Amicus Curiae Brief — Roxanne Torres, Petitioner v. Janice Madrid, et al.

No. 19-292

IN THE

Supreme Court of the United States

ROXANNE TORRES,

Petitioner,

v.

JANICE MADRID AND RICHARD WILLIAMSON,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICUS CURIAE

NAACP LEGAL DEFENSE & EDUCATIONAL

FUND, INC. IN SUPPORT OF PETITIONER

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL

JIN HEE LEE*

KEVIN E. JASON

ASHOK CHANDRAN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

jlee@naacpldf.org

DANIEL HARAWA

Of Counsel

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14TH ST, NW SUITE 600

WASHINGTON, DC 20005

Counsel for Amicus Curiae

NAACP Legal Defense &

Educational Fund, Inc.

*Counsel of Record

February 7, 2020

i

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT ............................................................... 5

I.

A Police Officer’s Discharge of A Firearm

Is A Quintessential Fourth Amendment

Seizure................................................................... 5

II. The Decision Below Risks Eviscerating the

Primary Vehicles for Ensuring

Accountability for Egregious Police

Misconduct. ........................................................... 8

III. Preserving This Court’s Longstanding

Precedent Regarding Fourth Amendment

Seizure Is Especially Important Given

Law Enforcement’s Historically

Oppressive Use of Weapons in AfricanAmerican Communities. ..................................... 12

A. Law Enforcement Historically

Employed Oppressive Practices,

Including Use of Firearms, to Control

and Intimidate African Americans

Before and After Emancipation. ................. 12

B. African-American Civil Unrest in the

Mid-Twentieth Century, a Response in

ii

Part to Unconstitutional Police

Violence, Led to the Expansive Use of

Weaponry by Police. .................................... 17

C. Far Too Many Law Enforcement

Agencies Throughout the Country

Presently Continue the Excessive Use

of Weapons in African-American

Communities. ...................................... 22

CONCLUSION .......................................................... 28

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Louisiana,

405 U.S. 625 (1972)............................................. 1

Batson v. Kentucky,

476 U.S. 79 (1986) (overruling Swain)............... 1

Berghuis v. Smith,

559 U.S. 314 (2010)............................................. 2

Buck v. Davis,

137 S. Ct. 759 (2017)........................................... 1

California v. Hodari D.,

499 U.S. 621 (1991)......................................... 5, 7

Carter v. Jury Comm’n of Greene Cty.,

396 U.S. 320 (1970)............................................. 1

City of Los Angeles v. Lyons,

461 U.S. 95 (1983)............................................. 10

Coolidge v. New Hampshire,

403 U.S. 443 (1971), holding modified by

Horton v. California, 496 U.S. 128 (1990) ......... 3

Davis v. City of New York,

No. 10-cv-699 (S.D.N.Y.) ..................................... 2

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991)............................................. 1

iv

TABLE OF AUTHORITIES

(Continued)

Page(s)

CASES

Florida v. Bostick,

501 U.S. 429 (1991)............................................. 6

Flowers v. Mississippi,

139 S. Ct. 2228 (2019)......................................... 2

Georgia v. McCollum,

505 U.S. 42 (1992)............................................... 1

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987)........................................... 14

Graham v. Connor,

490 U.S. 386 (1989)........................................... 10

Graham v. Florida,

560 U.S. 48 (2010)............................................... 2

Ham v. South Carolina,

409 U.S. 524 (1973)............................................. 1

Illinois v. Krull,

480 U.S. 340 (1987)............................................. 8

Ingraham v. Wright,

430 U.S. 673 (1977)............................................. 3

Johnson v. California,

543 U.S. 499 (2005)............................................. 2

v

TABLE OF AUTHORITIES

(Continued)

Page(s)

CASES

Kennedy v. Louisiana,

554 U.S. 407 (2008)............................................. 2

Kimbrough v. United States,

552 U.S. 85 (2007)............................................... 2

Kisela v. Hughes,

138 S. Ct. 1148 (2018)......................................... 7

Liberal v. Estrada,

632 F.3d 1064 (9th Cir. 2011)............................. 6

McCleskey v. Kemp,

481 U.S. 279 (1987)............................................. 1

Michigan v. Chestnut,

486 U.S. 567 (1988)......................................... 3, 5

Miller v. Alabama,

567 U.S. 460 (2012)............................................. 2

Miller-El v. Cockrell,

537 U.S. 322 (2003)............................................. 2

Peña-Rodriguez v. Colorado,

137 S. Ct. 855 (2017)........................................... 2

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978)........................................... 14

vi

TABLE OF AUTHORITIES

(Continued)

Page(s)

CASES

Roper v. Simmons,

543 U.S. 551 (2005)............................................. 2

Salazar-Limon v. City of Houston,

137 S. Ct. 1277 (2017)....................................... 10

Swain v. Alabama,

380 U.S. 202 (1965)............................................. 1

Tennessee v. Garner,

471 U.S. 1 (1985)....................................... 4, 7, 11

Terry v. Ohio,

392 U.S. 1 (1968)............................................. 5, 8

Tolan v. Cotton,

572 U.S. 650 (2014)............................................. 2

Turner v. Fouche,

396 U.S. 346 (1970)............................................. 1

United States v. Mendenhall,

446 U.S. 544 (1980)......................................... 5, 6

United States v. Saari,

272 F.3d 804 (6th Cir. 2001)............................... 6

United States v. Smith,

794 F.3d 681 (7th Cir. 2015)............................... 6

vii

TABLE OF AUTHORITIES

(Continued)

Page(s)

STATUTES

The Civil Action for Deprivation of

Rights Act, 42 U.S.C. § 1983 .............................. 8

OTHER AUTHORITIES

2 Statutes at Large of South Carolina 255

(Thomas Cooper ed.) (1837) .............................. 13

Amina Khan, Getting Killed by Police is a

Leading Cause of Death for Young Black

Men in America, L.A. Times (Aug. 16,

2019) .................................................................. 28

Amy Held, Authorities Release Dashcam

Video From Shooting of Philando

Castile, NPR (June 20, 2017) ........................... 27

Anta Plowden, Bringing Balance to the

Force: The Militarization of America's

Police Force and Its Consequences,

71 U. Miami L. Rev. 281, 286–87 (2016).......... 19

Bobby L. Lovett, Memphis Riots: White

Reaction to Blacks in Memphis, May

1865-July 1866, 38 Tenn. Hist. Q. 9

(1979) ................................................................. 15

viii

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Bureau of Justice Statistics, Police Use of

Nonfatal Force, 2002-2011 (2015),

https://www.bjs.gov/content/

pub/pdf/punf0211.pdf ........................................ 22

Chiraag Bains, When Backing the Blue

Backfires, The Marshall Project

(Sept. 20, 2017),

https://www.themarshallproject.org/2017

/09/20/when-backing-the-blue-backfires .......... 27

Claude Sitton, Birmingham Bomb Kills 4

Negro Girls In Church; Riots Flare; 2

Boys Slain, N.Y. Times (Sept. 16, 1963),

https://www.nytimes.com/1963/09/16/

archives/birmingham-bomb-kills-4-negro

-girls-in-church-riots-flare-2-boys.html ........... 18

Donald E. Reynolds, The New Orleans Riot

of1866: Reconsidered,

5 La. Hist. 5, 6–7 (1964) ................................... 16

Elizabeth Hinton, From the War on Poverty

to the War on Crime: The Making of

Mass Incarceration in America 64–65

(Harv. Univ. Press, 1st ed. 2016) ...18, 19, 20, 21

ix

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Fanna Gamal, The Racial Politics of

