Brower v. Inyo County - Oral Argument

ORAL ARGUMENT OF ROBERT GENE GILMORE ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument first this morning in No. 87-248, Georgia Brower v. The County of Inyo.

Mr. Gilmore, you may proceed whenever you're ready.

Mr. Gilmore: Thank you, Mr. Chief Justice, and may it please the Court:

This Court is once again called upon to determine the circumstances under which an individual who was seized will be deemed seized under the Fourth Amendment.

It is the Petitioners' position in this case that the decedent, William Brower, was seized within the meaning of the Fourth Amendment when he was chased into a concealed police roadblock.

The Ninth Circuit's decision to the contrary we believe is contrary in itself with this Court's prior precedents beginning with Terry v. Ohio on up through U.S. v. Mendenhall, and finally this past summer with Michigan v. Chesternut.

Most significant in the Terry case we feel is the test set forth in a footnote, footnote number 16.

Now, that footnote, although it is only a footnote, has been incorporated into the majority opinions in the Mendenhall, the INS v. Delgado, the Michigan v. Chesternut case.

Therein the Court stated that it was not all conduct or all personal intercourse between a policeman and a citizen which will constitute a seizure.

Only when the officer by means of physical force or a show of authority has in some way restrained the liberty of a citizen may we conclude that there has been a seizure within the Fourth Amendment.

The test is very easy and straightforward to apply in a situation where the fleeing suspect decides to stop, submit to the authority and/or is physically and bodily restrained.

It is not so easy to apply in situations where the suspect does not submit to the authority or where the suspect, perhaps in a case similar to this, is not arrested or detained or restrained in the traditional sense of laying on of hands or handcuffing.

In these latter situations, the Court has given guidance to us and has further refined the test set forth in Terry.

The Court did this in 1980 in the Mendenhall case.

In the Mendenhall case, the Court held that a person was seized within the meaning of the Fourth Amendment when, in consideration of all of the circumstances surrounding the incident, a reasonable person would believe that they are not free to leave.

Although that majority opinion in Mendenhall was only joined in by two Justices, it was later adopted by the full majority in the INS v. Delgado case.

Unidentified Justice: Mr. Gilmore, even if we were to agree with you that the complaint alleged facts sufficient to allege a seizure, that isn't the end of the matter, is it?

Mr. Gilmore: Not by a long shot, Justice O'Connor.

That is only the issue of seizure.

There is still the issue of reasonableness that must be overcome.

Unidentified Justice: Right.

Mr. Gilmore: This past summer--

Unidentified Justice: Mr. Gilmore, you... you said a minute ago that... that the freedom... the individual's freedom has to have been restrained in some way.

It's more than in some way, isn't it?

Suppose... suppose the police receive word that there is someone who has taken a hostage in a particular house and they cordon off a 10-block area.

As soon as they put up those, those police barricades, is that a seizure?

Mr. Gilmore: --Of the suspect or the hostages?

Unidentified Justice: Of, of the suspect.

Mr. Gilmore: Yes, I believe it would be, Justice Scalla, because the Court in the Mendenhall case has said that we look to the conduct of the police officers.

And as the Court stated in Michigan v. Chesternut, this is an objective standard which allows us to measure the conduct from one police encounter to the next.

Would the conduct of the police officers reasonably impart to the hostage taker that he was not free to leave... and certainly throwing up a, a number of officers around the hostage scene would tell him he's not free to leave.

Unidentified Justice: He's certainly free to leave the house.

He can't get out of the barricaded area.

What if... what if there's a fleeing suspect and the... and the police notifies all airports and all bus terminals to keep a lookout for this individual and instructs its officers to stop him if he tries to leave the state?

Is that a seizure?

Mr. Gilmore: It is if we follow Mendenhall to its logical conclusion.

I suggest--

Unidentified Justice: It doesn't seem like a seizure to me.

Mr. Gilmore: --Well, I, I would suggest, Justice Scalla, that in keeping with my response to Justice O'Connor, that it is a seizure.

What we need to do is, is further determine, before liability certainly can attach, as to whether it was reasonable.

Again, following Mendenhall to a reasonable and logical conclusion tells us that if the conduct of the police reasonably... reasonably... communicates to the suspect that he is not free with... free to leave, meaning in a broader sense that he has a, a freedom of liberty.

This is much more than just a freedom against bodily restraint.

Unidentified Justice: Mr. Gilmore, when do you think the seizure took place in this case?

Mr. Gilmore: Justice Stevens, I believe the seizure took place at the very instant that the pursuit began long before we ever got 20 miles down the road--

Unidentified Justice: Do you think it was unreasonable at that point?

Mr. Gilmore: --I cannot say in all honesty if it was reasonable or unreasonable simply because we are the very--

Unidentified Justice: It the police officer thinks he's... the driver is driving away in a stolen car, it's certainly not unreasonable to pursue him, is it?

Mr. Gilmore: --Absolutely not in a general sense.

Unidentified Justice: So, then it was not unreasonable at its inception, if that is the time when the seizure took place.

Mr. Gilmore: If that was the circumstances within which this case--

Unidentified Justice: I asked you when, when it took place.

You said then, and I, I think you'd have a hard time convincing me it was unreasonable at that time.

Mr. Gilmore: --I have nothing to indicate to the Court that it was unreasonable at that moment, again concentrating--

Unidentified Justice: When does it become unreasonable for the police to follow someone in these circumstances?

Five miles down the road or 10 miles or when?

Mr. Gilmore: --Well, Justice O'Connor--

Unidentified Justice: Is there ever an obligation that the police have to stop following someone in these circumstances?

Mr. Gilmore: --I think that there is, and I believe that there is because, as the Court has indicated in the Chesternut case, we must consider all of the circumstances.

