Somewhere, Beyond the Seize: Implications of Post-Force Facts and Subjective Intent Inclusion on Fourth Amendment Seizure Analysis

by Nicole Newton, Lead Blog Citations Editor, University of Cincinnati Law Review Vol. 92

I. Introduction

On June 26, 2018, licensed attorney Andrea Martinez made arrangements with officials from U.S. Immigration and Customs Enforcement (“ICE”) to reunite her client with her client’s three-year-old son at an ICE facility, in preparation for their deportation.¹ Martinez would later leave the facility with a broken foot and a concussion, resulting from force used by ICE Officers to prevent Martinez from entering the detention facility.² Despite these circumstances, the Eighth Circuit determined that ICE officials had not seized Martinez when they deployed the force that resulted in her injuries.³

The Eighth Circuit’s assessment in Martinez v. Sasse is not particularly unusual in Fourth Amendment seizure determinations where no arrest occurred. Despite an abundance of Supreme Court cases creating a framework for force-based seizures, confusion abounds within the circuit courts on when force used for purposes other than apprehension constitutes a seizure.

Despite the Supreme Court’s clear holdings that a subjective intent analysis into the law enforcement officer’s state of mind,⁴ or the citizen’s subjective perception of the encounter, has no relevance to the seizure analysis outside establishing that the contact was intentional,⁵ some circuit courts continue to deviate in that direction. By considering the purpose for the application of force—apprehension (seizure by legal process)⁶ versus repulsion (the act of driving back)⁷—the courts are incorporating the officer’s intent into the seizure analysis. This misdirection is troubling and has lent itself to consideration of facts beyond the moment of contact between officer and citizen. The query into post-force facts by some circuit courts requires a prognostic evaluation by the officer and the citizen, resulting in a series of ambiguous and ill-conceived standards for determining when a seizure has occurred.

II. Background

The Fourth Amendment protects people from unreasonable seizures by the government. When a seizure is found to be unreasonable, it is a constitutional violation.

As the Supreme Court jurisprudence on Fourth Amendment seizures has developed, the Court has increasingly recognized the coercive effects of physical force and shows of authority by law enforcement.⁸ The Court’s emphasis on an objective reasonable person’s understanding of a police-citizen encounter would appear at first to be a strong framework for circuit court applications. However, the prevalence of Supreme Court cases involving formal arrests or show of authority fact patterns have led some circuit courts to misemploy the Court’s holdings.

A. Supreme Court Precedent

A seizure occurs whenever law enforcement confronts a citizen and restricts their freedom to leave.⁹ In Terry v. Ohio, the Court considered whether the “stop and frisk”¹⁰ by a plain clothes police officer, resulting in the seizure of weapons, fell under the protections of the Fourth Amendment.¹¹ With Terry, the Court began to draw distinctions between the terms “arrest” and “seizure.”¹² Unequivocally holding that an arrest is sufficient, but not necessary to produce a seizure, the Court recognized that police-initiated restraint on citizens can result in a seizure, regardless of whether an arrest follows.¹³ The Court made it clear that the Fourth Amendment applies to police contacts outside of “technical arrest” and “full-blown searches”¹⁴ while expressing concern about the notion of exempting brief detentions from Fourth Amendment scrutiny¹⁵

Focusing on the present facts of the encounter in Terry, the Court contemplated the encroachment on individual autonomy and the shame accompanying a police search conducted in public.¹⁶ After deciding Terry, the Court applied the holding to other brief detentions by law enforcement, when the purpose was something other than apprehension or formal arrest.¹⁷

A person has not been seized absent a showing of physical force, or submission by the person to the officer’s show of authority.¹⁸ In California v. Hodari D., the Court found a seizure had not occurred at the moment the defendant dropped a package of cocaine in response to a law enforcement officer running in his direction, despite being tackled by the officer almost immediately after dropping the cocaine.¹⁹ Relying on the common law definition for arrest and finding that “seizure” denotes the “laying on hands or application of physical force to restrain movement,” the Court defined the two distinct ways in which a seizure can occur: physical force or submission to authority.²⁰ The Court determined the moment of seizure occurred simultaneously with the moment the officer applied force.²¹ Therefore, the defendant was only considered seized at the time the officer tackled him, not when he dropped the package.²²

