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No. 19-
In The
Supreme Court of the United States
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ROXANNE TORRES, Petitioner, v.
JANICE MADRID & RICHARD WILLIAMSON, Respondents.
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On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit
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BRIEF OF AMICUS CURIAE RESTORE THE FOURTH, INC. IN SUPPORT OF PETITIONER
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M AHESHA P. SUBBARAMAN Counsel of Record SUBBARAMAN PLLC 222 S. 9th St., Ste. 1600 Minneapolis, MN 55402 (612) 315- [email protected]
February 7, 2020
===================================COCKLE LEGAL BRIEFS (800) 225-6964============================================================================= WWW.COCKLELEGALBRIEFS.COM
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TABLE OF CONTENTS
Page
Table of Authorities ................................................ ii
Interest of the Amicus Curiae ................................ 1
Summary of the Argument..................................... 2
Argument ................................................................ 3
I. This case exemplifies a bigger problem: lower court neglect of common-law history in gaug- ing searches and seizures ............................ 3 II. Out of respect for the person, the common law recognized that an arrest could be either physical or constructive ............................... 8
Conclusion ............................................................... 16
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TABLE OF AUTHORITIES—Continued Page
Legrand v. Bedinger, 20 Ky. 539 (1827)........................
LMP Services, Inc. v. City of Chicago, 95 N.E.3d 1258 (Ill. App. Ct. 2017), aff ’d, No. 123123, 2019 Ill. LEXIS 658 (Ill. May 23, 2019) ................ 4, 5
Mowry v. Chase, 100 Mass. 79 (1868).........................
Pike v. Hanson, 9 N.H. 491 (1838) ..............................
Richardson v. Rittenhouse, 40 N.J.L. 230 (1878) .......
Russen v. Lucas (KB 1824), reported in: 1 F. A. CARRINGTON & J. PAYNE, REPORTS OF CASES AR- GUED & RULED AT NISI PRIUS 153 (1825).................
Sandon v. Jervis (QB 1858), reported in: 4 THE JURIST (N EW SERIES ) 737 (1859) ..............................
Sheriff of Hampshire v. Godfrey (1738), 87 Eng. Rep. 1247 (KB) .................................................. 12, 13
Simpson v. Hill (KB 1795), reported in: 1 ISAAC ESPINASSE, REPORTS OF CASES ARGUED & RULED AT NISI PRIUS 431 (London: G. Auld 1801) ..............
Torres v. Madrid, 769 F. App’x 654 (10th Cir.
- ................................................................ passim
Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891) ................................................................... 8, 16
United States v. Carloss, 818 F.3d 988 (10th Cir.
- ..........................................................................
United States v. Jones, 565 U.S. 400 (2012) ....... passim
Virginia v. Moore, 553 U.S. 164 (2008) ..................... 4, 7
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TABLE OF AUTHORITIES—Continued Page
Wall & Wall v. Osborn, 12 Wend. 39 (N.Y. Sup. Ct. 1834) ....................................................................
Weems v. United States, 217 U.S. 349 (1910) ...............
Whithead v. Keyes, 85 Mass. 495 (1862) ................. 9, 14
William & Jones & Others (1736), 95 Eng. Rep. 193 (KB)...................................................................
Wyoming v. Houghton, 526 U.S. 295 (1999) .................
CONSTITUTIONAL PROVISION
U.S. Const. amend. IV ....................................... 1, 3, 6, 7
O THER AUTHORITIES
1 EDWARD H YDE EAST, A TREATISE OF THE PLEAS
OF THE CROWN (Philadelphia: P. Byrne 1806) .........
1 JOSEPH CHITTY , A PRACTICAL TREATISE ON THE CRIMINAL LAW (London: A. J. Valpy 1816) ...............
1 THOMAS WATERMAN , A TREATISE ON THE LAW OF TRESPASS IN THE TWOFOLD ASPECT OF THE WRONG AND THE REMEDY (New York: Baker, Voorhis & Co. 1875) .................................................
1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (1768) ..................................................
1 WILLIAM D ICKINSON , A PRACTICAL EXPOSITION OF THE LAW RELATIVE TO THE O FFICE AND D U- TIES OF A JUSTICE OF THE PEACE (London: Reed & Hunter 1813) .......................................................
INTEREST OF THE AMICUS CURIAE^1
Restore the Fourth, Inc. is a national, non-partisan civil liberties organization dedicated to robust en- forcement of the Fourth Amendment to the United States Constitution. Restore the Fourth believes that everyone is entitled to privacy in their persons, homes, papers, and effects and that modern changes to tech- nology, governance, and law should foster—not hin- der—the protection of this right.