And on the issue of reasonableness, Tennessee v. Garner tells us that we must weigh and consider the nature of the intrusion, and--

Unidentified Justice: Well, don't you think that creates a very perverse incentive for people to try to take evasive action from the police in their automobiles?

Mr. Gilmore: --It may well, but I believe that we have to consider again the purpose for which the pursuit is taking place.

And it may well be, as the district court indicated in Tennessee v. Garner, if a suspect chooses to flee, he may well, in some instances, assume the risk, but I believe that we have to look to the conduct for the--

Unidentified Justice: Well, this is more than that because when this person takes to the roads on a two-lane road at high speed trying to evade police action, the person puts a lot of other people at risk, doesn't he?

Mr. Gilmore: --Generally speaking, yes, Justice O'Connor, that person does.

Unidentified Justice: And yet, you think the police have to break off the pursuit?

Mr. Gilmore: Not necessarily.

Again, It depends on the circumstances of each case.

And if, if I may, this particular case was dismissed at the complaint stage.

We have not had an opportunity to flush out the facts of this case.

I can relate to the Court that this took place... and I believe--

Unidentified Justice: It was dismissed purely on the single issue of seizure.

Mr. Gilmore: --That is correct.

Unidentified Justice: And that no, no one, though ever got to the question reasonableness.

Mr. Gilmore: The specific issue of reasonableness was not addressed by the district court.

There was some, I believe, indirect inference, if you will, by the Ninth Circuit.

Unidentified Justice: And did the... did the... did the courts below specifically deal with the chase?

Mr. Gilmore: I believe the Ninth Circuit dealt with it certainly not... perhaps it was not addressed with as much energy or as--

Unidentified Justice: Did you argue that the chase amounted to a seizure?

Mr. Gilmore: --In and of itself, no.

Unidentified Justice: That's what I thought.

Mr. Gilmore: It was--

Unidentified Justice: Why do we have to get into whether the chase amounted to a seizure here if we were to determine that the existence of the roadblock resulted in a seizure?

Mr. Gilmore: --Mr. Chief Justice, I believe that the reason that it's important is to fully develop and utilize the case of Mendell... Mendenhalll and the test that has been given to us.

It... and there is some, some concern that the roadblock was not, in fact, a, a seizure.

The Galas case tells us this out the Sixth Circuit.

But I think by way of emphasizing that if the Mendenhall case shows us that a seizure occurs at the moment of the pursuit, then certainly we have the same situation with respect to the roadblock.

Unidentified Justice: Yes, but if you're wrong on the Mendenhall case, you could nonetheless prevail on the idea of that the, the forcing the guy into the roadblock was a... was a seizure.

That would be sufficient for your purposes, wouldn't it?

Mr. Gilmore: Yes, It would.

Unidentified Justice: And there... as I read the petition for certiorari, the question... there is no question as to reasonableness presented.

It's simply the vel... seizure vel non.

Mr. Gilmore: The issue of the seizure is most predominant.

But I believe, if I may in further response to the last question, why should we consider a seizure from the inception of the pursuit?

And there's a very good, practical reason.

If we ignore the conduct of the police... and we are told to look at all of the circumstances.

This is what Chesternut tells us, to look at all of the circumstances.

If we ignore the police conduct from the inception of the pursuit up until the time that there... the young man collides with the roadblock, we have removed from judicial scrutiny all of the conduct of the police officers in that interim.

Unidentified Justice: Why is that so?

Mr. Gilmore: It can be--

Unidentified Justice: I don't--

--What's wrong with that?

I just don't understand that argument.

Your question presented by the certiorari petition is whether the roadblock amounted to a seizure.

Those are the two questions.

Both questions relate to the roadblock, and I don't know why... and when you do get to the issue of the reasonableness... you can't look at the whole picture.

I just don't understand your argument.

Mr. Gilmore: --Well, it was my understanding of Chesternut, Mr. Justice, that we are to look at all of the circumstances, and the complaints as well as the decision of the Ninth--

Unidentified Justice: Well, you're entitled to look at them all, but if the roadblock is enough all by itself just on the issue of seizure, why make your case harder than you have to?

Mr. Gilmore: --It may appear--

Unidentified Justice: Do you still contend the roadblock amounted to a seizure?

Mr. Gilmore: --Very definitely, yes, sir.

Unidentified Justice: Can we talk about the roadblock?

Let's assume that I... I... that I don't think a chase is a seizure, that I think a chase is at most an attempted seizure, and that all you have here is a... is... is a roadblock.

You would agree, would you not, that there's no seizure unless it's intentional.

If... if a police officer leaves a... a jail for the night and locks the... locks the gate not knowing that a visitor is still... is still in the jail, would you call that a seizure?

Mr. Gilmore: Yes, I--

Unidentified Justice: Isn't it like a false arrest?

Isn't it an intentional kind of action?

Mr. Gilmore: --Well, I believe that it... it is still a seizure.

The... whatever was accomplished by the law enforcement has certainly indicated to that person that he is not free to leave.

I most definitely think there's a seizure.

Now, on the issue of whether this requires--

Unidentified Justice: Well... well, then can we pursue that just one minute?

Suppose a police car slips on ice accidentally and all of a sudden blocks another car and the other car hits the police cruiser.

That's not a seizure, is it?

0....

Mr. Gilmore: --No.

That's a little tougher.

Mr. Justice, I think again--

Unidentified Justice: There's an intentional component to the element of seizure.

Mr. Gilmore: --Perhaps intentional, but I do not believe intentional in the sense that we decided in the Daniels and the other cases of the individuals who were prisoners and there was an excessive use of force alleged against them.

This Court I believe indicated that mere negligence was not enough.