The Court has found on multiple occasions that the subjective intent of the officer has no place in Fourth Amendment analysis.²³ In Brendlin v California, the Court found that a passenger in a vehicle stopped by police was seized within the meaning of the Fourth Amendment, even when the police intended to detain only the driver.²⁴ Combining their holdings in Bostock,²⁵ Terry,²⁶ and Brower,²⁷ the Brendlin Court created a test for when a seizure occurs, finding, “[a] person is seized by the police. . .when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.”²⁸ The Court found the California Supreme Court erred when it considered the officer’s subjective intent to stop only the driver of the vehicle and not the passenger²⁹ Citing Chesternut, the court reemphasized that the only intent for purposes of determining when a seizure occurs is the intent which “has been conveyed to the person confronted.”³⁰

The intentional exercise of physical force by a government officer against a person for the purpose of restraint is a seizure, regardless of whether the restraint successfully subdues the person.³¹ In Torres v. Madrid, the Court found police had seized a fleeing female defendant when police shot her, even though she was ultimately successful in evading them.³² Once again the Court rejected an inquiry into the subjective intent of the officer, and reiterated the importance of assessing whether the officer’s conduct objectively manifested intent to restrain.³³ The Court found that among other considerations, the intensity and form of the force applied is essential to the objective intent analysis.³⁴

B. The Circuit Split

The various circuit courts have applied the Supreme Court seizure jurisprudence inconsistently. In some instances, the Seventh and Eighth Circuits have considered the subjective intent of the law enforcement officer and post-force facts. Meanwhile, the Sixth Circuit cases adhere more closely to the Supreme Court cases and focus on the objective reasonable person standard when the officer applied force.

1. Seventh Circuit

The Seventh Circuit’s reliance on post-force facts has created a model of jurisprudence which shifts the focus of the seizure analysis beyond the moment when the officer applies force. The cases in this subsection illustrate the inconsistencies in the Seventh Circuit’s analysis of Fourth Amendment seizures.

a. McCoy v. Harrison

On November 7, 1996, Animal Welfare Officer Raymond Harrison entered the property of Tiffany McCoy to inspect it for suspected animal welfare violations and an altercation between Harrison and McCoy ensued.³⁵ According to McCoy, Harrison “backhanded” her, causing her to fall to the ground, and held her arm while digging his fingernails into her skin.³⁶ Harrison then let go and left the property. McCoy entered her house and called police.³⁷

The McCoy court held that a seizure had not occurred because despite Harrison’s force which resulted in McCoy’s fall to the ground and injuries (fingernail marks on her arm), McCoy’s freedom of movement was not restrained at any time.³⁸ The court primarily based its holding on the events immediately following the cessation of physical force by Harrison, finding significance in two facts: (1) that Harrison left the property without attempting to “restrain” McCoy after she was knocked to the ground and (2) that McCoy was able to stand and enter her dwelling after Harrison left the property.³⁹

b. Acevedo v. Canterbury

On August 22, 2001, Edward Acevedo arrived at an auto-impound yard to retrieve his friend’s borrowed vehicle that had been previously towed.⁴⁰ After a verbal altercation between Officer Canterbury and Acevedo, Officer Canterbury charged at Acevedo, hitting Acevedo’s head with his fist and causing Acevedo to reel backwards several feet before falling to the ground.⁴¹ Acevedo was later arrested.⁴²

The court considered the totality of the circumstances in differentiating between their holding in McCoy and the Acevedo case, emphasizing that the officer in McCoy immediately left the scene and the citizen was able to go back into her home.⁴³ In Acevedo, the court found not only the location of the incident significant—a law enforcement controlled impound yard far from Acevedo’s home—but also the amount of force applied and the resulting injury—Acevedo needed to go to the hospital.⁴⁴ The Acevedo court also focused on the post-force facts, finding it relevant that Acevedo lost consciousness for a moment after Officer Canterbury struck him in the head and was briefly incapable of leaving.⁴⁵ By failing to address whether Acevedo would have felt free to leave based on the reasonable objective person standard, the court seemed to imply that being incapable of leaving (or walking away) was equivocal to believing he was not free to walk away. Viewing the evidence in a light most favorable to Acevedo, the Seventh Circuit reversed the lower court’s decision, finding that, “[a] blow by a police officer that immobilizes the recipient easily meets [the] definition of a seizure. The fact that the restraint on the individual’s freedom of movement is brief makes no difference.”⁴⁶

