Monthly archive

May 2021 - Page 2

My Personal Thoughts: My Map Beats Senator Huffman’s Map

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Texas appellate court justices, state and local lawyer organizations, minority interest groups, rural lawyers, and elected officials from across the political spectrum breathed a sigh of relief when Senator Joan Huffman (R-Houston) quietly pulled from consideration on Friday afternoon, April 9, 2021, her legislative proposal to blow up the intermediate appellate court system and cut the number of districts from 14 to seven.

But if my sources are correct, Sen. Huffman, Lt. Gov. Dan Patrick, “Texans for Lawsuit Reform,” and others are angling for a special legislative session later this year, which may (among other things) reintroduce some version of an appellate court redistricting map that has drawn sharp rebuke from Republicans and Democrats alike. 

During a livestream hearing before the Senate Committee on Criminal Jurisprudence on April 1st, dozens of respected, high-profile witnesses testified that Huffman’s SB 11 was expensive, unnecessary, created instability in the intermediate appellate system at a time when a tsunami of backlogged cases requires stability, and threatened to substantially reduce the number of minorities who will serve as justices. Past TCDLA President David Botsford vigorously argued that if certain appellate districts have too many cases, it would be easier and far less expensive to give the overburdened courts more resources. (A recent cost-analysis from the non-partisan Office of Court Administration revealed that Huffman’s proposal would cost taxpayers nearly $40 million in the first two years for courthouse construction, etc., and would save less than $3 million per year after that.)

Meanwhile, lurking in the background of the SB 11 debate like that shadowy, hat-wearing Benny Watts character in The Queens Gambit, were the political implications of a redrawn appellate map. Senator Nathan Johnson (D-Dallas) observed that Huffman’s redistricting plan — which the bill’s supporters insist is actually a “restructuring” plan — would likely result in five Republican districts and two Democratic. 

For her part, Huffman claimed she was completely unaware of and had not even considered the partisan breakdown of the proposed map. Rather, it was merely about efficiency and mandating a more even distribution of appellate cases.

At least for now, I think we should take Senator Huffman at her word. Let’s assume this isn’t about politics or as several witnesses derided, “a solution in search of a problem.” Let’s assume this is about efficiency and evening out judicial workload. Preferably without spending too much money. 

Unfortunately, a careful review of Huffman’s map shows that it fails to accomplish its purported goals. It also absurdly combines Dallas and Austin into a single district, silences El Paso culturally and politically by combining it with Midland/Odessa and roughly one third of the rural Republican counties in west Texas, and bizarrely sets aside the same number of districts — one! — for Greater Houston as it does the far-less populated Texas Panhandle. 

When I saw Huffman’s map and watched the committee debate on livestream, I (perhaps in a state of delusion) thought, “I bet I could draw a better map.” So, I powered up seasons one and two of Fauda on Netflix (10/10, by the way) and constructed my own version during breaks. In the interest of transparency, I must say I believe appellate redistricting is ill-conceived, poorly timed, wasteful, and looks suspiciously like a power-grab at a time when Texas’ political landscape may be slowly shifting. 

Nevertheless, if we were to draw a fair appellate map with an even case distribution — and for some crazy ridiculous reason we had to have exactly seven districts — then I submit my own version is clearly better than the one Senator Huffman offered. 

Methodology and Analysis

In order to ensure a balanced distribution of cases across the seven new appellate districts, the Scheiner Plan would divide the total number of filed appeals by seven. According to the Annual Statistical Report for the Texas Judiciary for Fiscal Year 2019, available at www.txcourts.gov/statistics/annual-statistical-reports/, there were 9,401 civil and criminal appeals in the last non-pandemic year. So, unless you want to artificially adjust the numbers to keep current justices perpetually employed, this means each of the seven new proposed districts should handle an average of 1,343 cases. Each district should employ 11 justices. (There are currently 80 intermediate appellate justices in Texas; my plan calls for 77.)

“Houston” (purple) – With a 2019 appellate caseload of 1,492, Harris County would be the most active district. Unfortunately, there is no way to shrink the case load without transferring cases to another district or cutting up Harris County. Note: This is precisely why Harris County and its surrounding area have two appellate districts in the current system.