Protection: A Critical Race Examination

of Police Militarization,

104 Cal. L. Rev. 979, 990 (2016)....................... 19

James Gilbert Ryan, The Memphis Riots of

1866: Terror in a Black Community

During Reconstruction,

62 J. Negro Hist. 243 (1977) ............................. 15

Jesus Jimenez, Former Fort Worth officer

Aaron Dean indicted on murder charge

in shooting of Atatiana Jefferson, Dallas

Morning News (Dec. 20, 2019) ......................... 26

Joe Fox, et al., What We’ve Learned about

Police Shootings 5 Years After Ferguson,

Wash. Post (Aug. 9, 2019)................................. 27

John Robert Lewis, The King Legacy,

30 Vt. L. Rev. 349 (2006) ............................ 17, 18

Justin Nix et al., A Bird’s Eye View of

Civilians Killed by Police in 2015:

Further Evidence of Implicit Bias, 16

Criminology & Pub. Pol’y 309 (2017). .............. 22

x

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Kimberly A. Crawford, Report of Deadly

Force: Tamir Rice,

http://prosecutor.cuyahogacounty.us/pdf

_prosecutor/en-US/Tamir%20Rice%20

Investigation/Crawford-Review%20of%

20Deadly%20Force-Tamir%20Rice.pdf............ 27

Lonnie T. Brown, Jr., Different Lyrics, Same

Song: Watts, Ferguson, and the

Stagnating Effect of the Politics of Law

and Order,

52 Harv. C.R.-C.L. L. Rev. 305 (2017) ............. 19

Lynn Peeples, What the Data Say About

Police Shootings, Scientific American

(Sept. 5, 2019),

https://www.scientificamerican.com/

article/what-the-data-say-about-policeshootings/ .......................................................... 28

xi

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Mark Berman, Former Chicago police

officer Jason Van Dyke sentenced to more

than 6 years for killing Laquan

McDonald, Wash. Post (Jan. 18, 2019),

https://www.washingtonpost.com/nation

al/former-chicago-police-officer-jasonvan-dyke-sentenced-to-more-than-6years-for-killing-laquanmcdonald/2019/01/18/ e3c0e140-1b3811e9-8813-cb9dec761e73_story.html ............... 26

Meridith Edwards & Dakin Andone, ExSouth Carolina cop Michael Slager gets

20 years for Walter Scott killing,

CNN.com (Dec. 7, 2017),

https://www.cnn.com/2017/12/07/us/mich

ael-slager-sentencing/index.html .................... 26

Philip L. Reichel, Southern Slave Patrols as

a Transitional Police Type,

7 Am. J. Police 51(1988) ................................... 13

Phillip Atiba Goff et al., Ctr. for Policing

Equity, The Science of Justice: Race,

Arrests, and Police Use of Force 4

(2016), https://policingequity.org/

images/pdfs-doc/CPE_SoJ_Race-ArrestsUoF_2016-07-08-1130.pdf ................................ 22

xii

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Philp M. Stinson, Police Shootings: A New

Problem or Business as Usual? .......................... 9

Press Release, Office of the Att’y Gen.,

Memorandum for Heads of Department

Components and United States Attorneys

(March 31, 2017),

https://www.justice.gov/opa/pressrelease/file/954916/download ............................. 9

Reuben Fischer Baum, Allegations of Police

Misconduct Rarely Result in Charges,

FiveThirtyEight (Nov. 25, 2014),

https://fivethirtyeight.com/features/alleg

ations-of-police-misconduct-rarelyresult-in-charges ................................................. 9

Rich Morin & Renee Stepler, Pew Research

Center, The Racial Confidence Gap in

Police Performance 5 (Sept. 29, 2016),

https://www.pewsocialtrends.org/wpcontent

/uploads/sites/3/2016/09/ST_2016.09.29_

Police-Final.pdf ................................................... 9

Rich Morin, et al., Behind the Badge, Pew

Research Center (Jan. 11, 2017) ...................... 25

xiii

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

Robin D.G. Kelley & Earl Lewis, To Make

Our World Anew: A History of African

Americans (2000) ................................. 13

Roger A. Fairfax, Jr., The Grand Jury’s

Role in the Prosecution of Unjustified

Police Killings —Challenges and

Solutions, 52 Harv. C.R.-C.L.L. Rev.

397, 405 (2017) .................................................... 9

Roland G. Fryer, Jr., An Empirical Analysis

of Racial Differences in Police Use of

Force, Working Paper 22399, Nat’l

Bureau of Econ. Research (2018),

https://www.nber.org/papers/w22399; ............. 22

Sally E. Hadden, Slave Patrols: Law and

Violence in Virginia and the Carolinas

(2003) ................................................................. 13

Sarah Maslin Nir, Officer Peter Liang

Convicted in Fatal Shooting of Akai

Gurley in Brooklyn, N.Y. Times (Feb. 11,

2016),

https://www.nytimes.com/2016/02/12/

nyregion/officer-peter-liang-convicted-infatal-shooting-of-akai-gurley-inbrooklyn.html .................................................... 26

xiv

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

David J. Garrow, Bearing the Cross: Martin

Luther King, Jr., and the Southern

Christian Leadership Conference 227-28

(1986) ................................................................. 17

Seth W. Stoughton, Principled Policing:

Warrior Cops and Guardian Officers,

51 Wake Forest L. Rev. 611 (2016) .................. 19

Solomon Northup, Twelve Years a Slave

(1977) ................................................................. 14

Southern Poverty Law Ctr., Ku Klux Klan:

A History of Racism and Violence 13

(6th ed. 2011),

https://www.splcenter.org/20110228/kuklux-klan-history-racism .................................. 15

United Press Int’l, Six Dead After Church

Bombing, Washington Post (Sept. 16,

1963),

http://www.washingtonpost.com/wp-srv/

national/longterm/churches/archives1.ht

m ........................................................................ 18

U.S. Dep’t of Justice, Investigation of the

Chicago Police Department (2017)................... 25

xv

TABLE OF AUTHORITIES

(Continued)

Page(s)

OTHER AUTHORITIES

U.S. Dep’t of Justice, Investigation of the

Cleveland Division of Police (2014) ............ 23, 24

U.S. Dep’t of Justice, Investigation of the

Ferguson Police Department (2015) .......... 23, 24

U.S. Dep’t of Justice, Investigation of the

New Orleans Police Department (2011) .... 23, 24

U.S. Dep’t of Justice, Investigation of the

Puerto Rico Police Department (2011)....... 24, 25

U.S. Dep’t of Justice, Investigation of the

Seattle Police Department (2011) .................... 24

U.S. Dep’t of Justice, Investigation of the

Baltimore City Police Department (2016) ....... 23

Philp M. Stinson, Police Shootings: A New

Problem or Business as Usual?,

Uprooting Criminology Blog (2015),

https://scholarworks.bgsu.edu/cgi/viewco

ntent.cgi?article=1050&context=crim_ju

st_pub .................................................................. 9

Woman Shot Dead by Texas Police Through

Bedroom Window, BBC News (Oct. 13,

2019), https://www.bbc.com/news/worldus-canada-50032290 ......................................... 26

1

INTEREST OF AMICUS CURIAE 1

The NAACP Legal Defense & Educational Fund,

Inc. (“LDF”) is the nation’s first and foremost civil

rights legal organization. Through litigation,

advocacy, public education, and outreach, LDF strives

to secure equal justice under the law for all

Americans, and to break down barriers that prevent

African Americans from realizing their basic civil and

human rights.

