Supreme Court expands meaning of 'seizure' under 4th Amendment | Hacker News Reader

Supreme Court expands meaning of 'seizure' under 4th Amendment

latimes.com

96 pointsgscott138 comments

I of course don't have all the facts of the case, but at first glance it seems unreasonable that a fleeing suspect (and in this case not a suspect at all) is actually shot multiple times. Is it OK to shoot fleeing suspects?

It is of course possible that she charged them or something, like I said don't have all the facts here, just wondering if that is OK.

Edit: I was not trying to make a value statement (although I think it’s wrong), but wondering what the law is. That got answered, so thank you.

> Is it OK to shoot fleeing suspects?

This is the job of the legislature (EDIT: and elected executive). Not the court. The court decides if it’s legal. Blurring those lines is how you ruin the rule of law.

Sadly the division responsibility of the government branches do not match what you are taught in 6th grade government class. The overwhelmingly VAST majority of laws are passed by the executive branch. The common law system uses judicial precedence to determine how to rule in cases which can also be considered establishing law. The legislative branch has the purse strings and motivation to not take a hard stance for or against any piece of legislation.

> VAST majority of laws are passed by the executive branch

Through delegated lawmaking. When agencies overstep those boundaries, the courts have been more than happy to strike them down.

And to be fair, my statement should have included the executive. It should not include the judiciary, who have a more limited--albeit equally powerful--role in our government.

Historically in the US, the judiciary has interpreted laws, and those interpretations are codified as case law and create precedents that bind future court actions in many, if not most, cases.

We could argue about scope, but we can’t really argue about whether the power exists. And that’s to say nothing of SCOTUS, which gets to interpret complex notions like “freedom”, “liberty”, “search”, “privacy” and so forth as used in the constitution, laws passed by congress, etc.

Correct, common law courts make law. That doesn't mean they decide if a thing is right or just or moral or okay. Coloring within the lines versus drawing new ones. The boundary is blurry. But blurry doesn't mean nonexistent.

If nothing else, the freedom to not get shot is fairly obviously protected under the ninth amendment. It's probably also covered by the "unreasonable" part of "unread seizure." Either way, it is well within the scope of the courts.

> the freedom to not get shot is fairly obviously protected under the ninth amendment

These issues are complicated. If you think something is fairly obvious, you are missing colour. (My feelings are different for a legislator.)

My freedom to not get shot interferes with your freedom to be protected by police. Until recently, criminals were hanged by county legal functions. That line has shifted. Policing in America is too violent, but it is not apparent that it is illegally violent.

All I'm arguing is that the court already has the right to rule over whether it's OK to shoot fleeing suspects. This isn't blurring any line, our constitutionally protected rights are being challenged.

Also, the court has gone out of its way over the past 70 or so years to carve out standards protecting and empower police which aren't outlined anywhere in statute or the constitution.

For example, Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up.

Another is Gonzales v. Raich In which the court decided the federal government can sieze, destroy and regulate marijuana grown for personal medical use because the 4th amendment allows the federal government to regulate interstate trade. And one person's personal supply would prevent them week my it on the interstate market. That's like saying the federal government can stop your grandma knitting a cap for your baby because it affects the interstate baby clothes trade. Talk about activist judging. That reasoning is two sizes too small.

People like to believe there is an umpire at the end of the day that can "objectively" interpret law. It's why textualism and originalism have become so popular. The idea is comforting. But like most decisions everyone makes, the justices feel, decide and justify in that order.

> Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up

Terry turned on the interpretation of the word "unreasonable."Prior to that, the "fruit of the poisonous tree" doctrine, which prevents illegally-collected evidence from being used in court, another interpretation, would have prevented a cop searching-and-seizing an M-16 on Broadway from arresting, charging and convicting its surreptitious holder.

I think the Court erred in this. But it was far from wanton judicial activism. (Which to be fair the Court has engaged in.)

> there is an umpire at the end of the day that can "objectively" interpret law

Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.

I agree it's absurd that you could find someone with an illegal weapon and not be able to arrest them.

But it's equally absurd to interpret the fourth amendment as merely requiring a cop to say they 'thought they smelled weed' for the entire amendment to be nullified.

I don’t think it is quite obvious whether you can charge someone with an illegal weapon you found. If the search is illegal, I’d say the officer must answer for it. The officer, not the suspect with the illegal weapon, must go to prison. I too can probably find at least one person with something illegal if I stop everyone and search them for no reason.

