ORDER AND JUDGMENT *
This 42 U.S.C. § 1983 excessive-force case is here on remand from the United States Supreme Court. In its ruling, the Court addressed the pivotal issue presented in this case: Is there a Fourth Amendment seizure when the force used by police to seize a person fails to terminate that persons flight?
Here, Officers Janice Madrid and Richard Williamson discharged their firearms into Roxanne Torress vehicle as she hastily drove away from an apartment complex where police were executing an arrest warrant. Although two bullets struck her, she managed to drive away and was not arrested until the next day. She later sued the officers, claiming they had used excessive force and conspired with one another in doing so.
The district court determined the officers were entitled to summary judgment on the basis of qualified immunity, ruling: “Because the officers did not stop Ms. Torres by shooting at her, there was no seizure, and she cannot prevail on her claims of excessive force. Because there was no seizure, there was no violation of [her] Fourth Amendment rights.” Aplt. App. at 269. This court affirmed, finding the matter governed by Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010). See Torres v. Madrid, 769 F. Appx 654, 657 (10th Cir. 2019). In Brooks, this court held that no Fourth Amendment “seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspects movement.” 614 F.3d at 1223 (emphasis added). Relying on Brooks, this court concluded that because Torres had evaded custody after the officers’ application of force, there was no seizure and her “excessive-force claims (and the derivative conspiracy claims) fail[ed] as a matter of law.” Torres, 769 F. Appx at 657.
The Supreme Court granted certiorari and held that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” Torres v. Madrid, ––– U.S. ––––, 141 S. Ct. 989, 993, 209 L.Ed.2d 190 (2021). Thus, the Supreme Court overruled Brooks. See id. at 994. It then concluded “that the officers seized Torres by shooting her with intent to restrain her movement.” Id. at 1003. As a result, the Court vacated our decision in Torress case and remanded the matter to this court, “leav[ing] open ․ any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.” Id.
Because these questions are best answered in the first instance by the district court, we remand for further proceedings.