In those cases we were addressing the Fourteenth.

Here we are addressing the Fourth.

We're addressing the issue of not somebody in prison.

We're addressing the freedom of an individual walking the street.

Now, again, if the Court means did... did he intentionally run the car into the individual as opposed to simply accidentally, I think that there perhaps is quite a distinction to be drawn.

Unidentified Justice: But if the... I suppose you could say that the officers put the roadblock up there to stop him.

And if he had skidded to a stop and stopped four feet from the truck, they still... they still stopped him.

Mr. Gilmore: They did, and--

Unidentified Justice: And on purpose.

Mr. Gilmore: --And on purpose.

We have a... we have a mechanism utilized by the police, and we by no means are indicating that there should be a per se unconstitutional ruling with respect to all roadblocks.

But what we have to do, what the Court has indicated that we need to do, is to look at the conduct of the police.

They intentionally set that roadblock as... as... just as intentionally as the police officer pulled the trigger in the Tennessee Garner case.

Unidentified Justice: Well, if all we're talking about here is the question of seizure, you will still have to persuade someone somewhere that it was an unreasonable seizure in order... in order to prevail.

So, you could have a... this Court could hold this particular roadblock was a seizure and you would, nonetheless, lose your case if it were found to be a perfectly reasonable seizure under the Fourth Amendment.

Mr. Gilmore: That is correct.

We ask only the opportunity to prove that it was unreasonable.

We have so far in four years been denied that.

Unidentified Justice: Well, getting back to the beginning, was there pursuit... to starting of the pursuit with seizure?

Mr. Gilmore: I believe under Mendenhall, Justice Marshall, it definitely is.

Unidentified Justice: Would that apply if the police had a broken down Ford and the criminal had a Bugatti?

Mr. Gilmore: Yes.

Unidentified Justice: That still would be a--

Mr. Gilmore: As long as the officer in his broken-down vehicle in some way manifested to that individual... to a reasonable individual that he was not at liberty to leave.

And if I may stress the point here, again we're not talking about under the Fourth Amendment a mere... certainly it comes to something--

Unidentified Justice: --But you insist on putting the pursuit in this case, the starting of the pursuit.

And I don't see where that has anything in the world to do with the case--

Mr. Gilmore: --Well--

Unidentified Justice: --about the roadblock.

Mr. Gilmore: --The test that we must apply--

Unidentified Justice: They're two different animals.

Mr. Gilmore: --No.

I believe that they're not two different animals.

If I... if I may disagree--

Unidentified Justice: Well, the pursuit moves and the roadblock doesn't.

Isn't that a difference?

Mr. Gilmore: --But they're all conduct of the police officers.

Unidentified Justice: Isn't that the difference?

Mr. Gilmore: There is a difference, but they were all put into force or into play by the police officers.

Unidentified Justice: And that made it a seizure.

Mr. Gilmore: That made it a seizure.

Once that's reasonably communicated to the decedent, he couldn't leave.

Unidentified Justice: If the roadblock was on the opposite side of town and the pursuit started on this side, the pursuit would be a procedure.

Mr. Gilmore: Absolutely, and I think I can explain that if I might.

Unidentified Justice: I doubt it.

[Laughter]

Mr. Gilmore: Let me give it a try.

I think what's... what's most important here is we need to look at the interest that's being protected by the Fourth.

Again, this is not a mere right to be free from bodily restraint.

The case, Terry v. Ohio, spoke not of bodily restraint.

It spoke of being restrained... one's liberty being restrained.

And if I may, there is... there are a couple... there are a couple of other quotes from Terry v. Ohio that emphasize that what we're dealing with is something much broader that simple bodily restraint.

The Court speaks in language of intrusion upon the sanctity of the individual, invasion of the person's personal security, freedom from all... and I'm quoting here...

"freedom from all restraints or interference of others, freedom from unreasonable government intrusion."

Certainly if this Court... and in Michigan v. Chesternut, the Court there spoke about a right to ignore, a right to disregard.

They are speaking about something much more noble, something much broader than a right to simply be free from... from physical restraint and being handcuffed, if you will.

Unidentified Justice: It's just a couple of sentences, though.

It's not a treatise.

You... you... you sort of suspect that they... they at least left out one thing.

It has to be intentional or else you're going to have to change your answer about the skidding police car.

Mr. Gilmore: I personally am still troubled with the skidding police car.

Unidentified Justice: Yes, me too.

Mr. Gilmore: The skidding police car... I... I believe that I would have to concede if the officer simply negligently skidded across the road and there was an automobile accident... and this must happen thousands of times... that I would have a lot of difficulty arguing--

Unidentified Justice: Let's assume I think you need intent.

What was the intent with the roadblock here?

When I when the police set up a roadblock, do they necessarily intend to... to restrict?

I often see a roadblock, and I just take a... take a street before the roadblock, use another street.

They clearly intend to block further use of that street, but do they intend by setting up a roadblock to stop dead any individual who is using that road?

Is that clear?

Mr. Gilmore: --Well, two things.

One, they... they do intend to restrain the individual's liberty to just simply go wherever he wishes.

Unidentified Justice: To use that road.

Mr. Gilmore: To use that road or to go where he wishes--

Unidentified Justice: And that's a seizure.

So, any--

Mr. Gilmore: --That's a--

Unidentified Justice: --Any roadblock is a seizure?

Mr. Gilmore: --Any roadblock is a seizure if the police communicate reasonably that that individual is not simply free to totally ignore it.

If that individual in this case was free to turn around, take a side road, go right past the officer that was pursuing him and totally, as the Court has said, ignore or disregard, then we would not have a seizure.