Worse, I’ve heard people ask if the police has a search warrant before allowing them to search their cars on a traffic stop be subjected to many hours of being stopped by the side of a highway followed by a K-9 unit which scratches the whole car based on where the handler taps on the car.

The officer doesn’t care because they get paid for the whole time they are there. What about the car driver and other occupants though? What if you are on your way to work and fired because you are late because the police stopped you? Why don’t I deserve to get paid for my wasted time?

Everyone agrees with that. What we don't agree about is what is an acceptable way for police to "find" a perpetrator within their right under the constitution.

> I think the Court erred in this. But it was far from wanton judicial activism.

I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form.

They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law.

They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else.

If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist".

> Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.

This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.

> The constitution doesn't outline what a search without a warrant should look like.

Only because a search without a warrant is by definition not backed by any legal authority, and without legal authority the only way they get to do the search is with the owner's permission. A "search warrant" is nothing more or less than legal authorization to perform the search—whatever form that authorization might take. Any law authorizing a search would itself be a warrant (though perhaps an unconstitutional one), which implies that a law authorizing "warrantless searches" would be self-contradictory.

> Only because a search without a warrant is by definition not backed by any legal authority

Except this is exactly what Terry v. Ohio is about. It defines "stop and frisk" type searches under "reasonable suspicion" as constitutional despite the fact that the officer does not get a warrant.

That just means the court itself issued a warrant by granting permission to perform the search, whether they called it that or not. However, that warrant doesn't meet the constitutional requirements—it lacks probable cause supported by oath or affirmation, and doesn't define the specific places to be searched or items to be seized—which means the court itself violated the Constitution in issuing it.

Uh yeah, I agree that Terry is a bad decision. That's pretty much how I started this thread. I think it's pretty semantical though to debate whether the court made a bad decision because they were defining a warrantless search or because they were defining warranted searches that don't meet the requirements set by the constitution.

Are you sure they do in this case? Appeals happen as part of a complex process, and it's possible the question of whether it's OK to shoot a fleeing suspect may not have been before the Court directly.

The Supreme Court has more power to go beyond the question before them than other courts do. But that's mostly because there's nobody to challenge them when they do. For the most part, they avoid ruling too broadly.

If the legislature makes a law saying it's OK to shoot an innocent person, the courts should clearly be able to rule on whether that law violates our rights. I'm not 100% sure they do have that ability, but I find it hard to think of why they shouldn't be able to rule on the matter.

The court first needs a case before them. And appeals aren't just "do-overs", they often have a specific question to settle.

Here, the question seems to be "is shooting this person under these circumstances a form of seizure" not "is shooting this person under these circumstances Constituional/good/OK".

The problem there is that it's already been ruled the police do not have to protect you.

So I don't know how you square that with the idea that someone has a freedom to be protected by police, who in turn are free to elect not to do that.

My freedom to be protected by the police includes being able to not be protected by the police when I don't want to.

I don't think this freedom to be protected by the police is a thing

Our cops are with disturbing regularity murdering our citizens and robbing them on the highway. The majority of civil asset forfeitures are small potatoes stolen by cops without a charge leveled.

We halfway between Western Europe and a corrupt former soviet republic.

This is a great polemic, but irrelevant to the law. I believe we need laws prohibiting what’s going on. I don’t think we turn the courts into unelected legislators to do that.

And what does that mean? For 170 odd years the constitution has guaranteed people representation in court. But until Gideon v. Wainwright in 1963, if you were broke, your chances of getting any kind of representation varies greatly from one state or county to the next. Finally, a fairly activist court decided to interpret that right as a specific literal individual civil right. And one of the most well known aspects of our court system is born. One which we tout every time we question the ethical qualifies of other countries.

But why did it take so long. Why, when the court was less activist could this not be read literally and universally as we so clearly think it reads today. If it's just about," interpreting the constitution" and if there was some better time when judges knew their place, why couldn't they see it?

You can say the same about aspects of the first amendment, the second, the fourth and many others. Practically everything we say is great about the American legal system and our civil liberties owes to a judge acting a bit like an activist primarily between the years of 1930 and 1970.

Courts are already unelected legislators; the least they could do is enforce the Constitution.

The real kicker here is "unreasonable." Cops shooting a fleeing suspect assuming that person is "dangerous" will be found reasonable. Cops shooting someone who talks back at them is already resisting arrest.