To advance these principles, Restore the Fourth oversees a network of local chapters, whose members include lawyers, academics, advocates, and ordinary citizens. Each chapter devises a variety of grassroots activities designed to bolster political recognition of Fourth Amendment rights. On the national level, Re- store the Fourth also files amicus curiae briefs in sig- nificant Fourth Amendment cases.^2
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(^1) This amicus brief is filed with the consent of Petitioner and Respondents. No counsel for a party authored this brief in whole or in part; nor has any person or entity, other than Restore the Fourth and its counsel, contributed money intended to fund the preparation or submission of this brief. (^2) See, e.g., Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mitchell v. Wisconsin, No. 18-6210 (U.S. filed Mar. 4, 2019); Brief of Amicus Curiae, Restore the Fourth, Inc. in Support of Petitioner, Collins v. Virginia, No. 16-1027 (U.S. filed Nov. 17, 2017); Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Byrd v. United States, No. 16- (U.S. filed Nov. 16, 2017).
SUMMARY OF THE ARGUMENT
Over the course of 150 years, the common law achieved a deep understanding about what is—and is not—an arrest. This tradition uniformly establishes that “[a]n arrest requires either physical force” or “sub- mission to the assertion of authority.” California v. Ho- dari D., 499 U.S. 621, 626 (1991). In short, arrests may be either physical or constructive.
The common law also teaches that any amount of physical force, even if unsuccessful, will prove an ar- rest. See id. at 625. Yet, the Tenth Circuit here ruled that gunfire used to restrain Petitioner Torres was no arrest because Petitioner “did not stop or otherwise submit to the officers’ authority.” Torres v. Madrid, 769 F. App’x 654, 656–57 (10th Cir. 2019).
This is a problem. Courts are bound to uphold “that degree of privacy against government that ex- isted when the Fourth Amendment was adopted.” United States v. Jones, 565 U.S. 400, 406 (2012). The decision below cannot be squared with this mandate or the indispensable rights that it protects.
This case, then, is about more than just the mean- ing of arrest. This case is about the respect that courts owe to common-law history in deciding Fourth Amend- ment disputes. The Court should now use this case to drive home this principle, so that “[r]ights declared in words” are not “lost in reality.” Weems v. United States, 217 U.S. 349, 374 (1910).
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against government that existed when the Fourth Amendment was adopted.” Jones, 565 U.S. at 406.
Jones’s critical achievement is now in jeopardy. “American courts are pretty rusty at applying the tra- ditional approach to the Fourth Amendment.” Carpen- ter v. United States, 132 S. Ct. 2206, 2267–68 (2018) (Gorsuch, J., dissenting). This approach calls for care- ful review of “the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164, 168 (2008). Only then is it possible to extend “the specific rights known at the founding” to “their modern analogues.” Carpenter, 132 S. Ct. at 2271 (Gorsuch, J., dissenting).
Unfortunately, faced with this task, lower courts have opted for an easier path: neglecting common-law history altogether. An illustrative example is LMP Ser- vices, Inc. v. City of Chicago, 95 N.E.3d 1258 (Ill. App. Ct. 2017), aff ’d, No. 123123, 2019 Ill. LEXIS 658 (Ill. May 23, 2019). An Illinois state court ruled that no “search” was entailed by a city ordinance requiring all food trucks to have global-positioning-system (GPS) devices and provide the GPS data to the city. See id. at 1265, 1274–76.
In reaching this conclusion, the court made no ef- fort to review “the common law when the [Fourth] Amendment was framed.” Wyoming v. Houghton, 526 U.S. 295, 299 (1999). The court instead assumed that this tradition only concerned physical intrusions. See LMP Servs., 95 N.E.3d at 1275–76. And on this basis,
the court found that the GPS requirement was not a “search” as the city did not “physically enter[ ] [a]... food truck to place [a] [GPS] device” and none of the GPS devices were “[c]ity property.” Id.
Such reasoning neglects common-law history es- tablishing a long-standing doctrine of “constructive trespass.” Haythorn v. Rushforth, 19 N.J.L. 160, 165 (1842) (collecting cases). Under this doctrine, “any un- lawful interference with or assertion of control over the property of another” is a trespass. Wall & Wall v. Os- born, 12 Wend. 39, 40 (N.Y. Sup. Ct. 1834). This enabled the common law to reach a “threat[ ] to remove goods
... although the goods are not touched by the officer.” Haythorn, 19 N.J.L. at 165.
In light of this history, the GPS requirement in LMP Services was a “search,” as it was an “assertion of control over the property of another,” with the City mandating “under pretence of... right” that all food trucks must contain a GPS device. Id. The only way to avoid this conclusion is to neglect common-law history by focusing on the lack of a physical trespass despite the presence of a constructive^4 one. And that is just what the Illinois court in LMP Services did. See 95 N.E.3d at 1276 (finding the lack of a “physical occupa- tion of property” to be the “key issue”).
