Understand What’s Reasonable Under the 4th Amendment
Often, assumptions are made by police officers, criminal defense attorneys, judges, prosecutors and attorneys representing police officers in civil rights litigation that because officers applied physical force or shot a suspect, the suspect has been seized within the meaning of the Fourth Amendment. The Brooks v. Gaenzle case illustrates that isn’t always true. Knowing whether the application of physical force really constitutes a seizure could mean the difference in a plea bargain, jury verdict or settlement down the road. iStock
FEATURED IN TRAINING
Police officers who receive legal blocks of training are typically taught in their police academies and in continuing education that whenever an officer lays a hand on an individual, he has “seized” that person within the meaning of the Fourth Amendment. It follows then that whenever an officer’s bullet strikes an individual, the officer has also “seized” the person. Generally, this is true—but not in all cases.
By now, followers of this column know that for plaintiffs suing the police for violations of their Fourth Amendment rights, they’re required to prove two basic elements: that the police officer “seized” the person or thing, and that the seizure was unreasonable. Too often, it’s assumed—even by competent defense attorneys representing the law enforcement community—that in any given case where the police officer or some object within the control of the police officer, touched a person, the officer has seized them. Then the only question left to be determined is whether that seizure was unreasonable in violation of the Fourth Amendment.
However, as the following case illustrates, even when a police officer shoots at a suspect, and the bullet strikes the person, the officer may not have seized the suspect within the meaning of the Fourth Amendment.
Brooks v. Gaenzle
In Brooks v. Gaenzle,1 Keith Clayton Brooks filed a federal civil rights lawsuit under 42 U.S.C. § 1983 against two El Paso, Colo., sheriff’s deputies as a result of a shooting following an attempted burglary. The deputies filed a motion for summary judgment, which the district court granted.
Brooks’ appeal centered on his argument that the deputies violated his Fourth Amendment right to be free from an unreasonable seizure when they shot him after he fled the scene of a burglary during which Brooks shot at the responding deputies at close range. Brooks argued that the district court was wrong in finding that the deputies didn’t seize him when they shot him. He also argued that the court erred when it gave its alternative reason that the deputies acted objectively reasonable under the totality of the circumstances.
On Oct. 17, 2005, Brooks and Nick Acevedo broke into a garage with the intent to burglarize the attached house. Neighbors contacted the police and Deputies Steve Gaenzle and Terry Maketa were dispatched. When they arrived, the deputies heard what sounded like two or more people talking inside the house. They announced their presence and entered the garage. In doing so, they saw a white male (now known as Acevedo) who quickly stood up and ran into the main portion of the house blocking the door with his body. As the officers tried to break down the door, a gunshot from inside the house went through the door, barely missing the officers’ heads and shoulders. It was unknown who fired the shot from inside the house.
The deputies retreated to the backyard. Once there, they saw a suspect flee the house and begin to climb a fence. The deputies didn’t know whether the suspect was the person who fired the gunshot. Gaenzle yelled “stop” but the suspect continued to flee. Gaenzle fired one shot, striking the suspect now known to be Brooks, in the buttocks or lower back area.
Without slowing down, Brooks continued to climb the fence with Acevedo following. They both made it over the fence and escaped in a car parked nearby.
Three days later, police officers located Brooks in a mall parking lot located in Colorado Springs, Colo. Thirteen days later, law enforcement authorities shot and killed Acevedo in a gunfight with the weapon used in the burglary.
Brooks claimed that he never possessed or used the weapon during the burglary. He also claimed that Acevedo fired the weapon and that the police should have known it was him.
Brooks was eventually charged with several crimes, including attempt to commit murder in the first and second degree and possession of a weapon by a felon. He was convicted by a jury of all seven charges except for possession of a weapon by a felon.
Appellate Court Decision
On appeal, Brooks contended that the district court was incorrect in finding that no seizure occurred, or, in the alternative, that Gaenzle used objectively reasonable force under the circumstances.
The Tenth Circuit Court of Appeals began with the oft-cited premise that the Fourth Amendment protects individuals against unreasonable searches and seizures. In order to succeed on a Fourth Amendment claim, a plaintiff must first establish that a seizure had occurred before determining whether the officer’s actions were reasonable.