The legislative branch has produced first and foremost the constitution. It is just and lawful. Even dissenting justices find this lawful thus it is remarkable that you should disagree. The court should consider the constitution, state law, and the body of relevant cases

> legislative branch has produced first and foremost the constitution

This is prima facie wrong. The legislature is co-equal with the executive and judiciary. “We the people” are the technical authors of the Constitution.

When was the last time "We the people" changed the Constitution in a technical way that left no room for interpretation by SCOTUS?

Well SCOTUS isn't addressing any of that, just ruling that she can sue. Now she gets a case and can try to prove "unreasonable".

> Is it OK to shoot fleeing suspects?

That question lacks validating context.

According to activity in Atlanta last year the answer is generally no even if the suspect remains armed and in prior moments was in a physical altercation with police. However, if the suspect remains an imminent threat to anyone, such that they continue to point their weapon at people as they are fleeing then I would say they remain an active imminent threat and thus can be shot by law enforcement. That is an extraordinarily narrow and unlikely scenario though.

Either way it is a rush judgment call in the field and all shootings between people demand investigation. People, even police, are not above the law and are not granted special exceptions of hostility, but they are obligated to put themselves at risk for the protection of all parties which warrant additional considerations in review.

This is just wrong. Police are clearly above the law and it has been confirmed many times that they have literally ZERO obligation to put themselves at risk or protect you (at least in the US).

There have been FIVE murder convictions of police officers since 2005: https://www.statista.com/statistics/1123386/convictions-poli...

Five minutes of research shows the Supreme Court has confirmed that police have no obligation to protect: https://www.barneslawllp.com/blog/police-not-required-protec...

Your law source misinterprets, possibly even misrepresents, that Supreme Court decision.

In summary the court said: The court opinion, by Chief Justice William Rehnquist, held that the due process clause protects against state action only. Police action was never mentioned or effected by that case.

Here is due process (5th Amendment): https://en.wikipedia.org/wiki/Due_Process_Clause

Due process protects individuals from intrusion by the state. In that vein the case effectively says state agents without policing authority are not obligated to intervene as police would against private citizens.

If they are pointing a weapon at people and present a danger, you end up with the word 'fleeing' not actually meaning anything at all in the initial sentence.

It's also not true that police are obligated to do anything. They don't face any liability if they decide not to engage with a violent suspect. They might lose their job, but that's an ongoing choice they make, not an obligation.

> They don't face any liability if they decide not to engage with a violent suspect. They might lose their job, but that's an ongoing choice they make, not an obligation.

I wanted to say that this is hyperbole, but it's just an obviously flagrant misuse of a word.

Rules of conduct that dictate a profession are obligations. https://en.wikipedia.org/wiki/Obligation

Okay, fine, they have no legal obligation to engage with a violent suspect.

I guess I thought that's the context you were using the word in, here where we are discussing how the law applies to police.

Software developers do not have obligations aside from do the minimum dictated by your boss to not be terminated, so I suspect the concept of obligations is foreign to most software developers.

In most other professions there exists licensing and such licensing establishes rules of conduct. Violation of such results not just in termination of a job but failure to practice, usually forever. In those professions obligations are essentially laws, except violating such may not, but can, result in incarceration. Instead they will just be poor and forever unemployable in their invested trade.

Don't want to talk about what police are (actually) legally obligated to do then?

>> People, even police, are not above the law and are not granted special exceptions of hostility,

That's literally what qualified immunity provides; in addition to all the special laws they lobby for that undermine the rule of law e.g investigating themselves, reviewing footage of their crime prior to giving testimony etc.

https://en.m.wikipedia.org/wiki/Qualified_immunity

Qualified immunity is a shield from civil suits not criminal liability.

For example if paramedics are performing life saving functions and the injured party still dies those paramedics shouldn’t be at risk of law suit attempts to save life. The consequence is paramedics would let people die without life saving actions in full knowledge that in most circumstances their actions would prevent death because there is great personal financial liability for performing their jobs in some rare circumstances.

>> Qualified immunity is a shield from civil suits not criminal liability.

"generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts."

https://www.americanbar.org/groups/public_education/publicat...

It's not a crime if there is no precedence; cannot establish precedence because there is no precedent.

Sounds like immunity to me; but please, feel free to point me to the high number of court cases of criminal cops held accountable in a court of law.

You should also send that to the american bar association; they are clearly wasting their time pursuing criminal justice reform for the complete lack of accountability.

Except in practice police are above the law. Prosecutors refuse to prosecute, bias grand juries, etc.