2. Eighth Circuit

Like the Seventh Circuit, the Eighth Circuit has also taken a casuistic approach. Although the Eighth Circuit relied in part on Atkinson v. Mountain View in its Martinez analysis (as will be discussed below), the approach used in deciding the two cases could not be more different.⁴⁷ In Atkinson, the court was concerned with whether the force used constituted a restraint on the person’s movement and expressly declined to consider the officer’s purpose in applying the restraint.⁴⁸ The Eighth Circuit later abandoned this approach in Martinez v. Sasse, choosing to focus almost entirely on post-force facts and the subjective intent of the officer.⁴⁹

a. Atkinson v. Mountain View

On August 31, 2007, retired military police officer Mark Atkinson attended his nephew’s varsity football game.⁵⁰ After the game, Atkinson attempted to intervene in an altercation between Atkinson’s brother-in-law and Mountain View Police Chief Derek Sanders, the latter of whom was not in uniform.⁵¹ Chief Sanders charged Atkinson, knocking him backwards approximately ten to fifteen feet, and slamming him into a parked vehicle.⁵² Atkinson suffered broken ribs and a punctured lung.⁵³

The Eighth Circuit noted that in the common law, as acknowledged by the Supreme Court in Hodari, mere touch amounted to an arrest and its “understanding of a Fourth Amendment seizure of a person flows from common law.”⁵⁴ The Atkinson court applied the test articulated in Brower that physical force must be willfully applied, and the test from Brendlin finding that intent of the officer executing the force is “determined by the officer’s objective behavior, not his subjective intent.”⁵⁵ Quoting Brendlin and Hodari D., the Eighth Circuit emphasized that in order to equate to a seizure, the force must “restrain” the individual’s freedom of movement but noted that the restraint does not have to stop or hold the person for any length of time.⁵⁶ The Eighth Circuit determined that the force exerted by Chief Sanders against Atkinson was “far more than light physical touch” and “more than enough physical force to effect a seizure under the Fourth Amendment.” In regard to the amount of force used, the Atkinson court specifically referenced the Seventh Circuit’s finding in Acevedo that force which causes someone to “reel backwards and fall to the ground” constitutes a seizure.⁵⁷

b. Martinez v. Sasse

At 3:30 a.m. on June 26, 2018, licensed attorney Andrea Martinez arrived in the parking lot of the Platte County Detention Center intending to reunite her detained client, Kenia Bautista-Mayorga, with Bautista-Mayorga’s three-year-old son in preparation for their deportation.⁵⁸ Accompanying Martinez was Luis Alfredo Diaz Inestroza (Bautista-Mayorga’s partner). During her previous telephone call, ICE officials told Martinez that Diaz Inestroza would not be detained.⁵⁹ However, once they arrived at the detention facility, ICE Officer Everett Chase seized Diaz Inestroza and forcibly walked him into the detention facility entrance.⁶⁰ As Martinez attempted to follow Diaz Inestroza into the facility, Officer Chase suddenly backed up, colliding with Martinez.⁶¹ ICE Officer Ronnet Sasse then pushed Martinez to the ground with enough force to fracture her right foot and cause her to suffer a concussion.⁶² Officer Chase and Officer Sasse then entered the facility, leaving Martinez on the ground.⁶³