LDF has long been committed to eradicating the

pernicious influence of racial discrimination in the

criminal justice system. LDF has served as counsel of

record in multiple cases before this Court challenging

such discrimination. See, e.g., Swain v. Alabama, 380

U.S. 202 (1965); Carter v. Jury Comm’n of Greene Cty.,

396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346

(1970); Alexander v. Louisiana, 405 U.S. 625 (1972);

Ham v. South Carolina, 409 U.S. 524 (1973);

McCleskey v. Kemp, 481 U.S. 279 (1987); Buck v.

Davis, 137 S. Ct. 759 (2017). LDF has also submitted

amicus curiae briefs to this Court in numerous cases

to provide its expertise on matters pertaining to race

and the criminal justice system. See, e.g., Batson v.

Kentucky, 476 U.S. 79 (1986) (overruling Swain);

Edmonson v. Leesville Concrete Co., 500 U.S. 614

(1991); Georgia v. McCollum, 505 U.S. 42 (1992);

Miller-El v. Cockrell, 537 U.S. 322 (2003); Johnson v.

1

Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae state that no counsel for a party authored this brief in

whole or in part and that no person other than amicus curiae, its

members, or its counsel made a monetary contribution to the

preparation or submission of this brief. Pursuant to Supreme

Court Rule 37.3, counsel for amicus curiae state that both

parties have filed blanket consent to the filing of amicus briefs.

2

California, 543 U.S. 499 (2005); Roper v. Simmons,

543 U.S. 551 (2005); Kimbrough v. United States, 552

U.S. 85 (2007); Kennedy v. Louisiana, 554 U.S. 407

(2008); Berghuis v. Smith, 559 U.S. 314 (2010);

Graham v. Florida, 560 U.S. 48 (2010); Miller v.

Alabama, 567 U.S. 460 (2012); Tolan v. Cotton, 572

U.S. 650 (2014); Peña-Rodriguez v. Colorado, 137 S.

Ct. 855 (2017); Flowers v. Mississippi, 139 S. Ct. 2228

(2019).

LDF is especially concerned with policing policies

and practices that target and disproportionately

harm communities of color, especially African

Americans. For over a decade, LDF has represented a

class of African American and Latino public housing

residents and their guests in a federal lawsuit

challenging the unlawful policing of public housing

residences in New York City. See Davis v. City of New

York, No. 10-cv-699 (S.D.N.Y.). Since 2015, LDF’s

Policing Reform Campaign has worked to address

issues of unconstitutional police practices, to

eliminate racial bias and profiling in policing, and to

end police violence against citizens. LDF has also

testified before the United States Congress, as well as

the President’s Task Force on 21st Century Policing,

about the prevalence of racial bias in police use of deadly

force, and the need to eliminate racial bias in the

criminal justice system in order to foster confidence and

trust in our public institutions.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has recognized that the Fourth

Amendment, including its proscription against

unreasonable searches and seizures, is “the very

3

essence of constitutional liberty.” Coolidge v. New

Hampshire, 403 U.S. 443, 454 n.4 (1971), holding

modified by Horton v. California, 496 U.S. 128 (1990)

(quoting Gouled v. United States, 255 U.S. 298, 303–

04 (1921)). As such, “[t]he right of personal security is

also protected by the Fourth Amendment . . . because

its protection [is] viewed as ‘implicit in the concept of

ordered liberty.’” Ingraham v. Wright, 430 U.S. 673

n.42 (1977) (citation omitted).

Ignoring these pronouncements, the Court of

Appeals for the Tenth Circuit determined, as a matter

of law, that Petitioner Roxanne Torres was not

“seized” when two officers fired thirteen bullets into

her moving car—striking her twice in the back—

because she was able to continue driving. A Fourth

Amendment seizure, under the lower court’s

reasoning, requires more than an officer exerting

physical force to make the targeted suspect stay

during an encounter with police—the individual must

in fact stay.

This reasoning ignores both precedent and

history. As this Court has made clear, a “seizure”

under the Fourth Amendment occurs when police

either apply any amount of physical force to a person

or take action that would make a reasonable person

feel not free to leave an interaction. Neither test

permits an analysis of the specific response of the

target of the police conduct. In fact, this Court has

emphasized that this Fourth Amendment inquiry

“calls for consistent application from one police

encounter to the next, regardless of the particular

individual’s response to the actions of the police.”

Michigan v. Chestnut, 486 U.S. 567, 574 (1988).

4

Importantly, affirming the decision below risks

undermining an important vehicle by which police are

held accountable for unlawful use of force, with

particular harm to African-American communities

that are too often subject to police violence to this day.

If this Court takes the extraordinary position that a

police officer deliberately shooting at and wounding

an individual is not a Fourth Amendment “seizure,”

many innocent victims of police shootings will be left

without a remedy. Such a striking departure from this

Court’s longstanding precedent would defy common

sense, demanding that, in order to obtain any

constitutional relief, individuals wounded by an

officer remain in place and risk death while the

officer, trained to “shoot to kill,” continues to fire at

will. Affirming the Tenth Circuit’s reasoning would

also undermine this Court’s clear prohibition in

Tennessee v. Garner, 471 U.S. 1 (1985), against using

deadly force on fleeing suspects who do not constitute

a threat to officers or the public.

The lower court’s decision to immunize many

police shootings from Fourth Amendment scrutiny is

particularly

troubling

for

African-American

communities, which have disproportionately been

victims of police violence that has often involved

weapons. From the very inception of modern

American law enforcement, weapons—and firearms

specifically—have been deployed as a means of

policing

and

oppressing

African-American

communities. Today, far too many police officers

continue to draw and use guns as a means of

unjustified control of African Americans, rather than

for valid law enforcement reasons. The Tenth

Circuit’s decision leaves these countless people

without recourse.

5

Accordingly, this Court should preserve the

protections long recognized under the Fourth

Amendment, which are especially vital to AfricanAmerican individuals who are at greatest risk of

police violence. The decision below must be reversed.

ARGUMENT

I.

A Police Officer’s Discharge of a Firearm Is

A

Quintessential Fourth

Amendment

Seizure.

In the seminal case, Terry v. Ohio, this Court

explained that a Fourth Amendment seizure occurs

when an officer restrains the “liberty of a citizen” in

one of two ways: either by “physical force” or by “show

of authority.” 392 U.S. 1, 19 n.16 (1968). A seizure by

“physical force” occurs by the “laying on of hands or

application of physical force to restrain movement,

even when it is ultimately unsuccessful.” California v.