There are several (many?) cases where given a certain set of circumstances officers are allowed to shot an unarmed fleeing individual. One that immediately jumps to mind is an inmate attempting escape from prison. Even in blue states correctional officers have legal authority to shoot prisoners attempting escape. (PS I’m not a police officer or a CO.) these are laws on the books. They can be changed (if you think they should be).

In my mind, an escaping convict is not the same as a "fleeing suspect" though (the term the GP used). A convict has already had its day in court, so the presumption of innocence doesn't apply.

Hard disagree here. Let's assume that we know for sure that the person escaping prison was tried and convicted in court even though that might not actually be the case.

The crime they're now committing is escaping jail/prison which is something they haven't had their day in court for yet. But fine, let's assume that in the terms & conditions for escaping jail/prison include a default presumption of guilt and you don't need a second hearing.

Is the punishment for escaping jail/prison death or injury? Nope!

Prison is the most total and comprehensive control over an individual that one can implement, short of brain-in-a-jar fantasies or outright execution. Violence, and the threat of injury or death, are irredeemably and inseparably part of any prison system. Prison would not be prison if an inmate could safely leave.

You may hold an ideal of presumed innocence in society at large, but prison is the implementation of determined guilt. Failing to acknowledge that is a disservice to those in bondage.

> Violence, and the threat of injury or death, are irredeemably and inseparably part of any prison system.

Or it could just not be. We as a people get to ultimately decide if this is the case. My ideal prison system would just “you’re grounded” but for adults. You can go to your job, or go to school, but you’re monitored and have to report to prison right after. To me it’s a very natural escalation of house arrest, treats prisoners with more dignity, and doesn’t screw them for the rest of their lives.

Yes fine we have to deal with people who are an immediate threat to the people around them. But that’s the exceptional case in the US prison system and can go by different rules.

Locking people in cages is so stupid. Like even if you have no empathy towards prisoners as people it makes no sense to waste their lives when they could be contributing to society.

Other nations somehow manage with prison systems that don't just shoot convicts who are trying to escape. I believe there are even nations where trying to escape from prison (or successfully escaping) is not a criminal offense itself.

Not everyone in jail have had thier day in court. I dont know if there are different rules for different types of incarceration facilities.

Jail and prison are often used interchangeably by general society, but they actually refer to different things. Jail is generally temporary place of confinement for those awaiting trial or for minor crimes with short sentences. Prison, on the other hand, is a more "permanent" incarceration facility where inmates have been tried and convicted of crimes.

Source: https://www.merriam-webster.com/words-at-play/jail-vs-prison...

Tried and convicted of crimes or bullied by police officers into accepting some minimal sentence via plea bargain, even if they had no relation to the crime at hand

Thanks, I was mostly just wondering what the law is and what could have happened here. I don’t think police, or correctional officer, should ever shot at someone running away. Perhaps I’m naïve.

A friend was an LAPD detective for 30 years. He was involved in two fatal shootings, and we talk a lot about his days on the beat.

He said, without exception, the only time he can draw and use his firearm is if "he had immediate fear for his own life (or the life of another)" - he said they're trained to say those exact words when questioned about why they used lethal force. Shooting someone because they're running away, or swearing, or not cooperating is VERY strictly not allowed.

Whenever I hear of a person shot running away, or a person with their hands in the air I suspect there will be very big problems.

It would go a loooooong way if the cops in this country would stop reflexively circling the wagons and actually make it abundantly clear that this kind of thing is unacceptable. Without firings and prosecutions for this kind of thing, the 'bad apples' see that it is in fact acceptable: They just need to say the magic words, that they feared for their lives, just like they were trained to.

> A friend was an LAPD detective for 30 years. He was involved in two fatal shootings, and we talk a lot about his days on the beat.

If he shot and killed two people, you should say he shot and killed two people. This weird circular speech around cops killing people ("officer-involved shooting") is one of the reasons it continues to be so common.

So long as they have a magic phrase for evading responsibility, we'll remain in the situation of having to deal with killer cops.

That will almost certainly vary from state to state. Texas allows it's citizens to use lethal force in a number of non-life-threatening scenarios. One of which is to protect your own property. You can shoot someone in the back provided they were stealing from you. There was a case in the early 2010s where a guy paid a prostitute, she refused to render services and to give his money back, and he shot her to get his money back. It was ruled a lawful shooting. https://www.nydailynews.com/news/crime/jilted-john-acquitted...

I would be extremely surprised if the police were restricted to using less force than your average joe.