“Gulf Coast/Border” (pink) – This district would give voice to Latinx voters and, as with Districts 1, 3 and 6, likely ensure justice positions for people of color. The Main Court could be in the existing structure in Corpus Christi (with some office expansion) and a Satellite Court could be in the existing structure for the El Paso Court of Appeals. Unlike the Huffman Map, the Scheiner Map’s Gulf Coast/Border District would connect El Paso with communities that are more culturally and politically similar than the conservative rural areas of west Texas. 

“South Central” (Blue) – If we must put Austin together with another large city in order to balance the case numbers, it makes far more sense to pair it with nearby San Antonio than Huffman’s suggestion of Dallas. You could have a Main Court in San Antonio and a Satellite Court in Austin, using existing structures. 

“Northwest” (green) – This district would be insanely large. But it illustrates just how heavy the caseload is in urban jurisdictions versus rural. Tiny Harris County, all by itself, has a larger caseload than the entire green area in the Scheiner Map. In fact many of the counties in the Northwest district had zero or only a handful of appellate cases in 2019. I would suggest a Main Court at the existing structure in Amarillo (with expanded offices) and a Satellite Court in Midland. These courts should make frequent use of Zoom for oral arguments, in order to cut down on lawyer travel expenses. 

“Ft. Worth/Waco” (orange) – Ft. Worth would be the biggest fish in this pond. It could house the Main Court in an existing structure. Perhaps Waco could use an existing structure for a Satellite Court. 

“Dallas/Tyler” (purple) – I would have loved to put Dallas together with Ft. Worth, but the total caseload would be too high. (Sorry, Tyler, you’re going with Dallas and perhaps you can have a Satellite Court.)

“East Texas” (yellow) – Main Office would be at the existing structure in Beaumont. To save money, this district could share a Satellite Office with District 6 in Tyler. 

Obviously, anyone can draw a map. In fact, it doesn’t take much effort to draw an appellate court redistricting map that is fair, efficient, politically balanced, and provides for an even distribution of cases. While it’s still highly questionable whether appellate redistricting is necessary or advisable, we know that Senator Huffman, Lt. Governor Patrick, and others can do much better in attempting to meet their stated goals. 

If they come back with a map that’s even remotely similar to the one Senator Huffman pulled from consideration, we’ll know their intention is something other than what they’ve told us.

Executive Officer’s Perspective: Connecting

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“As the world becomes a more digital place, we cannot forget about the human connection.”

-Adam Neumann

It has been more than a year that we have been separated. The staff has worked remotely in shifts, venturing into the office as needed. But now we are all back in the office, working hard to ensure we have everything in place for our upcoming seminars, as well as providing the best possible service for our members and support for our legislative team.

Work at the legislature started slowly, as lobbyists didn’t even know if they would be able to meet in person with representatives. The legislative team, under the leadership of Bill Harris, has nevertheless visited the Capitol repeatedly, with many of our members testifying into the early hours of the morning.

Otherwise, life begins to return to normal. We recently held our first in-person program of 2021 in McKinney, and we will travel to Galveston next week for the Resistance theme seminar. On May 7 in Dallas, things really begin to pick up with the popular 14th-annual DWI Defense. And you know we’re busy gearing up for Rusty Duncan. Please note that we’re providing virtual options for both the DWI Defense and Rusty Duncan.

In-person Rusty will reflect the times we live in now. We will be following current CDC guidelines (though they may change at any time). We will require attendees to wear a mask, seated one person per six-foot table. Several additional rooms will allow you to view the event remotely, separated from the main ballroom.

We have also limited social and other events typically held at Rusty due to existing health concerns. But we will host an Awards Banquet Dinner to honor all our 2020 and 2021 award recipients. Congratulations to these honorees:

TCDLA Hall of Fame

Bill Wischkaemper (2020)
Jim Darnell (2020)
Mark Stevens (2021)
Mark G. Daniel (2021)

TCDLA Percy Foreman Lawyers of the Year

Michael Ware (2020)
Robert Callahan (2020)
Clay Steadman (2021)
Allen D. Place Jr. (2021)

TCDLA Charlie Butts Pro Bono Award

Allison Clayton (2021)

TCDLA Rodney Ellis Award

Jay Freeman (2020)
Jessica Priest (2021)

Friday evening, the Annual Membership Party sports a TCDLA 5-0 theme: Wear your fanciest beach duds. Be advised that a party precludes maintaining six feet of separation or any basic monitoring of CDC protocol that evening. That said, only about half our regular number can be accommodated under those guidelines. If you can’t attend in person, choose the virtual option. Either way, you will have the opportunity to go back and view a recording of the entire seminar.