Hodari D., 499 U.S. 621, 626 (1991). A seizure by

“show of authority,” by contrast, occurs when, “in view

of all of the circumstances surrounding the incident,

a reasonable person would have believed that he was

not free to leave.” United States v. Mendenhall, 446

U.S. 544, 553–54 (1980). Importantly, the

Mendenhall test employs an “objective standard” that

“calls for consistent application from one police

encounter to the next, regardless of the particular

individual’s response to the actions of the police.”

Chestnut, 486 U.S. at 574.

A police officer who draws and fires a weapon, as

in the instant case, implicates both types of seizure.

Mendenhall recognized that “the display of a weapon

by an officer”—even without it actually being drawn

6

or fired—can be a “show of authority” that

communicates to a reasonable person that they are

not free to leave. 446 U.S. at 554. That makes sense

because reasonable people know that police officers

have special permission to carry guns and to use them

if necessary.

Courts have thus recognized that when an officer

approaches an individual with their hands resting on

their holstered gun, that display of authority signals

the ability to use deadly force and conveys to a

reasonable person that they are not free to ignore the

officer and go about their day. See, e.g., United States

v. Smith, 794 F.3d 681, 683 (7th Cir. 2015) (officer

approaching defendant with hand on gun was

relevant to finding there was a seizure); Liberal v.

Estrada, 632 F.3d 1064, 1083 (9th Cir. 2011) (holding

that an “officer’s action of putting his hand on his gun,

without drawing it, let[s] [a person] know that there

could be adverse consequences for any failure to

submit to authority”) (internal quotation marks

omitted).

Plainly, then, an officer who unholsters their gun

and actually points it at a person signals to any

reasonable person that they are not free to turn

around and walk away. That is, by definition, a “show

of authority” that would convey to a reasonable

person that they are not “free to ‘disregard the police

and go about his business.’” Florida v. Bostick, 501

U.S. 429, 434 (1991) (quoting California v. Hodari D.,

499 U.S. 621, 628 (1991)); see also United States v.

Saari, 272 F.3d 804, 808 (6th Cir. 2001) (seizure

occurred where officers were outside of defendant’s

apartment with guns drawn).

7

The seizure in this case involves an even greater

show of authority. It does not involve an officer simply

putting a hand on a gun or pointing it at someone. It

involves two officers actually firing their weapons and

wounding a suspect. When an officer shoots a person,

a seizure has occurred. Indeed, the Hodari D. Court

explained that, at common law, “an arrest is effected

by the slightest application of physical force.” 499 U.S.

at 625 (emphasis added). If the slightest application

of physical force is enough to effect an arrest, then the

use of deadly force must certainly be a Fourth

Amendment seizure. See Garner, 471 U.S. at 7

(stating that “there can be no question that

apprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the

Fourth Amendment”); see also Kisela v. Hughes, 138

S. Ct. 1148, 1152 (2018) (describing a non-fatal police

shooting as “deadly force”).

Moreover, according to this Court’s precedent,

which the Tenth Circuit failed to follow, the actual

restraint of an individual is not dispositive as to

whether a seizure has occurred. In Hodari D., this

Court stated that the “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.” 499 U.S. at 626 (emphasis

added). To hold otherwise defies the reality of a

potentially deadly encounter with a police officer who

has decided to discharge a weapon. Under the Tenth

Circuit’s rationale, the application of the Fourth

Amendment would hinge on an individual’s

unpredictable physical reaction to state violence. This

interpretation would exclude from constitutional

review egregious scenarios where an individual,

posing no threat, continued movement after an officer

8

struck them with a bullet. The Constitution must

compel otherwise.

II.

The Decision Below Risks Eviscerating the

Primary

Vehicles

for

Ensuring

Accountability

for

Egregious

Police

Misconduct.

This Court has time and again recognized that the

Fourth Amendment is the “principal mode of

discouraging lawless police misconduct.” Terry, 392

U.S. at 13 (citation omitted); accord Illinois v. Krull,

480 U.S. 340, 350 (1987) (noting that the Fourth

Amendment “was aimed at deterring police

misconduct”). The paradigmatic example of “police

misconduct” is an unreasonable shooting of a civilian,

and the Fourth Amendment’s protections are

essential to preventing such egregious misconduct.

The Tenth Circuit’s decision, however, would

immunize a significant number of police shootings

from Fourth Amendment scrutiny, thereby leaving

even heinous examples of police misconduct

unchecked.

Indeed, civil rights suits, brought under 42 U.S.C.

§ 1983, play a vital role in reforming abusive police

practices and deterring Fourth Amendment

violations by law enforcement that disproportionately

harm African-American communities. A history of

anemic accountability practices within police

departments 2 and diminished oversight by the United

2 See infra Part III.C.

9

States Department of Justice (“DOJ”) 3 have

heightened the importance of individual civil suits.

Such legal actions create an essential opportunity to

transparently assess the reasonableness of officer’s

use of force. 4 Such transparency is especially

important in light of African-American’ existing fears

of officers’ routine use of excessive levels of force. 5

3 Since 2017, DOJ has publicly reduced its role in investigating

constitutional violations within police departments, noting “It is

not the responsibility of the federal government to manage nonfederal law enforcement agencies.” Press Release, Office of the

Att’y Gen., Memorandum for Heads of Department Components

and

United

States

Attorneys

(March

31,

2017),

https://www.justice.gov/opa/press-release/file/954916/

download

4 Officers suspected of using excessive force are rarely charged

and are rarely convicted. See Philp M. Stinson, Police Shootings:

A New Problem or Business as Usual?, Uprooting Criminology

Blog

(2015),

https://scholarworks.

bgsu.edu/cgi/viewcontent.cgi?article=1050&context=crim_just_

pub; Reuben Fischer Baum, Allegations of Police Misconduct

Rarely Result in Charges, FiveThirtyEight (Nov. 25, 2014),

https://fivethirtyeight.com/features/

allegations-of-police-misconduct-rarely-result-in-charges/. The

grand jury process cloaks officer indictments—and, more

typically, failures to indict—in secrecy. See Roger A. Fairfax, Jr.,

The Grand Jury’s Role in the Prosecution of Unjustified Police

Killings —Challenges and Solutions, 52 Harv. C.R.-C.L.L. Rev.

397, 405 (2017).

5 Rich Morin & Renee Stepler, Pew Research Center, The Racial

Confidence Gap in Police Performance 5 (Sept. 29, 2016),

https://www.pewsocialtrends.org/wp-content/

uploads/sites/3/2016/09/ST_2016.09.29_Police-Final.pdf (finding

that only 33% of African-American respondents believe local

police do an “excellent or good job” when it comes to using the

right amount of force for each situation).

10

Thirty years ago, this Court held that the Fourth

Amendment, and no other constitutional provision,

governs the use of force by a police officer before

detention. Graham v. Connor, 490 U.S. 386, 395

(1989) (“Because the Fourth Amendment provides an

explicit textual source of constitutional protection

against this sort of physically intrusive governmental

conduct, that Amendment, not the more generalized

notion of ‘substantive due process,’ must be the guide

for analyzing these claims.” (footnote omitted).

