward todays holding.

To be fair, the majority cites other old cases and treatise excerpts. But the dissent by Justice Neil Gorsuch, which is joined by Justices Clarence Thomas and Samuel Alito, points out that many cases of the era involved esoteric debt-collection practices. For example, debt collectors could only break into debtors homes if they touched them first, often accomplishing this by reaching in through a window! And all the cases involve the laying on of hands (or maces), not guns or projectiles. Gorsuch scores rhetorical points when he scolds the majority for wandering about the vast legal library of the common law, randomly grabbing volumes off the shelf, plucking out passages, scratching out bits and crafting a new pastiche. But Gorsuchs argument is really a critique of the limits of originalism in this context, not the particular rule announced in this case.

The majoritys textual interpretation is more straightforward. It recognizes that seizures most obviously occur when a person is stopped. But the majority points out that it is not ruling that Torres was seized from the point of the shooting onward. Instead, Roberts writes that the officers seized Torres for the instant that the bullets struck her. (Emphasis added.) Quoting Justice Antonin Scalia in Hodari D., the majority explains that a seizure is a single act, and not a continuous fact. Thus, at the time the Constitution was adopted, as now, an ordinary user of the English language could remark: She seized the purse-snatcher, but he broke out of her grasp. In prior cases, the court similarly explained that a seizure is the application of physical force that in some way restrain[s] the liberty of a person. Here, considering that Torres was shot twice in the back and suffered physical injuries, it seems reasonable to conclude that a restraint on her liberty, and thus a seizure, occurred.

The opinion offers two surprises. The most important is the majoritys broad holding. The majority goes out of its way to craft a clear line that reaches beyond the facts of this case. Both at the beginning and end of the opinion, the court announces: 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. Notice that this captures not just significant restraints on liberty, but any touching at all. This is no oversight. Roberts downplays the implications of this breadth by explaining:

While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get ones attention will rarely exhibit such an intent.

The majority is right that the intent requirement eliminates some minor touching from the seizure definition. But not all. Small intrusions, such as taps on the shoulder, will constitute seizures under the majoritys reasoning if they are intended as a prelude to restraint, even when the tap-ee flees into a crowd. The dissent hints at other scenarios that may come within the broad rule: laser beams that damage the retina, pepper spray that irritates the lungs, and loud noises that damage a suspects ear drums. Those are harder cases than the one presented here, and the court appears to (at least arguably) resolve them all with its broadly worded holding.

The second surprise is the amount of disagreement. Since the case followed directly from Hodari D., a 7-2 textualist/originalist opinion penned by Scalia, some observers expected the court to come to greater agreement. Instead, the dissent spends 26 pages (nine more than the majority opinion) explaining why Scalia and the court were wrong in 1991 and Roberts and the majority are wrong in 2021. The dissent not only scoffs at the chief justices arguments but accuses the majority of outcome-determinative reasoning: an impulse that individuals like Ms. Torres should be able to sue for damages. Roberts offers a pained response: There is no call for such surmise. [W]e simply agree with the analysis set forth thirty years ago by Justice Scalia, joined by six of his colleagues, rather than the competing view urged by the dissent today.

The bright-line rule announced by the court signals that remaining questions will now be the responsibility of the lower courts. For Torres, her civil rights claims against the officers can continue, although, as the majority notes, she will still need to overcome several other obstacles such as showing that the seizure was unreasonable and that the officers are not entitled to qualified immunity in order to ultimately prevail.

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Divided court issues bright-line ruling on Fourth Amendment seizures - SCOTUSblog

UI Law alumni use their class Street Law to teach high school students about their Fourth Amendment rights.

Crystal Pound and Alex Lodge, both University of Iowa alum, have built on their efforts to inform the community on their rights protected by the Fourth Amendment which prohibits unreasonable searches and seizures by bringing that education into classrooms across the state.

Pound and Lodge recently earned a nonprofit status for their organization, Justice101, which partners with Iowa schools to teach young people about the Fourth Amendment. The curriculum educates young people on their rights when interacting with police, and what law enforcement legally can and cant do. Its goal is to alleviate anxieties of young people when interacting with the police, especially for students of color.

Justice101 is an extension of the Iowa chapter of Street Law, a class on Fourth Amendment rights that Pound and Lodge brought to Iowa following the killing of Michael Brown in Ferguson, Missouri. The first class was taught at City High in March 2016.

Pound, a co-collaborator of Justice101, practices law in Cedar Rapids. Pound helped found Street Law and Justice101 during her time at UI Law School, which she graduated from in 2016.