You won’t want to miss the speakers scheduled for Saturday. And after the last presentation, of course, TCDLA will hold our annual members meeting, which you can attend in person or watch live on Facebook. There we’ll swear in our new president, Michael Gross, officers, and new and renewing board members. We hope you will stay connected, one way or another, with TCDLA and all our members!

Editor’s Comment: It’s Been an Honor

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It’s been one of my greatest pleasures to serve TCDLA as editor since Michael Gross entered the officer chain as secretary 5 years ago. The time has come, however, for me to step aside and allow new, fresh ideas and perspectives be involved. I have submitted my resignation as Editor of the Voice effective June 25, 2021. I will remain in an advisory capacity and will continue to serve TCDLA, but will be passing along the torch. This is certainly a bittersweet moment for me.

The Voice is bigger than any individual editor or author, and it always will be. It is a collective effort. Last March, I asked Jeep Darnell and Clay Steadman to join me as assistant editors. They graciously agreed, and I will be forever grateful. You never know what life is going to bring, and as the world was adapting and adjusting to a new normal during COVID-19, my family’s world turned upside down. In July, out of nowhere, my then four-year-old, Sam, suffered devastating medical issues. They have been ongoing but thankfully we are in a much better place now. It was Jeep and Clay who stepped in and picked up the slack with the Voice since my focus was completely on Sam. It was Melissa Schank who reassured me and kept things going. TCDLA has a real treasure in Melissa. And, recently, we added Amanda Hernandez to the fold. She has already exhibited editing prowess. It has been wonderful to have Jeep, Clay, and Amanda as part of this editorial team. We have certainly worked well together. My only regret is that I waited much too long before I recruited their assistance.

I have been blessed to work with giants like Buck Files, to talk to him each month, to read his columns, and to see him through to his 250th article. We all reaped the benefits of Michael Mowla’s SDR’s and are now benefitting equally from Kyle Therrian’s. Robert Pelton has consistently fielded calls and made sure we stay out of hot water ethically. The Chapter and Verse (Allison Mathis) and From the Front Porch (Dean Watts) columns are great additions. I have had the humbling duty of editing feature articles by lawyers much more experienced than me. I learn something new every month. I know we all do. These authors are the people who have tirelessly contributed month after month for the benefit of all of us. They are ones who should be thanked.

Michael Gross, thank you so much for having suggested me to fill this role when you joined the officer chain five years ago. It’s hard to believe it’s been that long now. I would like to think I have made a positive impact on the Voice and will be leaving it better than when I began. That’s always been my goal, at least. I have certainly enjoyed the work and the opportunities this position has provided.

Thank you, George, for brainstorming with me and editing the editor. George is my brother and best trial partner hands down.

Thank you all for reading the Voice and for trusting me to be your editor for so long. Thank you for all your submissions. Thank you for all your feedback – both good and bad. We value it all. Truly. Keep it coming because the goal will always be to continue to make the Voice a better resource for our members, and keep on submitting your articles. Your articles are the lifeblood of the Voice.

You likely know I’m a defense lawyer because of my late dad, George Roland. I’ve mentioned him before in my articles. He was the biggest Willie Nelson fan ever, so it seems appropriate to quote Willie (though somewhat out of context given the rest of the song) –

Turn out the lights, the party’s over
They say that, ‘All good things must end’

Thank you. It has been an honor.

Ethics and the Law: Nuts, the Judge Wants to See You!

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It all starts innocently enough. You are in court (pre-pandemic), doing your usual thing when the court coordinator tells you the Judge wants to see you. For those of you who got in trouble in school (I’ll plead the 5th!), you know it’s never a good sign when an authority figure wants to speak with you. You walk into chambers, and the Judge says, “So what’s going on with the Smith case?” What do you do?

Well, first, here are the rules you as a lawyer must follow: Rule 3.05 of the Texas Rules of Professional Conduct states A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.

And here are the rules a Judge must follow: Canon 3A of the Texas Code of Judicial Ethics states that a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the Judge outside the presence of the parties between the Judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the Judge’s direction and control. This subsection does not prohibit: (a) all communications concerning uncontested administrative or uncontested procedural matters.