Damages suits also became a primary vehicle for

relief because, except in limited circumstances,

plaintiffs are barred from seeking an injunctive

remedy to reform police practices. City of Los Angeles

v. Lyons, 461 U.S. 95, 137 (1983) (Marshall, J.,

dissenting) (“We now learn that wrath and outrage

cannot be translated into an order to cease the

unconstitutional practice, but only an award of

damages to those who are victimized by the practice

and live to sue and to the survivors of those who are

not so fortunate.”). And, even in damages claims

under the Fourth Amendment, the increasingly broad

reach of qualified immunity prevents recovery in all

but the most egregious of circumstances. See SalazarLimon v. City of Houston, 137 S. Ct. 1277, 1282–83

(2017) (Sotomayor, J., dissenting) (“We have not

hesitated to summarily reverse courts for wrongly

denying officers the protection of qualified immunity

in cases involving the use of force. But we rarely

intervene where courts wrongly afford officers the

benefit of qualified immunity in these same cases.”

(internal citations omitted)).

Given the exclusive nature of the civil damages

remedy under the Fourth Amendment for victims of

police misconduct like Ms. Torres, which are already

11

limited by various judicial constraints, the question

before the Court takes on particular importance: if

police use of force must be examined within the

confines of the Fourth Amendment, then courts

should not sidestep the “reasonableness” analysis by

categorically removing certain uses of force from

Fourth Amendment scrutiny. This is especially true

when, like the instant case, the misconduct at issue

involves police use of deadly force.

Indeed, affirming the Tenth Circuit’s decision

below would upend this Court’s seminal holding in

Tennessee v. Garner, which specifically prohibited the

use of “deadly force to prevent the escape of an

apparently unarmed suspected felon . . . unless it is

necessary to prevent the escape and the officer has

probable cause to believe that the suspect poses a

significant threat of death or serious physical injury

to the officer or others.” 471 U.S. at 3 (emphasis

added). Yet, under the Tenth Circuit’s analysis, an

officer’s unreasonable use of deadly force on an

unarmed fleeing suspect, who posed no threat to

others, would be beyond constitutional scrutiny

merely because the officer missed the mark. Such an

arbitrary result is patently at odds with this Court’s

precedent and creates arbitrary distinctions that defy

common sense.

It is, therefore, incumbent on this Court to

maintain its longstanding interpretation of “seizure,”

as set forth in Hodari D., to provide civilians—

African-American in particular—a meaningful

opportunity to hold officers accountable for their

excessive use of force. A contrary ruling would

immunize officers’ actions despite their intent to

12

restrain, apprehend, and even kill a suspect, simply

because they were unsuccessful in their efforts.

III.

Preserving This Court’s Longstanding

Precedent Regarding Fourth Amendment

Seizure Is Especially Important Given Law

Enforcement’s Historically Oppressive Use

of

Weapons

in

African-American

Communities.

From the earliest days of modern policing, the

threat of gun violence has been used to communicate

a lack of freedom and subject African Americans to

state control. Today, police shootings remain

disturbingly

frequent,

with

victims

disproportionately being African American. By

exempting a category of police shootings from Fourth

Amendment scrutiny, the decision below will make it

even more difficult to remedy state-sponsored

violence, thus exacerbating the reasonable fear of

such violence that continues to define the lived

experiences of too many African Americans.

A. Law

Enforcement

Historically

Employed

Oppressive

Practices,

Including Use of Firearms, to Control

and Intimidate African Americans

Before and After Emancipation.

Policing in America has its roots in the control of

African-American communities in the Southern

colonies; scholars have identified slave patrols as the

13

first publicly funded police agencies. 6 In 1704, for

example, the Carolina colonies created America’s first

Patrol Act, 7 which required militia captains to form

special patrols to “take up all slaves which they shall

meet without their master’s plantation which have

not a permit or ticket from their masters, and the

same punish.” 8 They were authorized by law to use

force, including weapons, against violators they

caught. 9 The Carolinas were not alone. Nearly all

Southern colonies and states empowered slave patrols

to act on their behalf for the purpose of apprehending

slaves. 10 Throughout the South, these entities exacted

unspeakable terror on African Americans as agents of

the colonial or state governments.

Slave patrollers earned a reputation for brutality:

they carried out their duties, armed with guns, whips,

and hounds. 11 In the seminal work, Twelve Years a

Slave, Solomon Northup explained:

6 Sally E. Hadden, Slave Patrols: Law and Violence in Virginia

and the Carolinas 69, 103 (2003); Philip L. Reichel, Southern

Slave Patrols as a Transitional Police Type, 7 Am. J. Police 51,

66 (1988).

7 Reichel, supra note 6, at

59.

8 2 Statutes at Large of South Carolina 255 (Thomas Cooper ed.)

(1837).

9 Robin D.G. Kelley & Earl Lewis, To Make Our World Anew: A

History of African Americans 193 (2000).

10 Reichel, supra note 6, at 66–67 (noting how slave patrols in

Tennessee, Louisiana, Arkansas, Georgia, Missouri, and

Mississippi were uniformly authorized to act as agents of their

respective local governments).

11 Hadden, supra note 6, at 113, 123–24.

14

Patrollers, whose business it is to seize and

whip any slave they may find wandering

from the plantation[,] have the right, either

by law, or by general consent, to inflict

discretionary chastisement upon a black

man caught beyond the boundaries of his

master’s estate without a pass, and even to

shoot him, if he attempts to escape. 12

Following the formal abolition of slavery,

Southern states immediately devised new means of

controlling African Americans through police

enforcement of “Black Codes,” which, among other

things, “limited the rights of Negroes to own or rent

property and permitted imprisonment for breach of

employment contracts.” Regents of the Univ. of Cal. v.

Bakke, 438 U.S. 265, 390 (1978) (Marshall, J.

dissenting). These were “poorly disguised substitutes

for slavery” that “defined racial status; . . . forbade

[blacks from] owning firearms or other weapons;

controlled the movement of blacks by systems of

passes; required proof of residence; prohibited the

congregation of groups of blacks; restricted blacks

from residing in certain areas; and specified an

etiquette of deference to whites . . . .” Goodman v.

Lukens Steel Co., 482 U.S. 656, 672 (1987) (Brennan,

J., concurring in part, dissenting in part, and

concurring in the judgment) (footnote omitted)

(citation omitted).

Police violence was key in enforcing the Black

Codes. For example, police officers instigated and

participated in the 1866 Memphis riot, which resulted

12 Solomon Northup, Twelve Years a Slave 180–81 (1977).

15

in the mass murder of scores of African-American

men, women, and children. 13 In the weeks leading up

to the riot, white policemen had been arresting

African Americans on baseless excuses, including the

violation of curfew laws invalidated by the end of

slavery. 14 These police often used force without

warning. 15 In congressional testimony following the

riot, scores of white witnesses described police abuse

administered to African-American residents—the

arrest of an African American for even a minor charge

often prompted a severe beating by the all-white

Memphis police force. 16 By the time order was

restored two days later, 46 African Americans had

been killed and at least five African-American women

had been raped. 17 Although the Memphis Police

Department was immediately placed under the

supervision of a state board, no officers were arrested

or fired. 18

Less than three months later, a similar massacre

occurred in New Orleans during a Louisiana state

13 Bobby L. Lovett, Memphis Riots: White Reaction to Blacks in

Memphis, May 1865-July 1866, 38 Tenn. Hist. Q. 9, 22 (1979);

Southern Poverty Law Ctr., Ku Klux Klan: A History of Racism

and

Violence

13

(6th

ed.

