NICK EICHER, HOST: It’s Monday, a little brighter morning now that we’ve fallen back an hour to standard time. Hope you had a restful weekend. It’s November the 2nd, 2020, and this is The World and Everything in It. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
Today, we continue our weekly coverage of oral arguments at the U.S. Supreme Court.
The justices have been on hiatus for a few weeks from arguments and that has given us a little time to catch up.
The court sits again next week—this time with all 9 justices on hand, including of course the newest: Justice Amy Coney Barrett.
On Wednesday, the nine will hear an important religious-liberty case, Fulton v City of Philadelphia. The question is whether Catholic Charities can abide by its belief in biblical marriage and at the same time still participate in the city’s foster-care program.
This is another foreseeable collision the court created with its Obergefell ruling in 2015 that redefined marriage to include same-sex unions.
EICHER: Now, before we get to oral arguments, I need just a moment for a word about support for our program. I don’t want to presume on your time, so I’ll keep this to 60 seconds on the button and you can skip ahead straight to the program content if this is not for you, OK? Carl, would you run a timer and I’ll keep to it:
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Many thousands of people give generously and we’ll be asking you next month in our December giving drive to renew that support.
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If I’ve described you, would you get in touch with me?
Kept my promise: 60 seconds. On now to our first case that began in the summer of 2014:
AUDIO: The morning started with gunfire in a northeast Albuquerque neighborhood after state police shot a woman… began around 6 a.m. at an apartment complex near Harper Place near I-25 and San Mateo…
A police shooting in Albuquerque, New Mexico, six years ago. Two officers not in uniform attempted to serve an arrest warrant.
Two people were standing in front of the suspect’s apartment when the officers arrived. One person ran into the apartment. The other got into a nearby car and started the engine.
The driver, Roxanne Torres, said she believed the officers walking toward her were carjackers.
She was also under the influence of methamphetamine.
REICHARD: She drove the car forward, apparently not hearing that the officers were shouting instructions. When she didn’t follow those instructions, the officers drew weapons and shot 13 times, hitting Torres twice.
But she kept driving. Then she crashed into another car, got out, then stole a car that had been left running. She drove 75 miles to a hospital. Police arrested Torres the next day, charged with fleeing from an officer, assaulting an officer, and stealing a car.
EICHER: Two years later, Torres sued the officers, accusing them of using excessive force. But she lost in the lower courts.
Those courts found that the officers had qualified immunity.
That’s a doctrine that sets a high legal bar to prove misconduct by police officers. After the death of George Floyd in police custody this past May, policymakers around the country began debating qualified immunity and asking whether the doctrine makes it more difficult to hold police officers accountable or whether changing the doctrine would have unintended consequences for communities beset by crime.
Under qualified immunity, you can sue a police officer for violating constitutional rights only if the right in question was “clearly established” when the incident happened.
Under Fourth Amendment analysis in this case, the courts found the officers hadn’t actually “seized” Torres. The Fourth Amendment protects us against unreasonable search and seizure. Torres had no “clearly established” right under these facts, according to the lower courts.
REICHARD: And that’s the crux of the legal question now: If a misidentified suspect is shot and drives off evading arrest, is that a “seizure?”
What exactly is a seizure? The courts are split on this matter.
Torres’ lawyer, Kelsi Corkran, argued the lower courts got it all wrong:
CORKRAN: In drafting the Fourth Amendment, the Framers chose a term, “seizure of person,” that was widely understood at the time to include any touch intended to restrain, even when unsuccessful. That common law reflected the founding generation’s belief that the infliction of physical force on the body is itself a profound intrusion on personal liberty, regardless of whether it results in physical control.
“Regardless of whether it results in physical control.”
That’s key to her argument.
So even if these officers didn’t get close enough to handcuff Torres and take her into custody, they still intruded on her personal liberty.
Justice Samuel Alito cast about for the limits of that idea.
ALITO: If a military sniper shoots someone from a distance of 1,000 yards, would we say that the sniper had seized that person?
CORKRAN: Yes, because the sniper shot the bullet with the intent of applying physical force to the person in order to restrain them —
ALITO: In ordinary speech, would we say that the sniper seized that person?
After a little hesitation, Corkran said yes.
Then Justice Alito tried again:
ALITO: I’ll give you another example. If a baseball pitcher intentionally beans the batter, would we say, “Wow, that pitcher just seized the batter?”
CORKRAN: I don’t know that we would use it in that context.
Justice Alito wasn’t buying her argument.
ALITO: I mean your argument is not consistent with the language of the Fourth Amendment and you want us to expand the concept of an arrest beyond where it stood at common law. Is that correct?