The present case, Torres, neglects common-law history in the other direction: by focusing on the lack of a constructive trespass despite the presence of a
(^4) “Constructive” means “[l]egally imputed” or “having an ef- fect in law though not necessarily in fact.” B LACK’S LAW D ICTION- ARY 333 (8th ed. 2004).
panel ruled that the shooting was no arrest because “[d]espite being shot, Torres did not stop or otherwise submit to the officers’ authority.” Id. at 657. Such anal- ysis collapses the legal distinction between construc- tive arrests (which require a show of submission) and physical arrests (which do not). And this is no small detail, but rather a central aspect of common-law his- tory that Hodari D. expressly strives to carry forward.^5 See 499 U.S. at 626 & n.2.
This makes Torres another case of a lower court neglecting “the norms that the Fourth Amendment was meant to preserve.” Moore, 553 U.S. at 168. Such neglect obviously erodes this Court’s achievement in restoring common-law history as a core protection against unreasonable searches and seizures. Jones, 565 U.S. at 406. Less obvious—but no less important— is how such neglect also erodes the common law’s own achievement in limiting the power of search and seizure. This is especially true here, with the Tenth Circuit’s decision in Torres serving to unravel the
(^5) Later decisions of this Court do not detract from this point (contrary to the Tenth Circuit’s view). In County of Sacramento v. Lewis, 532 U.S. 833 (1998), the Court held that a person is seized under the Fourth Amendment “only when there is a governmen- tal termination of freedom of movement through means intention- ally applied.” Id. at 844 (emphasis in original). And in Brendlin v. California, 551 U.S. 249 (2007), the Court held “there is no sei- zure without actual submission” when the police attempt to arrest “by a show of authority and without the use of physical force.” Id. at 254. In neither case did the Court suggest that it was abandon- ing Hodari D.’s rule that a Fourth Amendment seizure exists whenever physical force is intentionally used to make an arrest, even if the arrestee does not yield.
common law’s accumulated wisdom that arrests may be either physical or constructive in nature.
II. Out of respect for the person, the common law recognized that an arrest could be ei- ther physical or constructive. “No right [was] held more sacred, or [was] more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person... .” 6 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). Hence, “[a]t common law... the [mere] touching of one person by another without consent and without legal justification was a battery.” Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 269 (1990). The common law even dictated that so long as it was “worn on the person,” jewelry could not be im- mediately seized in order to recover a debt. Union Pac. Ry. Co., 141 U.S. at 251.
Consistent with this view of the person, the com- mon law’s first and foremost definition of arrest^7 was a
(^6) See also, e.g., J OHN LOCKE, SECOND T REATISE OF C IVIL G OV- ERNMENT § 27 (1690) (explaining that every individual has a prop- erty right “in his own person”); S IR MATTHEW HALE, A NALYSIS OF THE LAW : B EING A SCHEME, OR A BSTRACT, OF THE S EVERAL TITLES & PARTITIONS OF THE L AW OF E NGLAND 100 (London: E. Nutt 1716) (“Every man has a right to his own person; and a wrong done to that is nearest to him, because a man has the greatest property in his own person.”). (^7) ‘Arrest’ derives “from the French, arreter, to stop or stay, and signifies a restraint of a man’s person; depriving him of his own will and liberty, and binding him to become obedient to the
Sparks, 87 Eng. Rep. 928 (QB) (per curiam). Genner was a bailiff who had a warrant for Sparks. Id. at 928. Genner came to Sparks’ home and found Sparks in the yard. Id. Genner “pronounced the word arrest, but did not lay his hands on [Sparks].” Id. Sparks then “snatched up a pitchfork” and used it to keep Genner at bay. Id. Sparks finally “retreated into his house and shut the door against [Genner].” Id.
The court held there was “no arrest” because Gen- ner never “laid [his] hands” on Sparks. Id. Had Genner “touched [Sparks]... even with the end of his finger,” this would “[have] been an arrest.” Id. at 929. But Gen- ner “pronouncing the word ‘arrest,’ without touching [Sparks]” fell short. Id. at 928. In the court’s view, this was “no more an arrest” than a bailiff telling a person at a distance looking out a window that the bailiff was “arrest[ing] him.” Id. at 928–29.
Genner thus affirmed the common law’s physical view of arrests. The case also exposed key problems with this view being the only way to prove an arrest. If every arrest required some form of physical contact, every arrest necessarily risked a physical altercation or bodily injury. 10 Put another way, a physical view of arrest undercut the idea that “[i]f an officer say
(^10) See 1 W. B LACKSTONE , C OMMENTARIES ON THE LAWS OF E NG- LAND 130 (1768) (“For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion.”).
to [a] party, ‘I arrest you in the king’s name,’ the party
... ought to obey him.”^11
The common law’s physical view of arrests also did not account for the fact that officers were “not obliged to use violence or menace” in making arrests, “but had a right to abstain from any unnecessary force.” Josselyn v. McAllister, 25 Mich. 45, 48 (1872). Arrests lacking physicality, in turn, were no less arrests. In 1736, Chief Justice Hardwicke illustrated this point with a hypothetical: “if a bailiff comes into a room, and tells the defendant he arrests him, and locks the door, that is an arrest.” William & Jones & Others (1736), 95 Eng. Rep. 193, 194 (KB).