2011),

https://www.splcenter.org/20110228/ku-klux-klan-historyracism.

14 James Gilbert Ryan, The Memphis Riots of 1866: Terror in a

Black Community During Reconstruction, 62 J. Negro Hist. 243,

245 (1977).

15 Id.

16 Id. at 244.

17 Ryan, supra note 14, at 243; Lovett, supra note 13, at 30.

18 Lovett, supra note 13, at 30.

16

constitutional convention, which had been convened

to challenge the established white government. 19 In

response to racial taunts from a white observer, 20 a

single shot was fired from within an assembly of 200300 African-American marchers in support of the

convention—hitting no one. 21 Rather than arresting

the suspected shooter, the police officers on the scene

fired a volley of shots into the crowd. 22 As one

historian described, “[m]any Negroes who approached

individual policemen, begging to be arrested, were

shot down in cold blood.” 23 According to official

accounts, 38 individuals were killed and 146 were

wounded—34 of the dead and 119 of the wounded

were African American. 24 No officer was arrested or

punished for the massacre. 25

The transformation of antebellum slave patrols

into late-nineteenth-century police forces was thus a

change in name only. Police violence in AfricanAmerican communities continued, unabated, with the

blessing of the state. Little would change through the

mid-twentieth century and the birth of the Civil

Rights Movement.

Donald E. Reynolds, The New Orleans Riot of 1866:

Reconsidered, 5 La. Hist. 5, 6–7 (1964).

19

20 Id. at 11.

21 Id. at 11-12.

22 Id. at 12.

23 Id. at 13.

24 Id.

25 Id.

17

B. African-American Civil Unrest in the

Mid-Twentieth Century, a Response in

Part

to

Unconstitutional

Police

Violence, Led to the Expansive Use of

Weaponry by Police.

The mid-twentieth century witnessed massive

social upheaval as African-American citizens engaged

in nonviolent, civil disobedience in the face of

excessive—and

often

deadly—force

by

law

enforcement. Indeed, the public display of police

brutality, embodied by the actions of Birmingham

Public Safety Commissioner Bull Connor, brought

“the nation to its conscience to recognize the injustice”

of the Jim Crow South. 26 Perhaps most infamous was

“Bloody Sunday” on March 7, 1965, when

approximately 600 peaceful protesters in Selma,

Alabama challenged their disenfranchisement in a

march across the Edmund Pettus Bridge. 27 These

protestors were met by state troopers and sheriff

deputies, who “beat[ them] with night sticks and bull

whips, trampl[ed them] with horses, and releas[ed]

the tear gas.”28

The police violence inflicted on African-American

civil rights protesters was not limited to night sticks

and tear gas. Law enforcement also used firearms in

26 See David J. Garrow, Bearing the Cross: Martin Luther King,

Jr., and the Southern Christian Leadership Conference 227-28

(1986).

27 John Robert Lewis, The King Legacy, 30 Vt. L. Rev. 349, 356

(2006).

28 Id.

18

response to civil rights protests. Indeed, the

nonviolent march that led to Bloody Sunday was

spurred by the death of Jimmy Lee Jackson, who was

fatally shot by a state trooper a few weeks earlier as

he was trying to protect his mother from a police

beating during a peaceful demonstration in nearby

Marion, Alabama. 29 During another demonstration in

1963—in the aftermath of the bombing of the 16th

Street Baptist Church in Birmingham, Alabama,

which killed four young African-American girls—

police killed Johnny Robinson, a sixteen-year-old

African-American teenager, by shooting him in the

back as he ran away.30

Police confrontation with African Americans

came to a head during a series of civil uprisings in

predominantly

African-American,

urban

neighborhoods in the mid-1960s. One of the largest in

history occurred during the summer of 1965 in the

Watts neighborhood of South Central Los Angeles, in

connection with an aggressive encounter between

officers and a African-American family during a

routine traffic stop. 31 The ensuing six days of civil

29 Id. at 355.

Claude Sitton, Birmingham Bomb Kills 4 Negro Girls In

Church; Riots Flare; 2 Boys Slain, N.Y. Times (Sept. 16,

1963), https://www.nytimes.com/1963/09/16/archives/birmingha

m-bomb-kills-4-negro-girls-in-church-riots-flare-2-boys.html;

United Press Int’l, Six Dead After Church Bombing, Washington

Post (Sept. 16, 1963), http://www.washingtonpost.com/wpsrv/national/

longterm/churches/archives1.htm.

30

Elizabeth Hinton, From the War on Poverty to the War on

Crime: The Making of Mass Incarceration in America 64–65

31

19

unrest resulted in 34 deaths, over a thousand injuries,

and an estimated $200 million in property damage. 32

Thirty-one of the 34 deaths were Watts residents

killed by law enforcement authorities, including

Fenbroy Morrison George, an African-American man

who was fatally shot by police while attempting to

save the belongings of his wife and three children

from their burning home. 33

A presidential task force that was formed to

investigate the causes of the Watts uprising

determined unequivocally that it was motivated in

large part by abusive policing. 34 The report noted that

Los Angeles police considered the African-American

community to be a “hostile territory to be kept in

check by a continuous show of force.” 35 Indeed, the

(Harv. Univ. Press, 1st ed. 2016); see also Fanna Gamal, The

Racial Politics of Protection: A Critical Race Examination of

Police Militarization, 104 Cal. L. Rev. 979, 990 (2016); Anta

Plowden, Bringing Balance to the Force: The Militarization of

America's Police Force and Its Consequences, 71 U. Miami L.

Rev. 281, 286–87 (2016).

Seth W. Stoughton, Principled Policing: Warrior Cops and

Guardian Officers, 51 Wake Forest L. Rev. 611, 641 (2016); see

also Gamal, supra note 31, at 990–91; Plowden, supra note 31,

at 286–87.

32

33 Hinton, supra note 31, at 69.

Lonnie T. Brown, Jr., Different Lyrics, Same Song: Watts,

Ferguson, and the Stagnating Effect of the Politics of Law and

Order, 52 Harv. C.R.-C.L. L. Rev. 305, 324–25 (2017). At the time

of the uprising, South Los Angeles was 81% African American,

with 27% of families living in poverty and 65% of adults older

than age 25 not having a high school degree. Gamal, supra note

31, at 991.