Pound said that Justice101 aims to create an equal interaction between police and citizens by informing the community of their rights when they encounter police.

I think games are only fair when everyone knows what the rules are, Pound said. One goal is to educate the students so that when they come into contact with law enforcement, they know whats allowed and whats not allowed and if something happens that isnt allowed, they know how to advocate for themselves later with their legal counsel.

A 2016 graduate and current patent attorney, Lodge said he goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

RELATED: In Focus | Iowa police body camera video sometimes revealing if the public is allowed to see it

In Iowa, Black residents are much more likely than white residents to face use of force by state police officers. Although Black residents make up about 4 percent of Iowas population, 24 percent of use of force incidents were reported against Black people by officers in the Iowa Department of Public Safety in 2018 and 2019.

Lodge said the best way to support Justice101 is to donate through the organizations website and spread the word about the program.

If you are in the education system or you work with vulnerable populations, particularly those who might be at risk of having a Fourth Amendment rights violation, please feel free to contact Justice101 to get the program to come out to talk to your community members, he said.

Prior to the COVID-19 pandemic, Justice101 presented its Street Law class to students at City High School in Iowa City, and Metro High School in Cedar Rapids, Iowa. Now, the founders are working to create virtual classes to continue their work in an online format.

Alex Lodge is a patent attorney who graduated from the College of Law in 2016. Lodge is a co-founder of the Street Law program and a co-collaborator of Justice101. The goal of Justice101 is to educate the community, especially Black residents, on how complicated the law is and how to be protected during police interactions, Lodge said.

It was apparent that we were experiencing a disproportionate amount of police contact particularly with not only Black students at UI but Black residents in the city of Iowa City, Lodge said. Justice 101 is continuing that effort and continuing to provide a resource to the community with respect to educating our community about Fourth Amendment rights.

Lodge said the best way to support Justice101 is to donate through the organizations website and spread the word about the program.

If you are in the education system or you work with vulnerable populations, particularly those who might be at risk of having a Fourth Amendment rights violation, please feel free to contact Justice101 to get the program to come out to talk to your community members, he said.

Brian Farrell, a UI College of Law lecturer, and Justice101 board member, said that the pandemic has brought forth the biggest challenges for the organization.

I think the pandemic has thrown a wrench into the efforts to take the curriculum and the model that had already been developed and re-establish and expand it, Farrell said. The idea of virtual delivery creates opportunities to allow it to not be geographically restricted, but at the same time potentially create some initial barriers, just in terms of the resources to get up and going.

Farrell said that Justice101 is valuable because it teaches students about the Fourth Amendment in an interactive and informal way that creates meaningful connections in the community.

Justice101 provides students with an in-depth explanation of their rights when interacting with law enforcement that is often not taught elsewhere, Farrell said.

I dont think our civic education gets into practical aspects, Farrell said. Im guessing that in most cases they havent ever thought about or talked about how that plays out in a practical sense until perhaps theyre in a situation where they are confronted with some restriction or a challenge to their rights.

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UI Law alumni create nonprofit to educate the community on Fourth Amendment rights - UI The Daily Iowan

After a three-year battle in lower courts, a constitutional question stemming from a drunk driving citation will be heard by the Ohio Supreme Court.

A woman argues she was wrongfully stopped by an Ohio State Highway Patrol sergeant after someone shouted, "You need to stop that vehicle. That lady is drunk."

According to court documents, it turns out Sherry Tidwell was drunk as she was pulling out of a parking stop at a Symmes Township Speedway on Nov. 11, 2017.

However, she has successfully argued that the person whoshouted to the officer was an anonymous tipster. The law states police are requiredto furtherinvestigate anonymous complaints before they can stop and search someone, according to Northern Kentucky University constitutional law professor Jennifer Kinsley.

"He could have followed her. He could have radioed for backup and had someone else follow her," Kinsley said.

She said the protocols are in place so people don't use police reports as a spiteful way to get revenge on people.

In court, the sergeant said the man who shouted at him had been told to do so by the Speedway clerk who had sold Tidwell alcohol. The man who shouted has never been identified, according to court records.

Prosecutors say the tip came from an "informed citizen." Former Hamilton County prosecutor and judge Mike Allen explained informed citizens are presumed to be telling the truth because they could face charges if they make false allegations.

This is the issue the Ohio Supreme Court will focus on: who did this tip come from?

