Court: Its not a seizure if the suspect flees

If police shoot at a fleeing suspect– and miss– does the conduct implicate the Fourth Amendment? Here’s how the Tenth Circuit recently framed the issue in Farrell v. Montoya:

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.

On December 27, 2017, the Tenth Circuit answered the question and held the failure to stop the suspect with gunshots prevented a seizure, and without a seizure, there can be no Fourth Amendment violation.

You can access the opinion here.

While the outcome may seem odd– that shooting at a fleeing suspect would not violate the Fourth Amendment– the case presents a straightforward application of long standing precedent first announced in California v. Hodari D., 499 U.S. 621 (1991).

While the Farrells may have no recourse under federal law, that does not necessarily preclude relief under state law. In Oklahoma, the Farrells could still bring suit under the Oklahoma Governmental Tort Claims Act for unlawful assault.

If you have questions about excessive force or police misconduct, contact the injury attorneys at Bryan & Terrill, 918-935-2777.