In my experience, 99% of the time a Judge inquires in this fashion, it is a harmless attempt to administratively figure out what is going on in the case; is this going to be a plea or a trial. This is allowed, but you are skating on thin ice. You can fall right through unless you are careful. So what should you do? You really have three options:

You could tell the Judge everything you know about the case, including your strategies, the state’s weaknesses, etc.

You could reprimand the Judge for unethical conduct, explaining that he is on the brink of breaking the law, and if he does, you must report him to the panel judge.

You could use some common sense, don’t break any rules, and gracefully get out of the situation.

Option #1 will lead you to possible sanctions with the state bar. Pursuing Option #1 allows you to play Russian roulette with your law license. This is not a good option. Option #2 doesn’t work either because there is a good chance that you will be dealing with this Judge for many, many years. In my experience, judges have long memories, and you will make an indelible negative imprint on the Judge’s memory for as long as he remains on the bench. This leads us to Option #3: common sense.

As mentioned, 99% of the time, when a Judge asks you this question, it’s a harmless attempt to figure out procedurally where this case is going. That arguably falls under an exception to rules against ex parte communications. Treat it as such. But, to be on the safe side, bring the prosecutor into the discussion. Answers such as “Thanks for asking Judge, let me get my file and the Prosecutor,” “I was just speaking with the DA about this, let me go get him/her,” or “There are two sides to this, so you probably want to hear the DA’s side too. Let me go get him/her”. This way, there is no rule violation, you haven’t pissed anyone off, and you may make some headway on your case.

What happens in the 1% of cases where ex parte communications are not so innocent? We will address that in future articles.

Good luck, and have fun!

Chapter & Verse: Public Trial

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Here we are, pushing forth into the month of May and as yet we are not even through the first chapter of this monstrous CCP, this albatross, this millstone, this student-loan of all possible Codes. But this month we will do our best, as we always do, to chug ahead, in this never-ending pandemic, to Art. 1.24, “Public Trial.” “The proceedings and trials in all courts shall be public.” Doomp. End of sentence. Of course, that’s not the end of the real sentence, though. Like most of our unlucky clients, it’s what comes after the sentence that does you in…the parole/annotations.

Lily v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012), tells us about how judges can allow closure of “an accused’s trial or any part thereof.” (1) The party seeking to close the proceeding must advance an “overriding interest” that he is likely to be prejudiced (so we know the court can’t do this sua sponte, at least); (2) the closure must be no broader than it has to be to protect that interest; (3) the Court has to consider reasonable alternatives to closure; and (4) it has to make findings to support the closure. That’s a lot of steps.

Interestingly, the right to a public trial isn’t only held by the defendant under the sixth amendment – it’s also held by the public under the first amendment. Presley v. Georgia, 558 U.S. 209 (2010). In Presley, the Court closed voir dire proceedings to the defendant’s uncle, over defense objection. The court said what a lot of courts, I think, would like to say, which was essentially: “Look, it’s just during voir dire, and we don’t really have a lot of room. I don’t want him mingling with the jury and I don’t want him taking up space, so just tell him to come back for opening statements.” Presley was convicted and appealed based on the exclusion of his uncle from jury selection. The ever-stodgy Supreme Court of Georgia ruled against him. Guess what, though? SCOTUS struck them down, ruling that trial courts are “obligated to take every reasonable measure” to keep trials open to the public, which could include things that sound pretty labor-intensive to me, including, “dividing the jury venire panel to reduce courtroom congestion.” Presley at 212.

 There is hope, dear reader, for Georgia, yet.

Your Darling Allison pretends to remember the days of the King’s (or Queen’s) Star Chamber, back in the Tudor days, in which those muckety-mucks too effete to be tried in lower courts could be comfortably tried in private by the biggest of wigs. Though in theory this seemed like a good idea, like many good ideas it quickly turned into a literal torture chamber where high-ranking enemies of the Crown were quietly, un-due-processily, beaten, branded with irons, and forced to have their… various parts cut off. Yes, they carried out these gruesome punishments on very expensive rugs in privy chambers.

It was probably the Star Chambers and their echoing injustices that terrified our Founding Fathers into including the right to a public trial into our constitution. My dear friend William Blackstone commented that it kept everyone honest to have public trials, and it prevented judges from overstepping as much. Maybe that is true, or maybe sitting and watching trials is just a long-standing form of human entertainment, akin to Roman bread and circuses.