The Ohio Public Defender's Office and Attorney General's Office have weighed in on the debate filing opposing briefs in the case.

The public defender argues that allowing stops prompted by anonymous tips does not meet the threshold for probable cause.

"(It) not only eviscerates the protections provided by the Fourth Amendment, it defies reason," the public defender's office wrote.

Attorney General Dave Yost's office disagrees.

"Neither the federal Constitution nor the Ohio Constitution requires an officer credibly tipped off about a drunk driver to let that driver violate a lawpotentially killing someone in the process,"Yost's brief states.

From an outside perspective, it may seem Tidwell couldget off on a technicality, but both Allen and Kinsley said cases like these are important.

"There are a set of rules. Police officers have to follow those rules," Allen said."They can say it was a technicality, but when you're talking about search and seizure it's more than a technicality. It really goes to the person's fundamental rights."

The Ohio Supreme Court will hear oral arguments in this case on March 30.

"Courts have always said it's better to let a guilty person go free than to put an innocent person in person," Kinsley said."It's in cases like these that we get to play those values out."

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Is it constitutional for an officer to stop a driver if someone shouts 'that lady is drunk'? - The Cincinnati Enquirer

In 2015, United Farm Workers (UFW) came onto Cedar Point Nursery, a strawberry operation located on the California side of the California/Oregon border. Owner Mike Fahner filed a complaint with the California Agricultural Labor Relations Board, saying that the union violated that states law for union access to farms by not sending written notice and disrupting work in progress. UFW countered that those present that day on the farm were Cedar Point employees, not outsiders. The Board dismissed the complaint.

Fahner decided to file a lawsuit against California, challenging its 1976 law allowing unions access to private farms for three hours a day for 120 days of the year. After defeats at the state and district level, Cedar Point lawyersargued the case in front of the Supreme Court earlier this week, on March 22.

You can listen to a recording of Cedar Point Nursery v. Hassid at Oyez.org. Click on the speaker icon in the right column to both read the transcript to hear the audio.

As is the norm with any Supreme Court case, Cedar Point Nursery v. Hassid is about a larger issue than what happened in 2015.

Joshua Thompson, an attorney with the nonprofit Pacific Legal Foundation who represented Cedar Point before the Supreme Court, is arguing that the law violates the U.S. Constitution. California lawmakers created the 1975 right to access rule to give unions a chance to ensure migrant workers had decent working conditions, were aware of their rights, and to recruit farm workers for the union.

Not surprisingly, many see overturning the law as a threat to union organizing on every kind of job site across the U.S. And others believe this court case can allow property owners to keep many more people off the property.

Im sure many restaurants would say the same thing about food inspectors and say, you know, we want to allow customers on our property, we just dont want to allow food inspectors to check to see if there are rats running around the kitchen, Nikolas Bowie, a Harvard Law School professor and expert in labor law, told ABC News. That ultimately is whats at stake here.

The actual arguments before the Court centered around legal terms and how previous Court rulings shed light on the case. For example, the Justices examined how forcing property owners to accept outsiders is legally similar to the government taking easements from landowners without compensation.

Hidden in that seemingly minor discussion, however, is a framework that will allow this single case to determine when landowners must give outsiders access to their property.

When Thompson faced the Court, the Justices grilled him on why his argument to declare the California law in violation of the Fifth Amendment wouldnt also bar inspectors.

He argued that the government was granted this type a right written into the Constitution, saying it was part of the common law that our legal system is built on. The California law, he says, forces property owners to allow access to third parties with outside of that Constitutional framework.

With respect to the governments authority to search, that was certainly present at common law. And the Fourth Amendment put limits on the governments power to search, but it certainly recognizes that this a power that the government possessed at all times and certainly at the time of the California finding, Thompson said in response to a challenge from Justice Neil Gorsuch.

When Michael Mongan, the lawyer arguing on behalf of California, took his turn before the Supreme Court, he argued that the law carries out the purpose of the Fifth Amendment. He says the limited times the law grants unions provides the needed balance to property owners rights.

We will not hear the Supreme Courts ruling on Cedar Point Nursery v. Hassid until early June, ABC News reports. But several news outlets who regularly report on the Supreme Court predict it will rule in favor of Cedar Point.

Most of the justices conservative and liberal agreed the right to access rule, adopted in 1975, appears to violate the property rights protected by the Constitution, the LA Times reports.

Reporters made their predictions based on what the Justices said to the California lawyers defending the law.