Probably not that big of problems. The officer needs to tell people that he was afraid for his life of the person running away with their hands in the air, and everyone will say it's ok. Maybe some paid vacation, or move to another police department, but no real or lasting consequences

They are trained to explain their actions in a way that unambiguously justifies them in law? That sure is easy to interpret in more than one way.

I took a use of force course from the criminal justice department in college. What they said is that originally (maybe until sometime in the 40s?) it was legal for police to shoot a fleeing suspect if the crime was a felony.

That has since changed and it is now only legal to shoot a fleeing suspect if they pose an immediate safety threat. For example, if the suspect was armed and fleeing into a populated area.

1985: https://en.wikipedia.org/wiki/Tennessee_v._Garner

Thanks!

This seems like a very specific argument but at first glance seems reasonable? If the police take actions to seize a person, but fail, they can still be held accountable for an unreasonable seizure.

Otherwise you'd get into a weird scenario where the government could do everything it wanted to conduct a seizure (wiretaps, no-fly-lists, etc) but as long as they didn't seize you, you couldn't sue them in court.

I agree. Kavanaugh’s argument seems to be that it’s not seizure because they did a bad job at it. If the police arrest you, you can argue in court that it was wrongful. If they chase you, shoot you, stick you in the trunk of a car, but you escape, then there was no seizure so you cannot sue.

Note, I am sure that he, Alito, and Thomas are doing what they think is right for the country. I just think they are wrong.

That was Neil Gs opinion not Kavanaughs. Brett managed to get this one right. Thomas managed to find a way to be on the wrong side again of course.

Read the full opinion. It's not as cut and dry as you think. Thomas also actually asked questions during oral argument. For anyone who is not a huge SCOTUS nerd, Thomas asking questions during oral is exceedingly rare but has increased in frequency over the last 2-3 years. A lot of people don't like him, for a range of reasons, but I tend to enjoy reading his opinions and hearing his questions (when he asks them) even if I disagree with them.

> Thomas asking questions during oral is exceedingly rare but has increased in frequency over the last 2-3 years.

My understanding is that, historically speaking, Thomas found that Scalia's probing of arguments was frequently sufficient, and that after Scalia's death, Thomas felt it necessary to start asking questions again.

I've heard this too, but as far as I'm aware Thomas has not confirmed this as the reason for why he's speaking up now.

Edit: Wanted to say that it's kind of weird to me to think that Thomas wasn't asking questions only because Scalia was. Maybe that's true, but it's just an odd thing to think for me after reading tons of Thomas' opinions. He definitely has a mind of his own.

Arm chair internet legal expert shares why legal scholar on Supreme Court is always “on the wrong side”.

Always exciting stuff to read!

He supported the right of the state of Texas to regulate what kind of sex it's citizens were allowed to have in Lawrence v Texas where cops responding to a noise complaint found gay men having sex and arrested them for having sex in their own home.

Flowers v. Mississippi was arguably worse or at least as bad.

https://www.newyorker.com/news/daily-comment/clarence-thomas...

He believes a person facing prison has a right to hire counsel or accept the services of same but no right to effective counsel as established by Gideon v. Wainwright

https://www.oyez.org/cases/1962/155

He also disagrees with New York Times vs. Sullivan. Wherein we severely limited the misuse of civil courts by public figuree to shut down free expression.

A capable analysis by the la times.

https://www.latimes.com/opinion/op-ed/la-oe-chemerinsky-supr...

I could go on and on the constitution as he sees it would describe a nation unfit to live in something he has in common with strict constructionists.

Thomas is both morally and intellectually unfit

https://www.pbs.org/wnet/need-to-know/opinion/clarence-thoma...

He never credibly established his right to be on the court in the first place and his silence in court is because he has nothing to say. When he does speak in his dissents it is frequently to express sentiments that shock the conscience. He is more forward now because the conservative world has rotated far enough to the right that it is well aligned at this point with Thomas malignancy. He is emboldened and we ought to be concerned.

I might be an armchair non expert but at least I know people should have a right to council, the state shouldn't regulate what consenting adults do with their genitals buying legislators isn't speech, and trying a black man 6 times because the convictions keep getting overturned for prosecutorial misconduct is wrong.

This puts me, someone manifestly unfit to be a justice, head and shoulders above thomas.

So glad to have provided such rich entertainment. Got anything else to say?

Thanks!

Kavanaugh voted with the majority (that it was a seizure).