Enter Horner v. Battyn (KB 1738). 12 At issue was an objection to a acquiesced-to arrest because “the bail- iff... never touched the defendant.”^13 The court over- ruled the objection, finding “[t]his is a good arrest.”^14 The court explained that if a person “go[es] or fle[es] from [a bailiff ], it could be no arrest unless the bailiff had laid hold of him.”^15 But if a bailiff says to a person
(^11) 1 WILLIAM D ICKINSON , A PRACTICAL E XPOSITION OF THE LAW R ELATIVE TO THE O FFICE AND D UTIES OF A J USTICE OF THE PEACE 117 (London: Reed & Hunter 1813). (^12) Reported in: W ILLIAM LOYD, C ASES ON C IVIL PROCEDURE 798 (1916); see also, e.g., Pike v. Hanson, 9 N.H. 491, 493 (1838) (citing Horner); Hollister v. Goodale, 8 Conn. 332, 335 (1831) (same); see generally FRANCIS B ULLER , A N I NTRODUCTION TO THE LAW R ELATIVE TO TRIALS AT NISI PRIUS 61–62 (London: W. Strahan & M. Woodfall
- (detailing Horner). (^13) LOYD, supra note 12, at 798. (^14) Id. (^15) Id.
and he prays to go to a house to [stable the horse], it is a submission... .” Id.
None of this, however, lessened the common law’s separate appreciation of physical arrests. Just con- sider Sandon v. Jervis (QB 1858).^21 All three presiding judges reaffirmed Genner and the physical view. 22 Justice Erle deemed it “clear” that “the touch of the sheriff ’s officer constitutes an arrest.”^23 Justice Comp- ton agreed: “The touch is the test, and it is no part of the test that the officer must have corporal possession of the party.” 24 Justice Hill finally declared that “touch- ing in the most indefinite manner is sufficient” to prove an arrest.^25
Such analysis then confirms that the common law’s development of a constructive view of arrests nei- ther replaced nor merged with the common law’s orig- inal physical view of arrests.^26 Rather, the two operated side by side. This can be seen in cases like Simpson v. Hill (KB 1795), 27 where Chief Justice Eyre explains that an arrest would occur if either: (1) a constable
(^21) Reported in: 4 THE J URIST (N EW SERIES ) 737–38 (1859). (^22) See id. (^23) Id. at 738. (^24) Id. (^25) See id. (^26) This resembles the Court’s observation in Jones that when it comes to government searches, “the Katz reasonable-expectation-of- privacy test has been added to, not substituted for, the common- law trespassory test.” 565 U.S. at 409. (^27) Reported in: 1 I SAAC E SPINASSE, R EPORTS OF C ASES A RGUED & R ULED AT NISI PRIUS 431 (London: G. Auld 1801).
“tapped” a person “on the shoulder” and told her “You are my prisoner”; or (2) a person “submitted her- self ” into a “[constable’s] custody.” 28 Berry v. Adamson (KB 1827) then offers the ultimate distillation of this point: to decide a false-arrest claim, a court must first consider if the plaintiff has “either actually or con- structively been arrested?”^29
The same understanding may be seen in leading common-law treatises of the founding era. As one such treatise explained: “[t]o constitute an arrest, the party
... must either be actually touched by the officer... or must submit himself either by words or actions to be in custody.” 30 Another major treatise offered a simi- lar description: an arrest could be made by “laying hold of the prisoner and pronouncing words of arrest” or “without... laying hold of him, if he had before sub- mitted to the arrest.”^31
American state courts took notice. For example, in 1862, the Massachusetts Supreme Judicial Court adopted the common law’s physical view of arrests. See Whithead v. Keyes, 85 Mass. 495, 501 (1862) (“[A]n of- ficer effects an arrest of a person... by laying his hand on him for the purpose of arresting him, though he may
(^28) Id. (^29) Reported in: 6 R. B ARNEWALL & C. C RESSWELL, R EPORTS OF C ASES A RGUED & D ETERMINED IN THE C OURT OF K ING ’S B ENCH 528, 530 (London: A. Strahan 1828) (bold added). (^30) 1 J OSEPH CHITTY , A PRACTICAL TREATISE ON THE C RIMINAL LAW 48 (London: A. J. Valpy 1816) (bold added). (^31) 1 E DWARD HYDE E AST, A TREATISE OF THE PLEAS OF THE C ROWN 300 (Philadelphia: P. Byrne 1806).