It seems to me that letting the government come and use your land for non-business purposes seems to be exactly what the takings clause was intended to avoid, Justice Sonia Sotomayor said. The takings clause is part of the Fifth Amendment.

Justice Brett Kavanaugh pointed out that previous Supreme Court rulings seem to favor Cedar Point Nurserys stance.

Carol Miller is the editor of American Vegetable Grower, a Meister Media Worldwide publication. See all author stories here.

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Ag Labor Case Reaches the Supreme Court Heres What You Need to Know - Growing Produce

David H. Gans, Opinion contributor Published 7:44 p.m. ET March 22, 2021

The footprint of American policing is vast.

And policeofficersrespond toa host ofproblems that have nothing to do with catchingpeople suspected of crimes. Fundamental questions about just how far police power should extendare at the core of acritically important case,Caniglia v. Strom, thatthe Supreme Court is slated to hear Wednesday.

This case has gone unnoticed so far among a Supreme Court docket loaded with important cases concerning everything fromhealth care, voting rightsandreligious exemptionsto anti-discrimination laws.But the issue inCaniglia whether policeofficersmayinvadea personshomewithout a warrantor without suspicionof criminal activity,simply becausetheyare pursuing a community caretakingfunction could notbe more important.

The questionthe justices must answeris far reaching:Is our home still our castle?

The Supreme Court(Photo: J. Scott Applewhite/AP)

"When it comes to the Fourth Amendment,the home is first among equals,as Justice Antonin Scaliaput itin a2013 ruling. If police canentera persons home without any suspicion of criminal wrongdoingsimply because they claim to be taking care of the community,the Fourth Amendment would be close to a dead letter.Ourright to be securewould existonly at the whim of the police.

The police officerswho broke into the home of Edward Canigliaareurging the court, with therather surprisingsupport of the Biden administration,tobless a massive expansion in the power of policeto enter the home.They claim that police officers may invade the hometo protect thepurportedsafetyofthecommunityifthe police actedreasonably. As a fallback, they argue that the police officersareprotected by qualifiedimmunity, a doctrine that prevents holding police officers and otherslegallyaccountable.

Embracingsuch an open-ended formulawould grant police officers theunbridleddiscretion the Fourth Amendment was designed to prevent.The Fourth Amendment promised to end indiscriminate searches and seizures of the home.Canigliatests whether the justices are willing to enforce the central idea at the heart of the Fourth Amendment: the need for strict limits on excessive police discretion.

In theory,communitycaretakingsoundslike areasonablejustification.But the difficulty is that it lacks any coherent limiting principleand wouldallow the police to invade the privacy and sanctity of the homein a startling array of circumstances. Expanding the power of the police to break into a persons home particularlyforpetty matterssuch asinvestigatingnoise complaints opensthe door tohorrificpoliceabuse andviolence.These fears are hardly theoretical.In recent years,police have killeda number ofinnocent Black people in their homes. Expanding opportunities forwarrantlesspolice entryinto the homehas the potential to end in even moreloss of life.

In the wake of the killing of George Floyd, who died after an officer put a kneeon the unarmed Black man's neck,Americans have been reckoning with the scourge of police violence that has resulted in the taking of so many innocent lives in communities of color.One of the most important lessons we have learnedin the past yearisthatthepolice are engaged in many tasks that have little to do with crime fighting and do not require the use of force. We need to findways to limit the circumstances in which we rely on the police, who are given immense powers by the state touse force and inflictharm.

Sanctioning a massive expansion in the power of the policeto invadethe homebasedona nebulous interest in "community caretaking" would move the law in the exact opposite direction. It would place the Supreme Courts imprimatur on the broadest possible conception of the power of the police toviolateour security and privacy in the home.To be sure, such unbridled police authority would fall hardest on the poorest and most marginalized communities, but the threat cuts across ideological linesin unexpected ways.Amicus briefsfiled in support of Canigliarangefrom Gun Owners of America, the Second Amendment Law Center, Institute for Justiceand the Cato Instituteto the American Civil Liberties Union, the National Association of Criminal Defense Lawyersand my organization,theConstitutional Accountability Center.

TheFounding generation considered the hometo bea place of perfect security.Thequestion now is whether the Supreme Court will respect the text and history of the Fourth Amendment, or invent a new exception that would open the floodgates to police entry of the home.

Thejusticesshould make clear that policeneed a warrant and probable cause of criminal wrongdoing or emergency circumstances before theyentera personshome.

DavidH.Gans is civil rights director at Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitutions text, history and values.

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In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant? - USA TODAY