The dissent was Gorsuch, Alito, and Thomas

I don't find Gorsuch's quoted counterposition convincing. It seems to me that expanding "unreasonable seizure" to include "unreasonable attempted seizure" pretty easy logic to follow, assuming that's a valid summary of the decision.

Now if we can get a case to find the same for "civil asset forfeiture" / literally legal highway robbery by police, that would be great.

The quote is not really a good summary of his argument. The full Opinion elaborates much more on this, and his point is (from my reading) that it's a function of the "state" of the interaction between the police and the suspect, and what the definition of the word "seizure" means. I don't know if I find it convincing yet, but it's worth thinking about at least.

Full Opinion here[0], Dissent starts on page 22.

Full Oral Argument here[1], presented by the wonderful folks over at Oyez who really do wonderful work in cataloging the history of the Court (I'm not connected to them, just love what they do and I recommend folks listen to cases if only to sharpen your own rhetorical toolset).

[0] https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf

[1] https://www.oyez.org/cases/2020/19-292

Thank you for adding value to my comment by adding details that would help a reader judge for themselves the validity of the summary. I will have to take a closer look, and encourage other readers to do so as well.

> I don't find Gorsuch's quoted counterposition convincing.

Gorsuch called the court’s opinion “novel” and “mistaken.” The majority “holds that a criminal suspect can be simultaneously seized and roaming at large. ... In two centuries filled with litigation over the 4th 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.”

Sounds a bit like Schrödinger's cat dilemma. Can a suspect be considered "seized" while at the same time roaming free? I think that was his point. You can't really expand the notion to attempted - doesn't it have to be one state or other?

If you were arrested without good cause and then let free you were seized, past tense, and then free at the same time. The same is true if you were held momentarily then got free.

Being freed in 10 seconds or 10 years later doesn't make the seizure less unlawful and your current disposition should have little to do with deciding what WAS lawful at time of seizure.

Deciding that shooting a suspect unlawfully counts as detaining them is more challenging than the current state. I would prefer to call it attempted murder and prosecute the shooter.

The suspect was, at no point during the time period relevant to complaint, under the physical control of the police. That's the point. You can say that you were "seized" if the physical control lasted 10 seconds or 10 years, but in this case there was only attempted seizure.

I don't know, I think shooting somebody (or even shooting at somebody) puts them under your physical control.

I don't get it. You can be charged with attempted murder or attempted robbery, where you failed to do the thing you're guilty of, just fine. Why is this different?

>Sounds a bit like Schrödinger's cat dilemma.

Yes. I recommend reading the whole opinion (both the Majority and the Dissent). It really is an interesting question.

I'm still waiting for a case to come up where a person kills a police officer for stealing from him in a civil asset forfeiture situation. They wouldn't want me on that jury.

Juries don't sent precedents, you'd want to vote to convict if you want the matter appealed for the SCOTUS to hear it

Even better is the jury could refuse to convict and the question of jury nullification could be taken up by the Supreme Court.

> the question of jury nullification could be taken up by the Supreme Court

The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.

Judges talk about it all the time, usually in less direct language, when they give the jury their instructions. The solution is: judges talk about it, but can't really stop a jury from doing it.

I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..)

I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.

> In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..

Jury nullification is a jury acting on its own accord, without respect to the law.

Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.

I remain unconvinced. It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? Sure. But so can any other power granted by the law. It is generally accepted that powers, both explicit and implicit can be used by the government. This includes elected officials and unelected bureaucrats. I see no reason not to extend the same to jurors.

> It is the law that gives juries this power. Can it be used for what you or I consider bad purposes?

The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.

Are you asserting that a jury can never objectively reach a nullifying verdict?

Why would it be? I have yet to see a convincing argument that popular juries make better (more just) judgements.

If I believe that the law as applied to particular case is unjust I would nullify without second thought. Fuck the law if it goes against basic human values. And I am glad that as fucked as US justice system is it still allows for such outcome. At least in theory.

It's funny that so much energy is expended talking about how Jury Nullification is a flaw in the system when the courts themselves can simply overrule congress by agreeing with each other due to Marbury vs Madison (which was essentially judicial nullification).

While nullification has mostly been used for ill in the past, at least it's a grassroots democratic process. Why should someone be punished if their peers don't think it should be a crime? That's pretty small d democratic, much more so than elections where your vote barely counts.

> Marbury vs Madison (which was essentially judicial nullification)

Last I checked, juries aren't co-equal with Congress.

> Why should someone be punished if their peers don't think it should be a crime?

If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se.

If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.