But sometimes as we sit in court checking our phones and waiting for the ever-later chance to approach the bench and deal with our cases, we should remember to pay attention to what’s going on. To sit with arms crossed as a silent and effective observer when judges are doing the wrong thing. To take notes, obviously. To raise an eyebrow and stare down the State as a member of the great and powerful mob, exercising our right to be present.

Federal Corner: Seizures by Force

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After 25 years and 250 Voice articles, TCDLA legend Buck Files decided to retire or maybe just take a break from writing the Federal Corner. We don’t have Buck Files’ credentials or experience, but we are honored to present this article for the Federal Corner. Fortunately for us, and for you, the reader, on March 25, the United States Supreme Court slow-pitched a softball with its most recent decision in Torres v. Madrid, 141 S. Ct. 989 (2021).

This opinion answers the question of whether a seizure of a person for purposes of the Fourth Amendment occurs when an officer uses force against a person (in this case actually shooting Torres) with the intent to restrain the person even if the force does not succeed in subduing the person. Put simply, if an officer shoots a person in an attempt to detain the person and the person flees after being shot, is this a Fourth Amendment seizure? The answer is Yes.

Justice Roberts delivered the opinion joined by Breyer, Sotomayor, Kagan, and Kavanaugh. The opinion reads, in part, as follows.

The Facts of the Case

New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant on a white-collar criminal, who was also suspected of involvement in drug trafficking and violent crime including murder. Roxanne Torres was in the parking lot of the apartment complex with another person near a Toyota FJ Cruiser. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres got into the driver’s seat. The officers attempted to speak with Torres, but she did not notice their presence until one of them tried to open the door to her car. She thought that the officers were carjackers trying to steal her car, and she hit the gas to escape them. Officer Williamson and Officer Madrid fired thirteen shots at Torres striking her twice in the back and temporarily paralyzing her left arm.

Torres drove to a hospital 75 miles away. The hospital was able to airlift her to a hospital in Albuquerque, where the police arrested her the next day.

The Civil Lawsuit

Torres sought damages from Officers Madrid and Williamson under 42 U.S.C. § 1983, which provides for a cause of action for the deprivation of constitutional rights by a person acting under the color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary Judgment for Madrid and Williamson and the Tenth Circuit affirmed the ruling on the ground that a suspect’s continued flight after being shot by the police negates a Fourth Amendment excessive-force claim. Torres v. Madrid, 769 F. App’x 654, 657 (10th Cir. 2019). 

Question Presented

Whether the application of physical force to the body of the person with the intent to restrain is a seizure, even if the force does not succeed in subduing the person.

California v. Hodari D.

California v. Hodari D., 499 U.S. 621, (1991) interpreted the term “seizure” by consulting the common law of arrest. The common law distinguished the application of force from a show of authority, such as an order for a suspect to halt. The latter does not become an arrest unless and until the arrestee complies with the demand. Hodari D. articulated two pertinent principles.  First, common law arrests are Fourth Amendment seizures. Second, the common law considered the application of force to the body of a person with the intent to restrain to be an arrest, no matter whether the arrestee escaped.

English Common Law Arrests – Mere Touch Rule

The traditional rule persisted that all an arrest required was “corporal seising or touching the defendant’s body.” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (Blackstone). Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. See Wilson v. Arkansas, 514 U.S. 927, 933 (1995). Justice Baldwin, instructing a jury in his capacity as Circuit Justice, defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” United States v. Benner, 24 F.Cas. 1084, 1086–1087 (No. 14,568) (CC ED Pa. 1830).

Stated simply, the cases “abundantly shew that the slightest touch [was] an arrest in point of law.” Nicholl v. Darley, 2 Y. & J. 399, 404, 148 Eng. Rep. 974 (Exch. 1828). Indeed, it was not even required that the officer have, at the time of such an arrest, “the power of keeping the party so arrested under restraint.” Sandon v. Jervis, El. Bl. & El. 935, 940, 120 Eng. Rep. 758, 760 (Q. B. 1858). The consequences would be “pernicious,” an English judge worried, if the question of control “were perpetually to be submitted to a jury.” Ibid.; cf. 3 Blackstone 120 (describing how “[t]he least touching of another’s person” could satisfy the common law definition of force to commit battery, “for the law cannot draw the line between different degrees of violence”).

