{"id":4543,"date":"2011-01-11T12:31:01","date_gmt":"2010-08-15T00:08:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-14T19:33:31","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4543","title":{"rendered":"CA10: Use of deadly force that does not stop or seize a person is not a Fourth Amendment issue"},"content":{"rendered":"

Officers shot at a burglar who shot at them, hitting him, but he fled the scene. He was apprehended three days later. The use of deadly force against him was not a seizure since he was not seized. Brooks v. Gaenzle<\/a>, 614 F.3d 1213 (10th Cir. 2010):<\/p>\n

Following Hodari<\/a> and Lewis<\/a>, the Supreme Court again considered what constitutes a seizure by summarizing, \u201c[a] person is seized by the police and thus entitled to challenge the government\u2019s 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.\u201d Brendlin v. California<\/a>, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (internal quotation marks and citations omitted and emphasis added). As to Hodari<\/a> and Lewis<\/a>, it further clarified, \u201c[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.\u201d Id. As to what constitutes actual \u201csubmission,\u201d the Supreme Court explained it depends on \u2018the totality of the circumstances — the whole picture,\u201d United States v. Cortez<\/a>, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), and, as the Brendlin<\/a> Court offered, \u201cwhat 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.\u201d 551 U.S. at 262.<\/p>\n

Not only have we applied these same principles in considering seizure situations, but none of our holdings suggest the mere use of physical force or show of authority alone, without termination of movement or submission, constitutes a seizure. For instance, in Reeves, we determined two individuals were not \u201cseized\u201d for the purpose of a Fourth Amendment violation when law enforcement officers pointed their guns at them and ordered them not to move, but they failed to submit to their assertions of authority. See 484 F.3d at 1248-50, 1253-54 & n.17. In Latta v. Keryte<\/a>, 118 F.3d 693 (10th Cir. 1997), we held an officer did not seize a suspect during an interstate pursuit, even though he shot out two of the suspect\u2019s tires, given it \u201cdid not cause [him] to submit to \u2026 authority or succeed in stopping him.\u201d Id. at 700. Likewise, in Bella, we determined a seizure did not occur when a law enforcement officer shot at and struck a helicopter operated by an innocent hostage. 24 F.3d at 1254-56. We concluded that while the shots constituted an intentional assertion of authority, they did not cause the hostage to submit or otherwise succeed in stopping him, and therefore, it did not constitute a seizure within the meaning of the Fourth Amendment. Id. at 1255-56. Similarly, in this case, the intentional use of deadly force in shooting Mr. Brooks neither prevented his freedom of movement nor otherwise succeeded in stopping him. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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