34

35 Brown, Jr., supra note 34, at 326 (2017).

20

Chief of the Los Angeles Police Department, William

Parker, stated that the Watts uprising was “very

much like fighting in Viet Cong,” and both state and

local law enforcement “quickly established blockades

and posted signs throughout the riot zone that

threatened to kill residents (‘Turn left or get shot,"

one declared).” 36

Subsequent uprisings in Newark and Detroit

followed similar patterns to Watts. In Newark, which

saw widespread unrest for six days in July 1967, 24

individuals died—all but two of whom were African

American. 37 Victims of police violence included 12year-old Michael Pugh, who was fatally shot in front

of his house by the National Guard as he took out the

trash after curfew, and Hattie Gainer, a 54-year-old

grandmother whose daughter was told by police that

they had “made a mistake” and “shot the wrong

person.” 38 Likewise, Detroit experienced five days of

unrest after police raided a bar in a predominantly

African-American neighborhood, resulting in the

deaths of 43 people, 32 of whom were African

American. 39

In both Newark and Detroit, like Watts, police

brutality and the “growing animosity between white

patrolmen” and African-American residents were the

underlying cause of the violent uprisings.40 Similar

conclusions were reached by the National Advisory

36 Hinton, supra note 31, at 69.

37 Id. at 109.

38 Id.

39 Id. at 106.

40 Id. at 110.

21

Commission on Civil Disorders (called the “Kerner

Commission” after its chair, Illinois Governor Otto

Kerner), which was established by President Lyndon

Johnson in response to the widespread AfricanAmerican civil unrest during the summer of 1967. The

Kerner Commission noted “a widespread belief

among Negroes in the existence of police brutality and

in a ‘double standard’ of justice and protection—one

for Negroes and one for whites.” 41

What followed the release of the Kerner

Commission’s report was not a comprehensive plan to

address unlawful police shootings and brutality in

African-American communities, but instead the

provision by the federal government of “new militarygrade weapons and surveillance technologies” 42 to

state and local law governments to assist with urban

control. Ultimately, federal spending increased

exponentially—from $10 million in 1965 to about

$850 million in 1973—to support state and local law

enforcement with the “mission . . . to expand

supervision and control in low-income urban

communities.” 43

Police violence, including deadly force from police

shootings, in African-American communities played a

central role in instigating widespread protests in the

1960s. Yet, instead of remedying the underlying

grievances of these protests, the state response has

been to further weaponize law enforcement to control

African-American communities, particularly in urban

41 Id. at 5.

42 Hinton, supra note 31, at 13.

43 Id. at 2–3.

22

areas, and leave in place the oppressive police tactics

that too often lead to unjustified use of lethal force.

C. Far Too Many Law Enforcement

Agencies Throughout the Country

Presently Continue the Excessive Use of

Weapons

in

African-American

Communities.

Regrettably, the excessive use of weapons in

African-American communities by law enforcement

officers is hardly a relic of the past. The data are clear

that officers continue to threaten, and actually use,

weapons against African Americans without legally

sufficient justification. Media stories of officerinvolved shootings of African Americans have

recently brought this dangerous form of statesponsored discrimination into glaring relief, spurring

national conversations about race and policing.

The federal government’s own data have

consistently shown that African Americans are

disproportionately subject to force of all levels in

encounters with law enforcement. 44 In the past two

Bureau of Justice Statistics, Police Use of Nonfatal Force,

https://www.bjs.gov/content/

2002-2011

(2015),

pub/pdf/punf0211.pdf; see also Phillip Atiba Goff et al., Ctr. for

Policing Equity, The Science of Justice: Race, Arrests, and Police

Use

of

Force

4

(2016),

https://policingequity.org/

images/pdfs-doc/CPE_SoJ_Race-Arrests-UoF_2016-07-081130.pdf; Roland G. Fryer, Jr., An Empirical Analysis of Racial

Differences in Police Use of Force, Working Paper 22399, Nat’l

(2018),

Bureau

of

Econ.

Research

https://www.nber.org/papers/w22399; Justin Nix et al., A Bird’s

44

23

decades alone, DOJ determined that numerous police

departments routinely use firearms, tasers, or other

weapons inappropriately and disproportionately

against African Americans. In Baltimore, for

example, African Americans—who account for just

over 60% of the population—experienced almost 90%

of force used by police. 45 DOJ found similarly striking

racial disparities in police departments in several

other cities, including Ferguson and New Orleans. 46

Equally troubling is the relative frequency with

which many officers use weapons without sufficient

legal justification. In DOJ’s investigations of multiple

police departments, officers were found to “fire their

guns . . . against unarmed or fleeing suspects who do

not pose a threat of serious harm,” 47 use tasers “as an

all-purpose tool bearing no risk,” 48 “too hastily resort

to . . . [t]asers,” 49 and employ other weapons in clearly

Eye View of Civilians Killed by Police in 2015: Further Evidence

of Implicit Bias, 16 Criminology & Pub. Pol’y 309, 309 (2017).

45 U.S. Dep’t of Justice, Investigation of the Baltimore City Police

Department 61 (2016) (hereafter, “DOJ Baltimore Rep.”).

U.S. Dep’t of Justice, Investigation of the Ferguson Police

Department 28, 62 (2015) (hereafter, “DOJ Ferguson Rep.”)

(noting that African Americans, just 67% of the Ferguson

population, were the victims of 88% of police use of weapons);

U.S. Dep’t of Justice, Investigation of the New Orleans Police

Department 39 (2011) (hereafter, “DOJ New Orleans Rep.”)

(finding that African Americans were the subject of 84% of uses

of force despite being only 59% of the total population).

46

47 U.S. Dep’t of Justice, Investigation of the Cleveland Division

of Police 13 (2014) (hereafter, “DOJ Cleveland Rep.”).

48 DOJ Ferguson Rep. at 30.

49 DOJ Cleveland Rep. at 13

24

inappropriate situations. 50 In Seattle, 57% of officers’

use of batons were found unnecessary and

inappropriate. 51 In Albuquerque, “officers were not

justified under federal law in using deadly force in the

majority of [officer-involved shootings].”52

A lack of accountability allows such practices to

run rampant. Problems of underreporting, 53 anemic

investigation, 54 and the rarity of departmental

discipline 55 render attempts at internal oversight

largely meaningless. In a recent survey of police

officers, an overwhelming 72 percent believed that

officers who consistently do a poor job are not held

50 See, e.g., U.S. Dep’t of Justice, Investigation of the Puerto Rico

Police Department 33–35 (2011) (hereafter, “DOJ Puerto Rico

Rep.”) (documenting inappropriate uses of batons, tasers, and

firearms); U.S. Dep’t of Justice, Investigation of the Seattle

Police Department 4, 9 (2011) (hereafter, “DOJ Seattle Rep.”)

(concluding that over half—57%—of uses of batons were

unnecessary and excessive).

51 DOJ Seattle Rep. at 4, 9.

52 Ltr from Jocelyn Samuels, Acting Assistant Attorney General,

U.S. Dep’t of Justice, to Hon. Richard J. Berry, Mayor of

Albuquerque 10 (Apr. 10, 2014) (hereafter, “DOJ Albuquerque

Rep.”).

53 See, e.g., DOJ Ferguson Rep. at 38 (“[O]fficers frequently do

not report the force they use at all.”).

54 See, e.g., DOJ New Orleans Rep. at 19 (“The investigations

generally did not include the investigative steps or analysis

necessary to make a credible determination of whether the use

of force was lawful.”).

55 See, e.g., U.S. Dep’t of Justice, Investigation of the Chicago

Police Department 68 (2017) (hereafter, “DOJ Chicago Rep.”)

(noting that internal review process sustained only 1.4% of all

complaints of excessive force).

