Does the Rule From Torres v. Madrid Apply to Unintended Victims?

In its opinion last week in Torres v. Madrid, the Supreme Court held “that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.” This leaves open a few questions, including the question of whether there is a seizure when a police officer applies physical force to the body of a person with the intent to restrain someone else.

There is currently a petition for writ of certiorari before the Supreme Court that involves this exact issue.

That cert petition is in City of Hayward v. Stoddard-Nunez, and here is how the City, which lost in the Ninth Circuit, wrote its Question Presented:

Fearing for his own safety and that of his ridealong, an officer fired several shots at a fleeing-felon driver as he drove toward and swiped the officer’s cruiser. Unfortunately, one of the officer’s shots unintentionally hit and killed a passenger in the fleeing car. The driver was convicted for the homicide, yet the victim-passenger’s brother brought this § 1983 action against the officer. The district court granted summary judgment, finding the officer was entitled to qualified immunity and that his use of force was reasonable under the circumstances. The Ninth Circuit reversed, once again ignoring this Court’s precedent and instructions, and instead defining “clearly established law” at an impermissibly high level of generality. The Ninth Circuit also further entrenched a split among the courts of appeals by failing to address whether the victim-passenger was “seized” as a matter of law to support a claim under the Fourth Amendment.

The questions presented are:

1. Whether an accelerating fleeing driver’s sudden turn deprives a threatened shooting officer of qualified immunity?

2. Whether an unintended victim-passenger of a fleeing vehicle is “seized” for purposes of the Fourth Amendment?

From this, you can see the issue left open by Torres. The police officer shot at the fleeing-felon with the intent to restrain him but ended up striking the passenger. So, is there a transferred intent theory of seizure, pursuant to which an intent to restrain Person A (the fleeing-felon) can transfer to Person B (the passenger)? It will be interesting to see how (or if) the Supreme Court rules.

-CM