Unidentified Justice: So, a roadblock by itself does not amount to a seizure if... if you've got some alternate route to go.

I mean, you could block... you could block a road for purposes of repairing it.

Mr. Gilmore: Here again I must fall back on the Mendenhall.

Did that roadblock and did the totality of the circumstances, both the seizure as well as the roadblock, radio communications, whatever it was that the police officers did, if it reasonably communicated to the individual--

Unidentified Justice: Is it a seizure of everybody that comes down the road?

Mr. Gilmore: --Under Mendenhall, yes, probably reasonable.

Unidentified Justice: Well, your argument is certainly much stronger, it seems to me, when you combine the pursuit and the roadblock.

When you start talking about either one by itself as... as a seizure, I think you get into trouble.

Mr. Gilmore: If the--

Unidentified Justice: I think that's right.

Otherwise you're saying if you put up an unreasonable roadblock... let's say there's really nothing wrong with the street, and some policeman says, well, I think there's something wrong, and it's unreasonable to think there's anything wrong, so they cut up a roadblock.

If that's an unreasonable roadblock, do you say there's been a... an unconstitutional seizure?

Mr. Gilmore: --No.

I think we're confusing reasonableness with the issue of seizure itself.

If the roadblock was designed, was intended, if I may borrow on the Justice's terminology... if it was designed or intended to restrain an individual's liberty, most definitely, but just to block a potholes, no.

Unidentified Justice: Mr. Gilmore, if the person pursued in this case by the police had drawn a gun on the officer and threatened to shoot him and then took off, do you think that on... on those facts that a summary judgment could be granted for the police?

Mr. Gilmore: If I understand the Justice's question, I'm being asked if under those circumstances it would be reasonable for the officer to--

Unidentified Justice: In effect.

Mr. Gilmore: --to use deadly force.

Yes, most definitely.

And that quite alters the circumstances--

Unidentified Justice: Well, let me ask you then if that is so, whether the decedent in this case is not in the same position.

He is armed with a deadly weapon, in effect, the vehicle, and is engaged in aggressive and a dangerous course of action in... in trying to take evasive action and flee.

Why isn't that like the person drawing the gun?

Mr. Gilmore: --Again, if I understand--

Unidentified Justice: As a matter of law.

Mr. Gilmore: --As a matter of law, if we have somebody who is armed?

Unidentified Justice: This person is in effect armed with this vehicle that he has chosen to use in an... in an aggressive and a dangerous manner just as a... a deadly weapon such as a gun.

Mr. Gilmore: I believe that if... if it is interpreted as a deadly weapon, if the utilization of the vehicle in the manner that it was being utilized in fact presented significant or presented risk of serious injury or death to others, most certainly we should not exclude that--

Unidentified Justice: Well, don't you think it did exactly that at night on a two-lane highway at high speed and in the circumstances we know here, over a 20-mile course?

Mr. Gilmore: --With all due respect, Justice O'Connor, that is... that goes to the issue that we have been begging to get before the Court and that is the reasonableness.

We have not even had an opportunity to f lush out, to look at more than a police report in the situation.

If the highway was straight, if there were no other individuals on the highway that night, if it was late at night as it was, it would be a different situation than pursuing him through downtown Los Angeles and or downtown Washington, because I think again the scenarios that we can think about are as numerous as our imagination will allow.

All we are asking is for this Court to follow the Mendenhall and Chesternut logic finding that there is a seizure.

There is a whole other issue before liability attaches, and that's reasonableness of the conduct.

And it may well prove that what the officers did that night was reasonable, but if we don't get an opportunity to explore and to look into that conduct, if we say that this is not a seizure, whatever those police officers did that night is going to go without judicial scrutiny.

If the young man in Tennessee v. Garner--

Unidentified Justice: Well, I guess the state takes the position that even if it is a seizure, as a matter of law, it was reasonable because this person is just like a person armed with a gun.

Mr. Gilmore: --If the Court made a ruling or if there was a judicial finding that all fleeing suspects in all types of vehicles under all circumstances, be it a dirt road or a super highway, is utilizing a dangerous weapon, if you will, that's the type of finding that would have to be brought about.

But I go back to the young man in Tennessee who was shot.

If by circumstances that bullet moved over a couple of inches and he survived and limped home or wherever reached his... some solitude somewhere... the officer in that case told him he was a police officer.

He told him he was under arrest, and he pulled a gun and he shot him.

Would the conduct be any less egregious against a nonviolent individual just because the individual fortuitously got over the fence and got away and maybe was permanently injured as opposed to being killed?

Unidentified Justice: Well, if that young man had been armed with a gun, however, I believe our opinion in Garner said that it would be reasonable to shoot him.

Mr. Gilmore: I believe that was what the opinion said, yes.

Unidentified Justice: So, that's the question, whether somebody using a vehicle in the manner of this decedent is in the same circumstance.

Mr. Gilmore: That... that is the question particularly.

Does the... does the car... does it have the same deadly force perhaps as a weapon, a knife, a gun?

I'd like to reserve a few moments, if I could.

Unidentified Justice: Very well, Mr. Gilmore.

Mr. McDowell, we'll hear from you next.

ORAL ARGUMENT OF PHILIP W. McDOWELL ON BEHALF OF THE RESPONDENTS

Mr. McDowell: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

The, the overriding issue today is whether... not whether this case will receive judicial scrutiny.

The case will receive scrutiny... can receive scrutiny in the state court.

The question is whether it will receive scrutiny under the Fourth Amendment based upon the issue of seizure and reasonableness.

The, the main issue from our point of view is whether the roadblock can act as a seizure.

The Court probably noticed that I didn't really address that directly in my... in my brief.

I think I'm ready to address that now that we feel that for a roadblock--

Unidentified Justice: Why didn't... why didn't you address it directly in your brief?