I'd point out that until Marbury v Madison the supreme court was not a co-equal branch. It was simply an interpreter of what congress passed with no ability to declare things unconstitutional. It was a power grab by the courts.

You can claim declaring laws unconstitutional is kind of an implied power, but it is certainly no where in the text.

Other thinkers have said that legalism is fake and there is really only contests between political factions with a legal gloss to pretend things are fair and objective. If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority.

> If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority

Philosophically, I like this argument. Practically, dear god.

The U.S. system was supposed to balance the stability of monarchy (executive) and aristocracy (judiciary) against the justness of democracy (legislative). Our executive is, by design and decidedly, not monarchic. That removes a "slow thinking" system, leaving the "fast thinking" executive and legislature. We see the results in our political volatility.

Given the last two hundred years, Marbury was right. We needed a dampener, so to speak. People not incentivized by poll numbers.

P.S. Thank you. This has been a fun discussion and distraction.

Always enjoy talking constitutionalism. :D

You are right, but I can also imagine the inverse where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency. The unevenness at the local level is problematic, but so is evenness of really bad laws.

For example, a jury should feel free to simply dismiss charges brought under the espionage act.

I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.

> where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency

The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged.

The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.

> The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged.

https://en.wikipedia.org/wiki/Bang%E2%80%93bang_control with all of its flaws

I think the fundamental flaw is failing to recognize that the jury system is intended to be a form of mob rule, and that "jury nullification" should be considered a feature, not a bug.

It's not a flaw. The concept of a jury is meaningless without it.

> If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.

Well, 90% of the world is doing just fine without the jury system. What is so great about it anyways?

> What is so great about it anyways?

It's the sole popular check on the judiciary, the unelected branch of government.

I haven’t read the Federalist Papers, but I would assume that they touched on the reasons why the right to a jury trial was included in the Constitution.

mob rules is sometimes the only defense we have against the oligarchy

For your interest, jury nullification has been addressed directly by the Supreme Court in Canada. They reasoned that a judge does indeed has a duty to stop jury nullification with proper jury instruction, and by preventing council from raising the prospect of nullification to the jury:

> It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.

But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether.

The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.

A prosecutor can't appeal an acquittal. Jury nullification is only considered in cases where (for instance) judges instruct juries in ways that prohibit them from considering jury nullification and the defendant is found guilty.

The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.

I’m not the person you replied to but I believe the “question” of jury nullification they were alluding to was whether or not it can be argued by the defendant. I’m not a criminal lawyer but from what I recall the answer (for lawyers representing defendants, at least) is no.

Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.

A judge did and it went to the SCOTUS:

https://reason.com/2017/06/20/although-juries-can-acquit-the...

Quoth the judge:

> You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.

On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.

One of the things SCOTUS said in regards to this particular case: "While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification."

There is also no implied punishment so the judge in case overstepped.

I agree that the judge overstepped. The SCOTUS didn’t. They can say whatever they want in their decision but if a judge can say that jury nullification is invalid and the conviction is still upheld it means a judge can say that jury nullification is invalid.

>"conviction is still upheld"

There was no nullification in that particular case. If there was judge can say whatever s/he wants but there would be no conviction.

Is there a question of jury nullification?

Maybe he wants to convict and that’s why you wouldn’t want him on the jury????

I would encourage you to read the opinion; it's a lot more nuanced than that. This bit struck me:

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. Ante, at 4. 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. Ante, at 15. 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.

He goes on to mention that the term "seizure" is used in reference to 4 objects in the 4th Amendment, and that prior case law forbids interpreting the same term to mean different things depending on the object being modified. From the opinion:

To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf, 510 U. S., at 143 (internal quotation marks omitted).

I think I'm with Gorsuch here. While I do think the officers acted unreasonably and should be punished, the 4th Amendment doesn't seem to apply. You end up with weird and inconsistent cases. If an officer shoots at someone shooting at him, and ends up hitting a hostage in the house, has he arrested the hostage? Probably not, so now we have to add another layer of complexity in determining whether the officer intended to arrest that person, or "accidentally arrested" them. It just becomes incoherent. I also find it notable that the majority declines to comment on Gorsuch's hypotheticals like lasers or tear gas. Has everyone who's been tear gassed been arrested? What if the wind blows it a different direction? The resulting case law is going to be a mess.

I agree that "unreasonable attempted seizure" should be illegal, there's a gap in the law there. I just think it's up to the legislative branch to fix that. The case law doesn't seem to support the majority opinion; it reads to me like they started with a conclusion and worked backwards.