The issue before the Eighth Circuit was whether Officer Sasse seized Martinez when Sasse pushed Martinez to the ground.⁶⁴ Officer Sasse argued that force used to repel someone was not a seizure within the meaning of the Fourth Amendment because it did not equate to restraint.⁶⁵ Martinez relied on the Supreme Court’s holding in Torres that a restraint can result in a seizure, regardless of how brief it is.⁶⁶ The Martinez court distinguished the case by asserting that because the force used in Torres was intended to apprehend, and Officer Sasse was claiming she intended to instead repel Martinez, the holding in Torres would not have applied.⁶⁷ Finding that force used to repel is not a seizure, the Eighth Circuit further distinguished this case from Atkinson v. City of Mountain View, because in Atkinson, the citizen was handcuffed and arrested by other officers shortly after the initial officer discontinued the force.⁶⁸

3. Sixth Circuit

The Sixth Circuit takes a more pragmatic approach to evaluating when a seizure has occurred by focusing the objective standard analysis on the moment the force is applied, resulting in a clearer test.

On May 13, 2004, Officer Cory Carson accompanied Dr. Leroy Waite to his home to retrieve some property pursuant to a divorce decree.⁶⁹ Dr. Waite provided a copy of the order to his wife, Linda Slusher, for her review.⁷⁰ When Officer Carson asked Slusher to return the order, she refused. Officer Carson grabbed both of Slusher’s hands and, according to Slusher, pressed his thumb into her palm and twisted her fingers back.⁷¹

The Sixth Circuit disagreed with the lower court’s finding that there was “no indication that Slusher was not free to walk away and ignore the deputies.⁷²” The appellate court found that Officer Carson seized Slusher when Officer Carson grabbed her hand because her “liberty was restrained.”⁷³ The court concluded that a reasonable person standing in Slusher’s shoes would have believed they were not free to leave or to ignore Officer Carson, and that Officer Carson seized Slusher “when she was physically grabbed.⁷⁴” Unlike the Eighth Circuit in Martinez, the subjective intent of the officer played no role in the Sixth Circuit’s analysis.

III. Discussion

The difficulty in applying Fourth Amendment seizure jurisprudence to non-arrest law enforcement encounters, is that the precedential Supreme Court cases on this issue have occurred within the context of an arrest. This absence of analogous caselaw has induced the Eighth Circuit to differentiate between force used to apprehend or arrest, and force used for other purposes, excluding the latter from its seizure analysis.⁷⁵ Focusing Fourth Amendment seizure analysis on the moment when the officer applies force, rather than on post-force facts, would create a stronger framework for determining when a seizure occurs. Further, establishing a standard which provides reliable guidance for law enforcement officers regarding when Fourth Amendment protections are triggered is essential for both officer and citizen⁷⁶ safety during encounters.

The tendency of some circuit courts to shift their analysis to the officer’s subjective intent instead of relying on the objective reasonable person standard proves to be a vague and unworkable standard for both courts and law enforcement when determining whether a particular action will invoke Fourth Amendment evaluations of reasonable force. Equally problematic is how some courts have expanded the point-in-time seizure analysis to include the application of post-force facts. The inclusion of post-force facts requires a peace officer to look beyond their application of force to consider what may occur after the force ends and creates an imprecise model that invites conjecture.

The Eighth Circuit’s decision in Martinez hinged on the officer’s assertion that she applied force intending to repel the attorney and not to apprehend.⁷⁷ By focusing on the intended purpose of the force application, the Eighth Circuit sits in direct opposition to the Supreme Court’s clear precedent that an officer’s subjective intent is not relevant to the threshold question of whether a seizure has occurred.⁷⁸ The Court has never intimated that clairvoyance is a necessary attribute of the objective reasonable person. Furthermore, by extending the scope of applicable facts through reliance on the post-force facts in Atkinson, the Eighth Circuit directs its analysis to the wrong moment in time. In terms of Fourth Amendment analysis of force-based seizures, the focus should remain on the moment the force is applied and any attempt to look beyond that moment is erroneous and unnecessary.