CORKRAN: No your honor. We’re asking the court to affirm the original meaning of the Fourth Amendment…
Lawyer for the police officers, Mark Standridge, argued a seizure does not mean at all what the other side claims. He cited a prior Supreme Court ruling that set out the hallmarks of an actual seizure by physical force:
STANDRIDGE: It’s a stoppage of movement. It’s the termination of freedom. It is a taking possession, it’s physical control. That is an easily administrable rule for the police officers working in the field, and it’s also easily understood by the common person. It comports with common sense and common understanding through 200 years of dictionary definitions and case law on the ordinary notion of “seizure.”
Standridge outlined the problem with the other side’s argument: at no time did the officers possess or have custody or control over Torres. Therefore, they cannot be held liable for excessive force in violation of the Fourth Amendment, because they never seized her in the first place.
But Justice Stephen Breyer wasn’t so sure. He homed in on the other part of that phrase, “search and seizure.”
BREYER: Suppose that a policeman without a warrant wants to search a private person’s house, enters in the middle of the night. Before he can do anything, he doesn’t look for a single thing, no chance to look for or search for anything, a big dog drives him out. Is that a search?
STANDRIDGE: It — no, Your Honor, I — I submit that it is not, because the — the officer, though he has entered into the home, has not obtained information. And that’s — that’s the hallmark of a — of an invasive or an unreasonable search under the Fourth Amendment.
Had police actually stopped Torres when they shot her, she’d have an easier case to make for excessive force.
But the law is gray in this instance.
A 1991 decision of the Supreme Court said “seizure” means (a) laying on of hands or (b) the application of physical force to restrain movement.
It seems that—(b) application of physical force—supports the position of Torres.
Yet, a 10th Circuit ruling held that if a suspect continues to flee after being shot, that’s different. In the view of the court, that negates a Fourth Amendment claim of excessive force under the analysis of search and seizure.
Now, of course, Supreme Court decisions supersede lower court decisions in cases like this. But still, the details aren’t entirely clear; in this case, the justices must decide whether these facts fit into those legal contours and articulate a rule going forward.
The Trump administration urged the Supreme Court to remand the case for better analysis below, although agreeing that Torres ought to be able to sue.
A quick aside: this court declined to hear eight qualified-immunity challenges this year. The Torres case was the one the Supreme Court did take up, and it agreed to do so before the protests and rioting of this summer. Ultimately, the court’s decision may alter the doctrine of qualified immunity.
This last case involves three separate cases of rape by members of the armed forces. The court consolidated the cases to answer one central legal question: does a five-year statute of limitation within which to prosecute military rape apply to crimes committed in the 20 years between 1986 and 2006?
Conflicting laws and court rulings make this a gray area. I won’t get into the complicated legal history. The high court has to figure out which statute Congress has changed over the years applies.
But hear what the two sides are saying: the federal government takes the view that in the military, the crime of rape ought not have a time limit in which to prosecute. The attorney making the argument is Jeffrey Wall, Acting Solicitor General:
WALL: There is a different rule in the military. First, the harms are different. Military rape can destroy a platoon, it can undermine forces’ readiness, it can even damage foreign relations. So all rape is heinous, but we would say particularly so in the military.
On the other side, Stephen Vladeck, lawyer for the men convicted of rape years after the offense.
He reviews the legal history.
VLADECK: Congress finally eliminated a statute of limitations for all rape offenses in 2006 so that the military may today try any such offense committed since then. But all three of the offenses at issue here predated that amendment, which has no language suggesting Congress intended it to apply retroactively.
In other words, Vladeck argues, it’s too late to prosecute his clients.
But Justice Samuel Alito brought up a painful historical fact:
ALITO: Throughout history, there have unfortunately been many instances in which occupying armies have gone on rape sprees and have raped many, many women in the territory that they are — they are occupying. Suppose that were to happen again. Do you think it’s settled under our case law that the death penalty could not be imposed on members of the military who engaged in that sort of practice?
A brief back and forth, and then:
ALITO: You think what’s that Congress intended?
VLADECK: Well, if — if I might, Justice Alito, I — I think it’s worth pointing to two —
ALITO: That’s hard to imagine that the American military doing the sort of things that were done, for example, in the former Yugoslavia and many other examples that could be cited through history. But do you think that Congress had that in mind, that we are taking the death penalty off the table for offenses like that?
Vladeck answered that different provisions in military law allow for prosecutions of war crimes. But prosecutors are not accusing his clients of that.
Attorney Wall is arguing for the government wanting to prosecute these rapes. He provided some perspective:
WALL: The military very rarely pursues the death penalty. The last time the military executed someone was 1961 for the rape of a civilian child in occupied Austria in the wake of World War II.
If the court sides with the government, then prosecutors can pursue rape allegations that are now decades old.
If the court sides with the men, then as Wall said in his closing argument, three convicted rapists inside the military will go free.
Decisions in both of these cases are expected by the end of June.
And that’s this week’s Legal Docket.