CA10: Officer’s firing gun at car fleeing after traffic stop wasn’t seizure; driver’s “momentary pause is not submission”

“Oriana Lee Farrell and her five children claim that Defendant Elias Montoya, while on duty as a New Mexico state police officer, violated their Fourth Amendment rights when he fired three shots at their minivan as it drove away from officers trying to effect a traffic stop. We hold that the district court should have granted Defendant summary judgment because the shots did not halt the Farrells’ departure and, because they were fleeing, they were not seized at the time Montoya fired his weapon, even if they had a subjective intent to submit to authority.” Farrell v. Montoya, 2017 U.S. App. LEXIS 26620 (10th Cir. Dec. 27, 2017) (the video: Video Released Of Police Officer Shooting Van Filled With Kids):

The Farrells argue that they momentarily halted when Officer Montoya pointed his gun at the minivan, thereby submitting to his show of authority. We have indicated, however, that a momentary pause is not submission. Not long ago, in holding that a defendant had not been seized, we quoted with apparent approval the Second Circuit’s statement that “‘to comply with an order to stop—and thus to become seized—a suspect must do more than halt temporarily; he must submit to police authority, for there is no seizure without actual submission.'” Salazar, 609 F.3d at 1066 (quoting United States v. Baldwin, 496 F.3d 215, 218 (2d Cir. 2007) (suspect was not seized when he stopped his car in response to police sirens and lights but then drove away when officers got out of their car and approached suspect’s car on foot)) (further internal quotation marks omitted). And in any event, the dash-cam video contradicts the factual basis of the argument; there was no pause in the minivan’s departure. We therefore cannot credit the Farrells’ assertion. See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”)

The Farrells also argue that they submitted to DeTavis when they pulled over (twice) before Montoya arrived, creating a seizure that continued at least until Montoya fired his gun. But neither this court, nor any court of which we are aware, has adopted the concept of an ongoing seizure under which once a person is seized, the seizure is deemed to continue even after the individual takes flight. And the concept is contrary to Hodari D. See 499 U.S. at 625 (“To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. … A seizure is a single act, and not a continuous fact.”).