The Supreme Court’s use of the phrase “free to leave” in Mendenhall, Chesternut, Bostick, and Brendlin has caused additional confusion for circuit courts that focus exclusively on that phrase, rather than incorporating and the contextual examples that follow in those decisions. Significantly, those decisions were based on case facts reflecting alleged shows of authority and the decisions did not consider the use of direct force. In Mendenhall, the Court did contemplate a force-based scenario and focused on factors in existence at the moment the force is applied (e.g., threatening presences of multiple officers, physical touching, display of a weapon)⁷⁹ The Court spent no time considering post-force factors.⁸⁰ Further, some circuit courts have ignored the addition language in Mendenhall and not considered whether the force applied constituted an “intrusion” of the person’s “liberty or privacy.”⁸¹ Isolating the term “free to leave” from the accompanying examples in the Mendenhall decision has led some circuit courts to shift attention away from the restraint on a person’s liberty and bodily autonomy at the time the force is applied, to instead focus on post-force facts in the analysis.⁸²

Even if the circuit courts choose to ignore the dicta in Hodari D. that mere touch is sufficient to constitute a seizure and choose instead to focus on whether an objective reasonable person, based on the totality of the circumstances, would feel that they were free to leave from an encounter with a law enforcement officer, the courts must confine the analysis to the period when the officer is actively applying force. By inappropriately focusing the analysis on post-force facts in McCoy, Acevedo, and Martinez, the Eighth and Seventh Circuits have missed the mark.⁸³ Post-force events are irrelevant to whether a reasonable person would believe they were free to leave at the time the force was applied.

Restraining someone’s freedom to walk away for a sustained period is sufficient, but not necessary, to amount to a seizure, and to require it conflicts with the Court’s assertion that seizures can be brief.⁸⁴ Applying such a standard erroneously emphasizes what happens after the seizure and removes the focus from the momentary intrusion upon a person’s bodily autonomy and liberty. The Court has never emphasized the length of a seizure—in fact, stating that the seizure can be brief—and to place importance upon what a citizen can do immediately after a seizure (like walk away) does just that.⁸⁵ The Eighth Circuit acknowledges and applies this framework in Atkinson, but substantially departs from it in Martinez.⁸⁶

When an officer effectively immobilizes a citizen by grabbing their arm, regardless of how brief the contact, the person is not free to “walk away” at that moment. Contrary to the Seventh Circuit’s assertion in McCoy, it is difficult to see how grabbing someone’s forearm and shoving them to the ground does not result in their “freedom of movement being restrained.”⁸⁷ Given that the Court has found that the threatening presence of multiple officers can shift a voluntary contact into a detention,⁸⁸ how can the same logic not be applied to the act of an officer shoving a citizen to the ground with enough force to cause serious injury? Once the officer shoves them, the citizen is no longer free to walk away due to the force applied. What occurs after the officer lets go, or pushes the citizen to the ground, is irrelevant. The moment the contact occurs, there is a specific manifestation of control by the officer and restraint on the person’s movement.

The Seventh Circuit’s consideration of the totality of the circumstances in Acevedo and McCoy is sound, but only as applied to those circumstances in existence at the moment of contact between officer and citizen. The location of the incident—a police impound yard versus the citizen’s own yard—and the magnitude of the force applied could impact an objective reasonable person’s belief about their freedom to leave. The injury’s extent may even bear relevance if perceivable by both parties when the force is applied. For example, an instantly visible injury, like a cut, could impact the perception of whether they were restrained at that moment.

Although post-force factors are beyond the scope of seizure analysis, pre-force factors may bear weight in the analysis because both the officer and the citizen would be aware of those factors when the officer applies the force. An objective reasonable person would consider any verbal warnings or commands issued before the exercise of force. Suppose an officer were to warn citizens to disperse or leave the area before applying force. In that case, an objective reasonable person might have a different understanding of whether they were free to move about as they please.

The consideration of post-force facts implicates crucial public policy questions as well. Citizens are expected to comply with police directives, which is more likely when citizens have a clear understanding that physical force amounts to a seizure. As the Court established in Terry, if the officer walks away post-force, then the seizure has ended, and the citizen is free to walk away. ⁸⁹ Focusing on what happens after cessation of force and the subsequent narrowing of cases where Fourth Amendment protections apply discourages citizen compliance in police encounters. Given the prevalence of police-citizen encounters,⁹⁰ the need for clear guidance on when citizens should feel free to end a police encounter and when they should not has become vital for citizen safety. The application of post-force facts impedes this understanding and creates unnecessary and potentially dangerous ambiguity with regard to police-citizen encounters.