Countess of Rutland – The Use of a Mace

This case, of course, does not involve “laying hands,” Sheriff v. Godfrey, 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B. 1739), but instead a shooting. The closest-fitting decision seems to be Countess of Rutland’s Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605). In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.” Id., at 54a, 77 Eng. Rep., at 336. We think the case is best understood as an example of an arrest made by touching with an object, for the serjeants-at-mace announced the arrest at the time they touched the countess with the mace. See, e.g., Hodges, Cro. Jac., at 485, 79 Eng. Rep., at 414 (similar announcement upon laying of hands). Maybe the arrest could be viewed as a submission to a show of authority because a mace served not only as a weapon but also as an insignia of office. See Kelly, The Great Mace, and Other Corporation Insignia of the Borough of Leicester, 3 Transactions of the Royal Hist. Soc. 295, 296–301 (1874).

However, one reads Countess of Rutland, there is no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest. The required “corporal seising or touching the defendant’s body” can be as readily accomplished by a bullet as by the end of a finger. 3 Blackstone 288.

Objective Intent to Restrain Required

The application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. See County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend.

The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. See Nieves v. Bartlett, 587 U. S. ––––, ––––, (2019). Only an objective test “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988).  While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. See INS v. Delgado, 466 U.S. 210, 220, (1984); Jones v. Jones, 35 N.C., 448, 448–449 (1852).

Nor does the seizure depend on the subjective perceptions of the seized person. Here, for example, Torres claims to have perceived the officers’ actions as an attempted carjacking. But the conduct of the officers—ordering Torres to stop and then shooting to restrain her movement—satisfies the objective test for a seizure, regardless of whether Torres comprehended the governmental character of their actions.

Length of Seizure by Force

The rule is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.  That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U.S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. See, e.g.Utah v. Strieff, 579 U. S. ––––, ––––, 136 (2016). But brief seizures are seizures all the same.

Applying these principles to the facts, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. Therefore, the officers seized Torres for the instant that the bullets struck her.

There is a distinction between seizures by control and seizures by force. But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule.

Seizure by Control

Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Under the common law rules of arrest, actual control is a necessary element for this type of seizure. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 553 (1924). Such a seizure requires that “a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Brower, 489 U.S., at 599, 109 S.Ct. 1378. But that requirement of control or submission never extended to seizures by force.  See, e.g.Sandon, El. Bl. & El., at 940–941, 120 Eng. Rep., at 760.

As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. At the most basic level, it will often be unclear when an officer succeeds in gaining control over a struggling suspect. Courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, or only when he slaps on the cuffs. None of this squares with our recognition that “ ‘[a] seizure is a single act, and not a continuous fact.’ ” Hodari D., 499 U.S., at 625, 111 S.Ct. 1547 (quoting Thompson v. Whitman, 18 Wall. 457, 471, 21 L.Ed. 897 (1874)).

Our Thoughts

The Court distinguishes between two types of seizures of persons – seizure by control and seizure by force. It is therefore a good read, if not for any other reason, for that reason alone.

For criminal defense purposes, illegal seizures by control will generate suppression issues since, by their nature, the person at this point will have been detained, and the fruits of the illegal detention can be suppressed. 

The seizure by force doctrine can be used effectively by the fleeing client in a 1983 action, just as Torres did. There is not a clear rule for 1983 actions for the “fleeing subject.” However, the Court’s language that a “seizure by force—absent submission—lasts only as long as the application of force” is troubling for the criminal defense lawyer since it does not protect the fleeing client for purposes of suppressing flight or actions occurring during the flight. Presumably, items dropped by a person being illegally seized by force would be subject to suppression since this occurs during the “application of force.” I imagine a person dropping a cell phone or drugs while being assaulted by an officer. However, this author has difficulty imagining any other scenario in which the seizure by force doctrine could be used to suppress evidence.

Shout Outs

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Kudos to Alex Bunin and Gonzalo Rios, Jr. for being reappointed to the Governing Board of Texas Indigent Defense Commission. Congratulations, Alex and Gonzalo!

Congratulations to Tip Hargrove for earning the Palmetto Medal, which is one of the highest awards presented by the Citadel College Alma Mater. Mr. Hargrove’s service reflects great credit upon himself, the Citadel, and it’s Alumni Association, Kudos, Tip!