25

accountable by internal accountability practices. 56

Those protections that do exist are particularly

illusory for African-American communities; white

victims of police violence are significantly more likely

to have complaints of misconduct investigated and

substantiated than African-American victims. 57 As

such, reliance on internal investigations alone means

that people “will continue to be subjected to

preventable harm at the hands of police.” 58

Underpinning these studies are the stories of

countless innocent African Americans who have been

injured or killed by police too hasty to draw guns. In

recent years, as public awareness of police brutality

has increased, juries have convicted police officers for

unjustifiably shooting and killing unarmed AfricanAmerican people such as Akai Gurley, Walter Scott,

and LaQuan McDonald. 59 Most recently, the nation

56 Rich Morin, et al., Behind the Badge, Pew Research Center

(Jan.

11,

2017),

http://www.pewsocialtrends.org/

2017/01/11/behind-the-badge/.

See, e.g., DOJ Chicago Rep. at 68–69 (noting that white

complainants were three times more likely to have allegations of

excessive force upheld than African American complainants

were).

57

58 DOJ Puerto Rico. Rep. at 32.

59 See, e.g., Sarah Maslin Nir, Officer Peter Liang Convicted in

Fatal Shooting of Akai Gurley in Brooklyn, N.Y. Times (Feb. 11,

2016),

https://www.nytimes.com/2016/02/12/

nyregion/officer-peter-liang-convicted-in-fatal-shooting-of-akaigurley-in-brooklyn.html; Meridith Edwards & Dakin Andone,

Ex-South Carolina cop Michael Slager gets 20 years for Walter

Scott

killing,

CNN.com

(Dec.

7,

2017),

https://www.cnn.com/2017/12/07/us/michael-slagersentencing/index.html; Mark Berman, Former Chicago police

26

grappled with the case of Atatiana Jefferson, who was

shot inside her home within seconds of police

arriving. 60 The officer who shot her awaits trial

today. 61

But countless more African Americans are shot by

police officers who are not—and may never be—held

accountable for similarly unjustified conduct. Tamir

Rice, a twelve-year-old in Cleveland, Ohio, was

playing with a toy gun when police officers pulled up

and shot him “[w]ithin one to two seconds” of

arriving. 62 Philando Castile was pulled over for a

routine traffic stop and, just eight seconds later, was

fatally shot by police. 63 This reality for African

officer Jason Van Dyke sentenced to more than 6 years for killing

Laquan

McDonald,

Wash.

Post

(Jan.

18,

2019),

https://www.washingtonpost.com/national/former-chicagopolice-officer-jason-van-dyke-sentenced-to-more-than-6-yearsfor-killing-laquan-mcdonald/2019/01/18/

e3c0e140-1b38-11e9-8813-cb9dec761e73_story.html.

Woman Shot Dead by Texas Police Through Bedroom

Window, BBC News (Oct. 13, 2019),

https://www.bbc.com/

news/world-us-canada-50032290.

60

61 Jesus Jimenez, Former Fort Worth officer Aaron Dean indicted

on murder charge in shooting of Atatiana Jefferson, Dallas

Morning

News

(Dec.

20,

2019),

https://www.dallasnews.com/news/2019/12/20/former-fortworth-officer-aaron-dean-indicted-on-murder-charge-inshooting-of-atatiana-jefferson/.

Kimberly A. Crawford, Report of Deadly Force: Tamir

Rice, http://prosecutor.cuyahogacounty.us/pdf_prosecutor/enUS/Tamir%20Rice%20Investigation/CrawfordReview%20of%20Deadly%20Force-Tamir%20Rice.pdf.

62

Amy Held, Authorities Release Dashcam Video From

Shooting of Philando Castile, NPR (June 20, 2017),

63

27

Americans—in which they are often mere seconds

from death in even the most banal of police

encounters—continues to shape their experiences

with police.

These and numerous other killings of innocent

African Americans by police officers, who have opened

fire without justification, have galvanized national

attention and concern about how police deploy

weapons, and the contours of the Fourth

Amendment’s proscriptions on the conduct of

officers. 64 Since 2015, more than 2,500 police

departments have shot and killed at least one

person. 65 Law enforcement agencies shoot and kill an

average of three people each day—over 1,000 each

year. 66 Further, for every person fatally shot, studies

estimate that two more people are shot non-fatally. 67

And these figures are likely only a fraction of the

https://www.npr.org/sections/thetwo-way/2017/06/20/

533711841/authorities-release-dashcam-video-from-shooting-ofphilando-castile.

Chiraag Bains, When Backing the Blue Backfires, The

Marshall

Project

(Sept.

20,

2017),

https://www.

themarshallproject.org/2017/09/20/when-backing-the-bluebackfires.

64

65 Joe Fox, et al., What We’ve Learned about Police Shootings 5

Years After Ferguson, Wash. Post (Aug. 9, 2019),

https://www.washingtonpost.com/nation/2019/08/

09/what-weve-learned-about-police-shootings-years-afterferguson/?arc404=true.

Lynn Peeples, What the Data Say About Police Shootings,

Scientific

American

(Sept.

5,

2019),

https://www.scientificamerican.com/article/what-the-data-sayabout-police-shootings/.

66

67 Id.

28

number of people at whom officers draw their guns

but do not shoot.

Racial disparities persist in this use-of-force

landscape.

African-American

men

remain

approximately 2.5 times more likely than white men

to be shot by police during their lifetimes. 68 One in

1,000 African-American males can expect to die at the

hands of police. 69 In fact, police shootings are a

leading cause of death among young AfricanAmerican men in United States. 70

These statistics counsel in favor of more scrutiny

of police officers’ use of their weapons, not less. But

the Tenth Circuit’s rule undermines the main

framework by which courts can examine an officer’s

conduct. See supra, Section II. It opens the door to

countless more unjustified shootings against innocent

people, a burden that will disproportionately affect

African-American communities.

CONCLUSION

African Americans’ lived experiences in the

United States demonstrate the need to guarantee

constitutional protections to those most vulnerable to

abuse by officers acting with state authority. The

Fourth Amendment serves this key function, giving

individuals harmed by police the power to review

68 Id.

69 Amina Khan, Getting Killed by Police is a Leading Cause of

Death for Young Black Men in America, L.A. Times (Aug. 16,

2019),

https://www.latimes.com/science/story/

2019-08-15/police-shootings-are-a-leading-cause-of-death-forblack-men.

70 Id.

29

whether an officer’s actions—and especially their

decision to use force—were sufficiently reasonable.

Affirming the Tenth’s Circuit’s ruling would curtail

this critical judicial oversight. And it would

significantly expand the circumstances under which

officers could use weapons without recourse, even

against the innocent. As history shows, African

Americans will disproportionately bear the costs of

such abusive police practices.

Accordingly, amicus curiae respectfully urges this

Court to reverse the Tenth Circuit’s ruling, and

reinstate Ms. Torres’s claims.

Respectfully submitted,

SHERRILYN A. IFILL

Director-Counsel

JANAI S. NELSON

SAMUEL SPITAL

JIN HEE LEE*

KEVIN E. JASON

ASHOK CHANDRAN

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector St., 5th Floor

New York, NY 10006

(212) 965-2200

jlee@naacpldf.org

DANIEL HARAWA

Of Counsel

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

700 14TH ST, NW SUITE 600

WASHINGTON, DC 20005

Counsel for Amicus Curiae

NAACP Legal Defense &

Educational Fund, Inc.

*Counsel of Record

February 7, 2020