Ordinarily you don't save things for oral argument--

Mr. McDowell: --No.

And it wasn't intentional.

Really it was a matter of taking time to formulate the... what I felt was the appropriate argument, and I... I didn't feel it had it formulated at that time.

But I feel that there are basically four elements to a roadblock being a seizure.

The one that Justice Scalia pointed out that it has to be intentional, that it has to be designed to cause a--

Unidentified Justice: --Is there any question in this case of why they put the truck up?

Mr. McDowell: --As a--

Unidentified Justice: I mean, it may... it may not amount to a seizure, but it was certain... whatever it was, it was intentional.

Mr. McDowell: --It was intentional to have him stop, but... but not by a... intentional... intentional to have someone stop, you can put on a red light, turn the switch.

Unidentified Justice: Yes.

Mr. McDowell: That, that indicates an intent--

Unidentified Justice: Well, it isn't just to stop.

Weren't they also going to ask him to get out and take him down to the station?

Mr. McDowell: --Oh, they certainly were.

To--

Unidentified Justice: So, they intended to seize him.

Mr. McDowell: --Intend to seize him.

Unidentified Justice: So, there's no issue about intent to seize.

Mr. McDowell: Not intent to seize, but the issue... intent to seize by the use of a collision with a roadblock.

Unidentified Justice: Not by use of the collision, necessarily--

Mr. McDowell: Yes.

Unidentified Justice: --but by use of the roadblock.

The roadblock was intended to stop him so they could take him down to the station.

Mr. McDowell: That's right.

Unidentified Justice: And why isn't that intentional seizure?

Mr. McDowell: Well, that's an intentional seizure, but it doesn't involve the use of deadly force--

Unidentified Justice: Well, the guy got killed, didn't he?

Mr. McDowell: --Well, we're--

Unidentified Justice: xxx.

Mr. McDowell: --That's not... that's not--

Unidentified Justice: Deadly force isn't involved in this case.

Mr. McDowell: --I'm sorry?

Unidentified Justice: Deadly force isn't an issue in whether there's a seizure or not.

Mr. McDowell: Well, I think for... I have trouble... I just have trouble with that.

Unidentified Justice: That will be... that will be reasonableness, later I suppose.

Mr. McDowell: The use of deadly force goes with... with reasonableness.

If you design a roadblock as... as we believe that there... the Petitioner is trying to allege, to be a use of deadly force to seize somebody, I'm not sure how you would seize somebody in a car without using deadly force.

You have a... if you have a vehicle going down a highway at a high rate of speed, maybe some day they'll come up with a way to seize it without using what would be a potentially dangerous force.

Unidentified Justice: Well, they often turn on the lights and pull up alongside and force them to stop.

Mr. McDowell: Well, I would assume that would be construed as--

Unidentified Justice: They don't always kill them.

Mr. McDowell: --as deadly force.

If you force somebody over--

Unidentified Justice: Well, there are lots of time don't they... don't officers force people over on to the curb and cause them to stop without killing them?

Mr. McDowell: --I don't know if they... I don't know that officers--

Unidentified Justice: They do it in the movies a lot anyway.

[Laughter]

Mr. McDowell: --We see a lot of things in the movies.

But I feel there has to be... it has to be an intentionally designed roadblock, intentional... intentional to... to cause an unavoidable collision, and then you have a seizure roadblock.

A roadblock that's put up there to say stop--

Unidentified Justice: Well, what you're saying is that the intentional component of a seizure must be you have to intend that it be unreasonable.

Mr. McDowell: --Well, no.

Oh, no.

No, it could be very reasonable.

I think it's reasonable to stop a person that is going at a high rate of speed.

Justice O'Connor referred to the analogy of a gun.

I think the... in the Tennessee v. Garner case, but in this case, the gun is not pointed at the officer.

The gun is pointed down the highway, and everyone on the highway is held hostage.

So, it's reasonable to--

Unidentified Justice: Well, maybe it isn't--

--[inaudible].

--perfectly reasonable, but I don't... I just don't understand why it's not a seizure and why it's not intentional.

Mr. McDowell: --If, if the... because the volition... the reason for... if the reason for the collision has to do--

Unidentified Justice: No, no, no.

The reason for putting up the roadblock and trying to stop the man.

Mr. McDowell: --Well, that... that can be reasonable, and a roadblock--

Unidentified Justice: Sure, it could be reasonable, but why isn't it perfectly clear it was intentional?

The purpose of doing it was to cause... to apprehend the fleeing felon.

Mr. McDowell: --Because the, the roadblock didn't... if it's not designed to cause the collision, then the roadblock is not the seizure.

Unidentified Justice: It's designed to cause the man to have a choice between either stopping and being arrested or running into it.

Those are his only two choices.

Mr. McDowell: Right.

And... but he has choices.

He uses volition.

If he... if he decides to run into it--

Unidentified Justice: And... and you think one of those choices is not a seizure?

Mr. McDowell: --I think--

Unidentified Justice: On the one hand, you're going to get killed; on the other hand, you're going to get hauled down to the station--

Mr. McDowell: --The seizure is when he does submit to authority or when he's physically restrained.

Unidentified Justice: --Well... well, on this record can't you find that he didn't have a choice?

Mr. McDowell: Well, I don't think you can.

I don't think it goes that far.

It indicates there was a collision.

Unidentified Justice: Well, on... on this... on this record, it's a permissible inference.

One legitimate inference is that he had no choice.

Mr. McDowell: Well, we don't feel... if he... he had no choice, then it has to be shown that the roadblock was intended for that purpose.

Unidentified Justice: Well, it was.

Mr. McDowell: Intended to give him no choice.