The court repeated the holdings of several Supreme Court cases regarding the laws of seizures: “a ‘seizure’ triggering the Fourth Amendment’s protections occurs only when the officer has, ‘by means of physical force or show of authority, … in some way restrained the liberty of a citizen. . . .”2
After Terry, the Supreme Court further explained that “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.”3 This principle was applied to a situation involving the shooting of a fleeing suspect in the infamous Garner case, stating “whenever an officer restrains the freedom of a person to walk away, he has seized that person.”4 Further, “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.”5
According to the appellate court, these cases undoubtedly stand for the proposition that a “seizure” requires restraint of one’s movement and includes apprehension by deadly force.6 The court of appeals was careful to point out that use of deadly force alone doesn’t always constitutes a seizure.7 “Instead, a clear restraint of freedom of movement must occur.”8
The Tenth Circuit Court of Appeals distinguished the Supreme Court’s cases dealing with flight situations, which Brooks relied on to support his contention that the use of deadly force against him constituted a seizure. For example, in Brower v. County of Inyo,9 police set up a roadblock (placing a semi-truck and trailer across a roadway) intended to stop a motorist driving a stolen vehicle who was fleeing from police at high speeds. The Supreme Court held that this constituted a seizure because the person was “stopped by the very instrumentality set in motion or put in place” to accomplish that task.10
The Supreme Court stated, “A Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even where there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.”11
The Supreme Court explained further, “a violation of the Fourth Amendment requires an intentional acquisition of physical control.”12
In applying these principles to Brooks’ case, the appellate court stated, “it is clear the gunfire which struck Mr. Brooks was intentional and intended to stop him, but he was not ‘stopped by the very instrumentality set in motion’ for that purpose and, instead, he continued to flee and elude authorities for days.’”13
The court of appeals also relied on the Supreme Court’s Hodari decision for support. There, a police foot pursuit of a suspect constituted a show of authority requiring him to stop, but no seizure occurred until the officer tackled him because, until then, the suspect failed to yield or submit to the officer’s show of authority.14 The question before the court in Hodari was “whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the suspect does not yield.”15 In reaching the conclusion that a seizure didn’t occur until the suspect was tackled, the Court held that the word “seizure” didn’t mean merely to grasp or apply physical force, but to actually bring a suspect under control.16
The appellate court reiterated that Hodari “clarifies that a seizure cannot occur unless a show of authority results in the suspect’s submission.”17 It also noted that “some form of intentional acquisition of physical control, through termination of movement by physical force or submission to a show of authority, must occur in flight cases for a seizure to occur.”18
The Court of Appeals summarized these principles with the Supreme Court’s most recent decision on this issue. A “person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.”19 As to those situations where there is no physical force used, a “police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”20
As to what constitutes actual submission, the court stated that that would depend on the totality of the circumstances. As stated in Brendlin, “what may amount to submission depends on what a person was doing before the show of authority; a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.”21
The appellate court held that Deputy Gaenzle may have intended to shoot Brooks and, indeed, did so. But clearly he didn’t terminate Brooks’ movement or otherwise have physical control over him. As such, Deputy Gaenzle didn’t seize Brooks.22 Because there was no seizure, there was no need by the appellate court to determine whether his use of force was reasonable or not. Without a seizure, there’s no Fourth Amendment violation.
1. 614 F.3d 1213 (10th Cir. 2010).
2. 614 F.3d at 1219 (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)).
3. Id. (citing United States v. Mendenhall, 446 U.S. 544, 553 (1980) (emphasis added)).
4. Id. (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)).
7. Id. (emphasis added).
9. 489 U.S. 593, 594-95, 598-99 (1989).
10. Id. at 599.
11. Id. at 596-97 (emphasis added).
12. Id. at 596.
13. 614 F.3d at 1220.
14. California v. Hodari D., 499 U.S. 621, 622-24 (1991).
15. Id. at 626.
16. See id. at 624.
17. 614 F.3d at 1221 (citing 499 U.S. at 629).
19. 614 F.3d at 1221 (citing Brendlin v. California 551 U.S. 249, 254 (2007)).
22. The 6th, 7th and 9th federal circuit courts also require a submission to authority after some physical force is used for there to be a seizure.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.