Congratulations Mark G. Daniel (Ft. Worth) on your Texas Senate reappointment to Texas Forensic Science Commission. Thank you for your public service and keeping TCDLA members updated, and fighting for justice.

Kudos to our TCDLA members who testified at the State Capitol led by our TCDLA Legislative Team Bill Harris, Chair and Lobbyists Allen Place, Shea Place, and David Gonzalez! TCDLA members who came to Austin to testify: Nicolas Hughes (Houston), Rick Flores (Austin), David Botsford (Austin), Michael Gross (San Antonio), John Convery (San Antonio), and Frank Sellers (Ft. Worth) #TCDLASTRONG.

Thank you Wilvin Carter (Houston) for assisting a fellow colleague to save his/her Bar License and his/her career and to receive an Order of Dismissal after a year-long fight. Their confidence and trust in you was well met.

Congratulations Carmen Roe (Houston) whose client received probation on a PSI today – an attorney who pled guilty to two felonies for unlawful practice of law after losing his bar card. The offer was 10 years.

Suzanne Spencer (Austin) received a phone call criminal defense attorneys wait a lifetime for in March 2021. Suzanne represented an Unaccompanied Minor Immigrant a few years ago. He immigrated from Honduras by himself during the 2014 migration. Upon turning 17 while in the throes of a psychotic episode, he was charged with 6 offenses ranging from Continuous FV to VOPO to Assault on PO.

Suzanne was court-appointed to represent him. He was found ITST (incompetent to stand trial). However, he was restored to competency at the State Hospital. She was able to bond him out on Mental Health PR bond (unique unwritten policy to Travis County). Over the next 2 years, he complied with conditions and maintained employment in construction. They were successful at getting 5 of the 6 cases dismissed and upon the advice of a good immigration attorney, the 6th case was reduced to a misdemeanor and amended in a carefully crafted plea bargain designed to have no effect on my client’s Immigration Petition. My work was done and we parted ways.

Two years later, on March 12th, out of the blue – the client called to thank her. The day before he had been Granted LPR in the US Immigration Court in San Antonio. (LPR stands for Lawful Permanent Resident). The client was so happy and told Suzanne that he owed it all to me. She reminded him that he did his part which wasn’t easy and the result was a team effort that included 2 amenable prosecutors. The client is doing well contributing to the GDP. He is married and a father now.

Thanks to Seth Fuller (Denton) who represented an adult client with a co-defendant juvenile brother (both victims of sex trafficking) in Bell County who was appointed a lawyer originally a blind man could see was not capable/willing to defend this kid on a murder charge (now that he’s been certified re-indicted to cap). We were desperately looking for a new lawyer for the juvenile, but a single mom with two kids in jail, there was no money to hire a lawyer. Bell county refused to allow a withdrawal of the court-appointed for a new court-appointed. Mr. Fuller, when asked, took this juvenile case pro-bono and has knocked Bell County off its feet. Bell county now  has a new policy because of Mr. Fuller. He has and is fighting this case like he’s being paid a million dollars an hour. His willingness to take this case pro-bono has and will literally save a 14-year-old (trafficking victim) life. We are forever indebted to Mr. Fuller. 

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Staff Highlights: The Voice’s New Communications Coordinator!

The Voice for the Defense is excited to announce that Austin-based graphic designer Rebecca Keith, has joined TCDLA as our new Communications Coordinator!

Rebecca is a solution-driven graphic designer and visual artist, proudly born and raised in the “Wild and Wonderful” state of West Virginia. She earned her BFA from Marshall University, graduating with honors in 2015. She developed a love for travel (and red wine) while studying abroad in Florence, Italy with the university’s College of Art and Media.

Rebecca has since built many strong relationships and gained ample experience generating creative content across a wide variety of industries. Utilizing her fine-tuned skills and expertise, creative problem solving is her happy place. She takes pride in the work she does and enjoys the design process, working passionately on each project that passes by her desk from concept to delivery.

When she is not putting the pencil to paper or the pixel to screen, Rebecca can be found with her nose in a good book, coasting around on her long board, exploring new places and being the best Aunt she can to five beautiful kiddos. As a recent Texas resident, she has summer plans to check out the desert and take surfing lessons at Port Aransas Beach.