Unidentified Justice: As opposed to what other purpose?

Mr. McDowell: To have him stop voluntarily... to have him not go any further that direction.

He may have stopped voluntarily.

He may have decided to make a U-turn and go the other way.

Unidentified Justice: Well, but if you see a big roadblock up ahead, with police lights flashing and so on, and you come to a stop, that really isn't voluntary.

Mr. McDowell: Well, the stop itself, it's... rather than trying to outrun... to run around the roadblock or turn... turn around, to come to a stop without running into the roadblock.

Unidentified Justice: You say that for it to be a seizure, he must actually run into the roadblock?

Mr. McDowell: For the... for the roadblock to be the seizure, yes.

Unidentified Justice: Well, but how about the combination of the pursuit and the roadblock where the... a police car is coming after him from behind and he has a roadblock in front, and his choices narrow very rapidly--

Mr. McDowell: But he still has a choice.

Unidentified Justice: --as he gets to it.

Mr. McDowell: If his only choice is to stop, he still has a choice to stop and not run into the roadblock.

Unidentified Justice: Well, but that's submitting to a force majeure, really.

Mr. McDowell: Of course, but--

Unidentified Justice: You say that's still not a seizure?

Mr. McDowell: --Well, when... when the officer turns or the light, isn't he telling you to stop?

You really don't have any other choice but to stop.

He turns on the red light.

We want you to stop.

The red light is not the seizure.

We're saying the roadblock is the equivalent to the red light.

The seizure is when... when in fact he does stop when the police... if he stops and runs, the roadblock hasn't seized him.

He just changes his mode of escape.

The only time the roadblock really becomes the... the seizure rather than the request to stop is when it's intentionally designed to cause the unavoidable collision.

And... and even in that case, if there's a collision, if the person is able to run away, they're still not seized.

The seizure--

Unidentified Justice: Why can't you--

--Could you find that from this record?

Mr. McDowell: --I'm sorry?

Unidentified Justice: Couldn't you find that from this record?

Couldn't a trier of fact find that if all of the allegations of the Plaintiff are believed, that this roadblock was deliberately constructed in order to cause a collision?

Mr. McDowell: It doesn't say that.

It says that a collision occurred.

Unidentified Justice: No, it says the roadblock was effectively concealed, doesn't it?

Mr. McDowell: Well, it talks about concealed.

That... that doesn't necessarily mean it's--

Unidentified Justice: The words "effectively concealed" are in quotation marks in Judge Pregerson's opinion.

I assume they're in the complaint.

Mr. McDowell: --Oh, they... they definitely are in the complaint.

Unidentified Justice: Yes.

Mr. McDowell: I'm not... I'm not disputing what's--

Unidentified Justice: You can give that away, Mr. Gilmore.

Why try to hold that territory?

I mean, if... if we wouldn't reach that under... under... under the seizure provision of the Constitution, I expect we'd find substantive due process restrictions against intentionally setting up roadblocks to kill people who have... who have done nothing but stolen a car.

You don't think that's going to survive anyway, do you?

I have the wrong counsel.

Mr. McDowell.

Mr. McDowell: --I'm sorry.

I'm sorry.

Could you repeat the question?

Unidentified Justice: Why... why do you try to hold on to the territory that... that even if it was intentionally set up, it couldn't violate the... in order to kill the fleeing felon, it couldn't violate the search and seizure provision of the Constitution?

Mr. McDowell: Oh, I... I'm sorry.

I'm not saying that.

If... if... if in fact--

Unidentified Justice: If it was intentionally set up--

Mr. McDowell: --If it was intentionally set up--

Unidentified Justice: --in order to have him crash into it--

Mr. McDowell: --Then... that's what I'm saying.

Then... then I would agree there would be a seizure.

But I think it has to go that far, otherwise... otherwise you're... you're allowing the suspect to decide what a seizure is--

Unidentified Justice: --And you--

Mr. McDowell: --when he decides to run the roadblock, but catches the edge of the roadblock--

Unidentified Justice: --And your position is if it isn't intentionally set up for that purpose, what?

There's no... there's no seizure--

Mr. McDowell: --The roadblock is not the seizure, that it's... it's... I'm going to get back to saying reasonable.

I don't want to say that.

Unidentified Justice: --There's no seizure because he hasn't stopped.

Mr. McDowell: There's... there's no seizure because he hasn't... he hasn't stopped.

And if... if he... I say if he attempts to run the roadblock, catches a fender of the... of the vehicle, spins out, we're back to the... the Galas v. McKee situation where it's his own volition that... that caused him not to be able to flee any longer.

It's not the roadblock.

Unidentified Justice: How about if someone comes up to you in an airport, to use something from one of yesterday's cases, a DEA officer, and says you're under arrest?

Now, you have an opportunity, an option, to run away and see if he can catch you, but no one would doubt that that's... that's a seizure, do you think?

Mr. McDowell: Well, I... I don't think that's a seizure, Your Honor.

I think the seizure takes... is a... is a two-part test.

You have the communication by the officer, and then you have the... the resulting conduct of the... of the person.

If... if they do in fact submit, if they say you're under arrest, and you say, okay, where... where do I go or if they start to run, but they're grabbed, they're physically restrained or they submit to authority, then there's a seizure.

Unidentified Justice: Well, Mr. McDowell, you have here an allegation in the complaint that not only did the person stop, he was killed in the process by virtue of a roadblock which was set up on a high-speed chase.

Now, I don't see anything frightening about saying that amounts to a seizure.

Mr. McDowell: Well--

Unidentified Justice: I suppose you can defend this case on the ground that what was done was reasonable.

Mr. McDowell: --Sure, yes.

Unidentified Justice: Is that the position you take?