IV. Conclusion

The Eighth Circuit in Atkinson, Seventh Circuit in Acevedo, and Sixth Circuit in Slusher, appropriately applied the Supreme Court framework for Fourth Amendment seizures of a person. By centering the analysis on the time when the officer applied force, and not on post-force facts, these cases establish workable guidelines for citizens and officers in determining when a seizure occurs. These cases further reinforce this standard by declining to consider the officer’s subjective intent or purposes in applying force. In light of the Supreme Court’s holding in Torres,⁹¹ future circuit decisions evaluating force-based seizures should continue to focus on whether liberty of movement is deprived at the moment of seizure and decline to consider the officer’s intent or any post-force facts.

Cover Photo by Logan Weaver on Unsplash

Nicole Newton

Nicole Newton is a 3L University of Cincinnati College of Law. Before law school, she worked for several state agencies in California, including the Department of Social Services and the Department of Veteran Affairs, conducting compliance and employment investigations in licensed care homes. In addition to her work on Law Review, Nicole spent her 2L year as a Litigation Fellow for the Ohio Innocence Project and her summer working on FOIA and government transparency litigation. She hopes to use her experiences to build a legal career based on advocacy and relationship-building.

References

1
Martinez v. Sasse, 37 F.4th 506, 508 (8th Cir. 2022).
2
Id.
3
Id. at 510.
4
Whren v. United States, 517 U.S. 806, 808 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); See also, Michigan v. Chesternut, 486 U.S. 567, 575 n.7 (1988); United States v. Mendenhall, 446 U.S. 544, 554 (1980); This article uses the term “law enforcement officer” as an umbrella term to include local law enforcement, such as police and animal welfare officers, and federal law enforcement, such as FBI agents, ICE officers, or customs and border patrol officers. All government actors must conduct searches and seizures in compliance with the confines of the Fourth Amendment.
5
Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989).
6
Apprehension, Meriam-Webster.com, https://www.merriam-webster.com/dictionary/apprehension (last visited May 4, 2023).
7
Repulsion, Meriam-Webster.com, https://www.merriam-webster.com/dictionary/repulsion (last visited May 4, 2023); Repelling Meriam-Webster.com, https://www.merriam-webster.com/dictionary/repelling (last visited May 4, 2023).
8
Florida v. Bostick, 501 U.S. 429, 431 (1991) (stating the “free to leave language” is not an accurate indicator of an encounter’s coercive effect when the encounter takes place on a bus and the passenger generally has no desire to exit the bus).
9
Terry v. Ohio, 392 U.S. 1, 16 (1968); Chesternut, 486 U.S. at 573.
10
A “stop and frisk” is a pat-down or search of the outer clothing for weapons by law enforcement during a detention. See Terry, 392 U.S. at 4.
11
Id. at 16.
12
Id.
13
Id.
14
Id. at 19.
15
Id. at 17.
16
Id.
17
Davis v. Mississippi, 394 U.S. 721, 726 (1969) (“It is true that at the time of the December 3 detention the police had no intention of charging petitioner with the crime and were far from making him the primary focus of their investigation. But to argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment.”); See also, United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (“The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.”); Cupp v. Murphy, 412 U.S. 291, 294 (1973) (“respondent was detained only long enough to take the fingernail scrapings, and was not formally “arrested” until approximately one month later.”)
18
California v. Hodari D., 499 U.S. 621, 622 (1991).
19
Id.
20
Id. at 622.
21
Id. at 629 (emphasis added).
22
Id.
23