I would say yes, everyone who has been tear gassed has been arested. The answer to these "accidentally arested people by tear gassing them" is that tear gas is not a suitable tool for aresting people when there are nearby houses, or peaceful protests

As a general rule I never trust a news outlet to accurately summarize a supreme court opinion.

Neither do I, but I didn't have the time to spend hours in a deep-dive to read the court opinion directly.

So given the choice between 1: Say nothing, which is known to not spread lies but has no potential to help anyone, and 2: Extend the article's potential misrepresentation by repeating it as fact, instead I chose option 3: Include my confidence interval in my comment explicitly which enables readers such as yourself to make their own judgment call, but which opens me up to obvious "criticism" by people who are so thrown off by the straightforwardness of this strategy that they can't help themselves from repeating the clearly stated choice while pinning it with their own judgement.

Think of it like this: my comment is a function with a parameter for "trust of this article's summary" for which I trust my reader to provide a value that works well for them, and in turn I give them a comment that they can evaluate themselves.

I hope more people choose option 3, but I can sympathize with why they wouldn't. :)

> literally legal highway robbery by police, that would be great.

That's not true. I believe just the burden of proof is more similar to civil (preponderance of the evidence) than criminal (beyond a reasonable doubt). It still seems unreasonable, but not literally legal highway robbery.

This is false. https://www.law.cornell.edu/wex/civil_forfeiture. Once the assets are seized, there is a burden of proof on the owner to prove that the property was not guilty.

I should have said standard of proof instead of burden of proof. I believe it is under a preponderance standard (>50%), not a beyond a reasonable doubt (that it isn't guilty) standard.

Maybe in some states it is that you would only keep whatever fraction of certainty you proved, as is done in civil disputes in some places?

That isn't my understanding of civil forfeiture. Basically they accuse your stuff and take it. Now you have to convince the court that it isn't I'll gotten gains.... That is if you have the time and money to fight it.

Now let's get some further federal protections at all levels restricting property theft by the police (aka "asset forfeiture"; I suppose when a cop murders you they might prefer to call it life forfeiture).

While your second sentence is dramatic, the analogy it draws appropriately illustrates the outrageous impunity that police enjoy with regard to "asset forfeiture".

It's hard to believe that such abuse is allowed to continue in a country ostensibly governed by the rule of law.

Given what we've seen happen with the CIA, I'm pretty sure that it's not even "ostensibly" any longer.

The US is emphatically not a country with the rule of law, in the macro (there are large government organizations that act with impunity) or the micro (police kill and rape on a local level with impunity).

It is often said "we are a nation of laws". I do not recall anything about laws being just.

https://archive.is/u6jXB

Seems pretty logical. The idea that because the police wrongfully shot, but failed to subdue this person the legal process is more difficult is sort of absurd.

Of course they still have to prove the police acted "unreasonably".

>Roberts noted she would still have to prove the police action was unreasonable

That this lawsuit hasn't already shown that the action was unreasonable makes me think it was intentionally designed to test this issue in the Supreme Court, which my cynical nature makes me think there's some unseen consequence of this ruling.

>That this lawsuit hasn't already shown

Well the lawsuit wasn't able to proceed because they were told they could not sue based on the 4 the amendment...so yeah they couldn't possibly prove "shown" anything legally yet.

Now they can proceed.

And now they can make the argument that the lawsuit is invalid as the action was reasonable. The order these challenges were made is suspect, they didn't have to address this issue first.

The case was dismissed with a summary judgement, which is one of the earliest points a case can be dismissed. Arguing that the action was unreasonable is highly fact specific, and so cannot be done in summary judgement. In contrast, arguing that no seizure occured requires to finding of fact, because there was no dispute of any relevent fact, and so is done first.

That's not how this works. The state moved to dismiss on one set of grounds. That dismissal was granted by the lower court. From there, the case can't proceed until those grounds are settled. This type of thing is very common. It's exactly the same as why standing is established before evidence in civil cases.

It's not suspect, I think you just don't understand how things played out.

If the basis of the lawsuit (in this case the 4th amendment) is wrong, then they should throw the case out at that point.

SCOTUS's job is to determine if the basis for the lawsuit is constitutional or not, they don't determine the facts of the case or anything like that, just if they can sue under the 4th amendment or not. They decided that yes they can.

Now the case can proceeded. This isn't unusual in any way.

There is, a big consequence. There is now precedent that attempted seizure qualifies as a violation of ones rights if it is unreasonable.

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