Mr. McDowell: I think that's... we certainly--

Unidentified Justice: I mean, I don't understand putting 20 minutes of argument into saying this isn't a seizure on the facts alleged in the complaint.

Mr. McDowell: --Well, we feel that it... that it should indicate that it was intentionally designed to cause the collision and that... you know, obviously, we'd like to have some standards for roadblocks in the future.

Obviously, the next part we feel that it was reasonable under the circumstances.

Unidentified Justice: Well, you're going to stick with that no matter what?

Mr. McDowell: Well--

Unidentified Justice: You're going to argue the reasonableness of it or not?

Mr. McDowell: --Yes, okay.

Unidentified Justice: Mr. McDowell, I... I thought your position was that it isn't enough that it be unreasonable, that even if it is unreasonable, that's not enough.

It has to be intentional.

Mr. McDowell: Well--

Unidentified Justice: There's a difference between setting up a roadblock unreasonably, negligently putting a car, a police car, in front of it with... with high beams on so the person doesn't seeing it and intentionally doing that in order that the fleeing felon will crash into the roadblock.

That is intentionally seizing him by means of the roadblock,--

Mr. McDowell: --I agree.

Unidentified Justice: --I thought that was your position.

Mr. McDowell: That's my position, yes.

Unidentified Justice: But it could still be unreasonable and not in your view be, a... an unlawful seizure.

Mr. McDowell: Not a Fourth Amendment seizure.

Unidentified Justice: That's what I--

Mr. McDowell: Yes.

Unidentified Justice: --You've got me puzzled, now.

You're saying it can both be a seizure and be unreasonable and not violate the Fourth Amendment?

Mr. McDowell: No.

Unidentified Justice: Okay.

Mr. McDowell: No.

Obviously, if... if you meet both tests, then... then... then it would violate the Fourth Amendment.

Unidentified Justice: And I take it the test you're proposing is that if the fugitive has the ability to thwart the seizure, then there's no seizure.

Mr. McDowell: Yes.

I think... I think that summarizes it.

And that's what not alleged, the... the unavoidability, the intentional causing of the collision.

We know there was a collision.

That's not disputed.

Unidentified Justice: Has the ability to thwart--

--Well, isn't it a fair reading of the complaint that he couldn't?

Mr. McDowell: I don't think... I don't think the complaint is sufficient on that.

I realize it may come close, but I don't feel it's sufficient to meet the standard that... that that was the... that he had no choice but to... but to collide with... with the roadblock.

The second part is the reasonableness.

To say... when you basically have the motoring public held hostage by the... or certainly in jeopardy by the person driving at the high speed, that it's appropriate to put up a roadblock, even a roadblock that's designed to... to catch somebody with physical force.

Unidentified Justice: Somewhere in your argument are you going to mention Tennessee against Garner?

Mr. McDowell: Well, I think we've been... we've been referring to it inferentially, at least.

Unidentified Justice: Well--

Mr. McDowell: I think that's the... the standard.

Unidentified Justice: --Be specific about it.

Mr. McDowell: Well, I think in this case... or in the Garner case, the... the Court referred to, in footnote 7 I believe it was, the... a model penal code, that if you have a felon, if you have... in this case a fleeing felon, if you have a... a substantial risk that a person to be arrested will cause death or serious bodily harm... and I think that can easily be inferred from the fact of the high speed chase on the... on the highway.

Unidentified Justice: Well, do you think... well, go ahead and finish answering for Justice--

Mr. McDowell: If the apprehension is delayed, then it's appropriate to use... it's reasonable to use deadly force.

Unidentified Justice: --But do you think they could have shot this fellow?

Mr. McDowell: Yes.

I think a roadblock is a more reasonable way to... to do--

Unidentified Justice: But you think that the officer in pursuit could have just shot him in the head, and that would have been reasonable.

Mr. McDowell: --[inaudible].

Unidentified Justice: What?

That's your position, as I understand it.

Mr. McDowell: That... that... that deadly force could be used--

Unidentified Justice: Well, that means the... that the officer could have shot him in the head and that would be a reasonable way to deal with the situation.

Mr. McDowell: --[inaudible].

Unidentified Justice: You just drive up alongside of him and shoot him.

Yes.

That... because he's using a... the car is equivalent to a gun.

Mr. McDowell: Well, that's maybe why it's more appropriate to use a... to use a roadblock, but deadly force could be... could be used.

Unidentified Justice: Yes, but if you're making that argument, I think Justice White's example would... you'd... you'd find that to be reasonable because you're saying driving at high speed on a highway in a car at night is very dangerous and therefore you can use deadly force to--

Mr. McDowell: That seems to be the reasoning in Tennessee v. Garner that... that deadly force... in that case a gun was used.

If it... if he... Mr. Garner had been fleeing from a dangerous felony or if he had produced a gun, a gun would have been appropriate.

In this case it ended up being vehicle versus vehicle, and felt that it was appropriate... an appropriate response.

Unidentified Justice: --And, analytically, what we have in this case is just the same then as if the officer had driven up alongside and shot the man in the head.

Mr. McDowell: Well, there certainly is a difference in the method and what's... what is judged is the method of... of seizure.

That didn't happen.

The Court... the Court could find that that would be unreasonable--

Unidentified Justice: Well, one can infer from the allegation in the complaint that what happened was pretty close to that because according to the complaint, they did hide the trailer.

It was effectively concealed in a way that at the speed the man was traveling driving into the headlights, he wouldn't... there's no chance in the world that he wouldn't smash into it and at that speed, get killed.

Mr. McDowell: --According to the... to the complaint.

Unidentified Justice: Complaint.

We... I don't know if it's true or not, but that's what they've alleged, and we've got to assume it's true.