Whren v. United States, 517 U.S. 806, 808 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); See also Michigan v. Chesternut, 486 U.S. 567, 575 n.7 (1988); Mendenhall, 446 U.S. at 554.
24
Brendlin v. California, 551 U.S. 249, 255-57 (2007) (“When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not…[W]hen a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”) (emphasis added).
25
Bostick, 501 U.S. at 434.
26
Terry v. Ohio, 392 U.S. 1, 16 (1968).
27
Brower v. Cty. of Inyo, 489 U.S. 593, 597 (1989).
28
Brendlin, 551 U.S. at 254.
29
Id. at 260.
30
Id. at 261 (citing Michigan v. Chesternut, 486 U.S. 567 (1988)).
31
Torres v. Madrid, 141 S. Ct. 989, 1003 (2021).
32
Id.
33
Id.
34
Id.
35
McCoy v. Harrison, 341 F.3d 600, 603 (7th Cir. 2003).
36
Id.
37
Id.
38
Id. at 605.
39
Id.
40
Acevedo v. Canterbury, 457 F.3d 721, 722 (7th Cir. 2006).
41
Id.
42
Id.
43
Id. at 725.
44
Id. (Finding that, “[i]n a case like this one. . . where a police officer’s use of force causes a man to reel backwards and fall to the ground, a seizure has occurred.”)
45
Id.
46
Id. at 724.
47
Martinez v. Sasse, 37 F.4th 506, 510 (8th Cir. 2022).
48
Atkinson v. City of Mt. View, 709 F.3d 1201, 1208 (8th Cir. 2013).
49
Martinez, 37 F.4th at 510.
50
Atkinson, 709 F.3d at 1205.
51
Id.
52
Id.
53
Id.
54
Id. at 1208 (“Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.”)(citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940)).
55
Id. at 1208.
56
Id.
57
Id. at 1209.
58
Complaint ¶ 18, Martinez v. United States, No. 5:19-CV-06135, 2021 U.S. Dist. LEXIS 65465 (W.D. Mo. Mar. 9, 2021).
59
Id. ¶ 19.
60
Id. ¶ 27.
61
Id. ¶ 33.
62
Id. 35-44.
63
Id. 36.
64
Martinez v. Sasse, 37 F.4th 506, 509 (8th Cir. 2022).
65
Id.
66
Id.
67
Id. Additionally, the Eighth Circuit declined to apply Torres because the Torres decision was issued after the incident at issue in Martinez v. Sass. Id.
68
Id. at 510 (“In Atkinson, however, there was no doubt that the officer applied force to apprehend the citizen, as the man was handcuffed and arrested promptly after the initial use of force. The ‘bull rush’ was not performed to repel the citizen, and the decision did not provide clear guidance on whether force used only for that purpose constitutes a seizure.”).
69
Slusher v. Carson, 540 F.3d 449, 451 (6th Cir. 2008).
70
Id. at 451-52.
71
Id. at 452.
72
Id. at 454.
73
Id.
74
Id.
75
Martinez v. Sasse, 37 F.4th 506, 509-10 (8th Cir. 2022).
76
Citizen is used here to refer generally to a member of the public, and not necessarily to indicate United States citizenship.
77
Martinez, 37 F.4th at 509.
78
Whren v. United States, 517 U.S. 806, 808 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); See alsoMichigan v. Chesternut, 486 U.S. 567, 575 n.7 (1988); United States v. Mendenhall, 446 U.S. 544, 554 (1980).
79
Mendenhall, 446 U.S. 544, 554-55 (1980).
80
Id. at 554-55.
81
Id.
82
O’Boyle v. Thrasher, 638 F. App’x 873, 878 (11th Cir. 2016).
83
McCoy v. Harrison, 341 F.3d 600, 603 (7th Cir. 2003); Acevedo v. Canterbury, 457 F.3d 721, 722 (7th Cir. 2006); Martinez v. Sasse, 37 F.4th 506, 510 (8th Cir. 2022).
84
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).
85
Id.
86
Atkinson v. City of Mt. View, 709 F.3d 1201, 1208 (8th Cir. 2013); Martinez, 37 F.4th at 510.
87
Brendlin v. California, 551 U.S. 249, 254 (2007).
88
United States v. Mendenhall, 446 U.S. 544, 554 (1980).
89
Terry v. Ohio, 392 U.S. 1, 4 (1968).
90
Bureau of Justice Statistics, Contacts Between Police and the Public (2020) https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cbpp20.pdf, (finding that approximately 21% (53.8 million) of U.S. residents age 16 or older had contact with police in 2020).
91
Torres v. Madrid, 141 S. Ct. 989, 993-94 (2021) (finding that a “seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting” because the “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”).