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In the wake of the George Floyd protests, a police shooting case on the Supreme Courts docket has taken on a new sense of urgency and relevance. On Wednesday, the Supreme Court will hold oral argument in Torres v. Madrid, which centers on whether a woman who was shot in the back by police but managed to escape was seized under the Fourth Amendment, and could sue the officers responsible.

Although the question presented to the court is rather arcane, Torres could create a loophole that would make police effectively immune in certain excessive force cases. As the NAACP Legal Defense and Educational Fund warned in a February amicus brief, a decision siding with the officers risks eviscerating the primary vehicles for ensuring accountability for egregious police misconduct. Even worse, such a ruling could open the door to countless more unjustified shootings against innocent people, a burden that will disproportionately affect African-American communities.

The Supreme Court is seen in Washington, Wednesday morning, Oct. 7, 2020. (AP Photo/J. Scott ... [+] Applewhite)

Early one morning in July 2014, Roxanne Torres was dropping off a friend at an apartment complex in Albuquerque. As she was sitting in her car, Torres saw two armed individuals wearing dark clothing and tactical vests approach. One of them even tried to open the drivers side door. Panicked, Torres thought she was being carjacked and began to drive forward. Suddenly, Torres heard gunfire: 13 shots were fired at Torres, with two striking her in the back.

Torres escaped her assailants but quickly lost control of her car. She asked a bystander to call for help. No response. Seeing a car that was left running, Torres decided to steal it and drove herself 75 miles to a hospital in Grants, New Mexico. Her wounds were so severe, she was airlifted to a larger hospital back in Albuquerque.

Police arrested Torres the following day for stealing the car as well as for aggravated fleeing from law enforcement and assaulting a police officer; she ultimately pled no contest to all charges.

The people Torres mistook for carjackers were actually officers from the New Mexico State Police. The very same morning Torres dropped off her friend, the NMSP officers arrived at the same complex in unmarked vehicles in order to arrest a woman who was involved with an organized crime ring. Other than being in the wrong place at the wrong time, Torres had no connection with the woman the NMSP was there to arrest.

The officers contend that they were clearly identified when they approached Torres, and only fired after Torres revved her car engine and sped out of the parking space, placing the officers in fear for their lives.

But according to Torres, the officers never said who they were, nor could she read the markings on their clothes. She also claimed that neither officer was in front of her car, which had barely inched forward when the officers started firing.

Two years later, Torres filed a civil rights lawsuit against the officers in federal court, alleging that they used excessive force in violation of her constitutional rights. More specifically the Fourth Amendment, which famously protects the right of the people to be secure in their persons...against unreasonable searches and seizures.

Her lawsuit, however, was first dismissed in the district court, and then by the Tenth Circuit U.S. Court of Appeals. With only eight justices currently on the Supreme Court, a tie vote would affirm the Tenth Circuits decision.

Heres where the Fourth Amendment loophole comes into play. In the eyes of the Tenth Circuit, Torres failed to show she was seized by the officers use of force, since despite being shot, Torres did not stop or otherwise submit to the officers authority.

An officers intentional shooting of a suspect does not effect a seizure, the court declared, unless the bullets terminate [the suspects] movement or otherwise cause the government to have physical control over [her].

In other words, because she was able to get away, Torres actually hadnt been seized. And under the Fourth Amendment, without a seizure, Torres excessive-force claims...fail as a matter of law, the court concluded.

WASHINGTON, DC - OCTOBER 12: The US Supreme Court. (Photo by Samuel Corum/Getty Images)

Urging the Supreme Court to uphold the Tenth Circuit's decision, attorneys for the officers adopted a similar line of argument. There was no sign that [Torres] freedom of movement was restrained as she fled, without pause, from the scene, their brief asserted, and because Torres didnt stop after she was shot, gunshots did not stop or seize her.

Yet nearly 30 years ago, the Supreme Court declared that under the Fourth Amendment, a seizure includes any laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. Notably, at the time of the Founding, a seizure of a person was often synonymous with a common-law arrest.

There is no doubt that by the reference to the seizure of persons, attorneys for Torres argued, the Fourth Amendment was intended to apply to arrests. Thats a striking contrast to the Tenth Circuit, where Fourth Amendment scrutiny hinges not on officer intent, but on the reaction to an officers use of force.

According to a joint amicus brief by the ACLU, the Institute for Justice, the Center for Constitutional Rights, the Leadership Conference, and the National Police Accountability Project, this standard from the Tenth Circuit creates a disturbing gap in accountability with wholly arbitrary results.

For instance, so long as the person he shoots does not halt, an officer could execute lethal force and not be bound by the Fourth Amendment, even if the officer has no reason to believe his target poses a danger, has no probable cause to arrest the person, and indeed has no reason whatsoever for singling out this particular individual, the joint brief explained.

In a similar vein, wielding other forms of physical force that dont necessarily stop people from moving, like billy clubs, batons, or Tasers, would also be immune and left unregulated by the Fourth Amendment. Simply put, the Tenth Circuit test does not make sense and, as the joint brief phrased it, would be akin to letting police repeatedly smash a battering ram into a houses front gate without a warrant or any inquiry into the reasonableness of the ramming, so long as the gate does not fall down.

Our Constitution permits police officers to use reasonable measures, including physical force, to stop a person who is fleeing a justified arrest, noted the joint brief. That we grant them this power, however, does not mean they should be free to use it without limits or without constitutional scrutiny.

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Supreme Court Could Create New Fourth Amendment Loophole ...