Mr. McDowell: There has been the issue of the pursuit.

We also feel that a... that a pursuit is not a... is not a seizure.

I believe that issue came up basically because of the recent case of Michigan v. Chesternut.

And again, I think even Michigan v. Chesternut indicates that two-part test.

There has to be the communication of... of an intent to seize, and then there has to be a seizure.

And in the Chesternut case, there was a seizure initially, the seizure of the drugs.

So, you had both things.

The drugs were apparently dropped by Mr. Chesternut in response to the communication to Mr. Chesternut that... that had... in that case, the communication wasn't sufficient to be a seizure.

But had it been, had there been sufficient conduct by the police that it had been construed, then there was a seizure that resulted.

So, you need... you need the... the action and reaction before you... before you're able to determine that there... that there is a seizure.

If the reaction is to... to not be seized and to flee, it's... it certainly is counter-intuitive to... to believe that a seizure occurred.

If there's no further questions, I think I've covered our side.

Thank you.

Unidentified Justice: Thank you, Mr. McDowell.

Mr. Gilmore, you have six minutes remaining.

REBUTTAL ARGUMENT OF ROBERT GENE GILMORE

Mr. Gilmore: Thank you, Mr. Chief Justice.

I'd like to address, if I can, the last point that was raised on the Chesternut case and... and the issue of whether there has to be a certain communication by the law enforcement officers to the intended... or the suspect.

I believe... and I may be wrong, but I believe that the Court specifically indicated in that case that communicating or communication of an intent is... is important only to the extent that it may have actually been communicated, that the Court indicated that it was not a requirement that you somehow communicate the intent.

I don't... I'm not sure how a case would ever be proved if we have to look to the subjective intent of every police officer making an arrest.

I think also on the issue of the case of Chesternut, it's important to understand that the Court was asked in that case to make a determination that a pursuit alone was a... a seizure.

The Court found that there was no seizure, but what's important is why the Court found no seizure.

The Court found that there was no seizure not because there was a lack of bodily restraint or a submission to authority, but the Court, again following the Mendenhall test, looked to the conduct of the police officers and very simply said that these officers... what they did could not reasonably communicate to anyone that the individual was not free to walk away or disregard the show of authority.

Unidentified Justice: But, counsel, Mendenhall says we adhere to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Now, it seems to me quite plausible to read that as saying that if the person does not choose to submit to the restraint, that the attempted seizure has not taken place.

Mr. Gilmore: One interpretation of freedom of movement, restraint of freedom of movement, could be taken that we require bodily restraint.

That's only one.

I think in light of the language that was quoted earlier from the Terry... and that's where that came... the Terry v. Ohio case, that we're speaking of something much, much broader than a simple freedom from bodily restraint.

Freedom of movement should be read as a right of movement, not a simple bodily restraint.

Also on the issue that was raised of the roadblock and whether it should be... there should be a finding or an allegation in the complaint of whether it was intentional or not, here again I think that there must be an distinction drawn between the intention in the sense that the officers did what they intended to do, as in this case pursuing and setting up a roadblock, versus an intention to kill this young man.

I don't know that I could allege or ever prove that these police officers tried to kill this boy.

I don't think that would be possible, but I do not believe in... in utilizing or looking to the requirement of intent that this Court would require such a showing under the Fourth Amendment.

Certainly, again, under the Daniels case, et cetera, we know that negligence is not enough with respect to a Fourteenth Amendment.

But I'm not sure that this Court, when we're looking to the arbitrary conduct of a police officer... and that's what we're trying to restrict... that this Court would require intentional in the sense that they intended to kill the young man, only that they intended their conduct, setting up the roadblock.

There is the question that was raised as to whether deadly force was... was an issue on seizure, and I think the general consensus was, no, that's something that should be left for the issue of reasonableness.

And not to work against myself, but I don't feel that that's necessarily correct.

The Court in the Michigan v. Tennessee case indicated that what we are doing is measuring and gauging the coercive conduct of the police officer.

And we're not doing that to determine whether the conduct itself was somehow inherently offensive or heinous.

What we're doing is looking to the conduct to see if it rises out of the normal social conduct which Terry tells us is okay, is not a seizure.

Is it sufficiently coercive in the sense that it is now elevated out of that circumstance and into a seizure?

I think it's important in that sense that the Ninth Circuit did find on the same factual situation again that the conduct here was intentional, unjustified, brutal and offensive to human dignity.

Certainly if that was the case... if that's what these facts tell us, then I think that this certainly is coercive to the extent that it raises and arises beyond mere social conduct by the police officers.

Unidentified Justice: Mr. Gilmore, why shouldn't we adopt a constitutional rule that encourages people to abide by police directives?

If those directives turn out to be unreasonable, then they have a constitutional cause of action against the police officers.

But why should we adopt a rule that says go ahead, run, flee down the highway?

And even if you do that and endanger public lives, you will still have a constitutional cause of action against the police officers if it turns out that their chase is unreasonable.

In other words, why shouldn't we adopt the rule that you have to stop?

And if... if they've been wrong in stopping you, then you have a cause of action, but if you don't listen to them and endanger the public, you don't have a constitutional cause of action?

Why doesn't that make sense?

Mr. Gilmore: Well, I think that would be too harsh a law.

I think the law in that case, if that was the rule, that if you flee you are opening yourself to deadly force under any circumstances... if I... am I misunderstanding the--

Unidentified Justice: I'm not saying they can kill you.

I mean, that's a different... I think we're all agreed that if they intentionally sought to... to kill this person, it would be no different.

Mr. Gilmore: --Thank you.

Chief Justice Rehnquist: Thank you, Mr. Gilmore.

The case is submitted.