6 ms·

I don't find Gorsuch's quoted counterposition convincing. It seems to me that expanding "unreasonable seizure" to include "unreasonable attempted seizure" prett

I don't find Gorsuch's quoted counterposition convincing. It seems to me that expanding "unreasonable seizure" to include "unreasonable attempted seizure" pretty easy logic to follow, assuming that's a valid summary of the decision. Now if we can get a case to find the same for "civil asset forfeiture" / literally legal highway robbery by police, that would be great.

dexterdog 6y ago
I'm still waiting for a case to come up where a person kills a police officer for stealing from him in a civil asset forfeiture situation. They wouldn't want me on that jury.
- dooglius 6y ago
  Juries don't sent precedents, you'd want to vote to convict if you want the matter appealed for the SCOTUS to hear it
  - 1cvmask 6y ago
    Maybe he wants to convict and that’s why you wouldn’t want him on the jury????
  - raoa 6y ago
    Even better is the jury could refuse to convict and the question of jury nullification could be taken up by the Supreme Court.
    - Godel_unicode 6y ago
      Is there a question of jury nullification?
    - JumpCrisscross 6y ago
      > the question of jury nullification could be taken up by the Supreme Court The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.
      - cgriswald 6y ago
        Judges talk about it all the time, usually in less direct language, when they give the jury their instructions. The solution is: judges talk about it, but can't really stop a jury from doing it. I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..) I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.
        JumpCrisscross 6y ago
        > In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc.. Jury nullification is a jury acting on its own accord, without respect to the law. Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.
        cgriswald 6y ago
        I remain unconvinced. It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? Sure. But so can any other power granted by the law. It is generally accepted that powers, both explicit and implicit can be used by the government. This includes elected officials and unelected bureaucrats. I see no reason not to extend the same to jurors.
        JumpCrisscross 6y ago
        > It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.
    - cgriswald 6y ago
      A prosecutor can't appeal an acquittal. Jury nullification is only considered in cases where (for instance) judges instruct juries in ways that prohibit them from considering jury nullification and the defendant is found guilty. The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.
      - elliekelly 6y ago
        I’m not the person you replied to but I believe the “question” of jury nullification they were alluding to was whether or not it can be argued by the defendant. I’m not a criminal lawyer but from what I recall the answer (for lawyers representing defendants, at least) is no. Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.
        cgriswald 6y ago
        A judge did and it went to the SCOTUS: https://reason.com/2017/06/20/although-juries-can-acquit-the-guilty-9t/ https://reason.com/2017/06/20/although-juries-can-acquit-the... Quoth the judge: > You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case. On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.
        FpUser 6y ago
        One of the things SCOTUS said in regards to this particular case: "While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification." There is also no implied punishment so the judge in case overstepped.
    - retrac 6y ago
      For your interest, jury nullification has been addressed directly by the Supreme Court in Canada. They reasoned that a judge does indeed has a duty to stop jury nullification with proper jury instruction, and by preventing council from raising the prospect of nullification to the jury: > It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether. The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.
remarkEon 6y ago
The quote is not really a good summary of his argument. The full Opinion elaborates much more on this, and his point is (from my reading) that it's a function of the "state" of the interaction between the police and the suspect, and what the definition of the word "seizure" means. I don't know if I find it convincing yet, but it's worth thinking about at least. Full Opinion here[0], Dissent starts on page 22. Full Oral Argument here[1], presented by the wonderful folks over at Oyez who really do wonderful work in cataloging the history of the Court (I'm not connected to them, just love what they do and I recommend folks listen to cases if only to sharpen your own rhetorical toolset). [0] https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf [1] https://www.oyez.org/cases/2020/19-292 https://www.oyez.org/cases/2020/19-292
- infogulch 6y ago
  Thank you for adding value to my comment by adding details that would help a reader judge for themselves the validity of the summary. I will have to take a closer look, and encourage other readers to do so as well.
at-fates-hands 6y ago
> I don't find Gorsuch's quoted counterposition convincing. Gorsuch called the court’s opinion “novel” and “mistaken.” The majority “holds that a criminal suspect can be simultaneously seized and roaming at large. ... In two centuries filled with litigation over the 4th Amendment’s meaning, this court has never before adopted the majority’s definition of a ‘seizure.’ Neither the Constitution nor common sense can sustain it.” Sounds a bit like Schrödinger's cat dilemma. Can a suspect be considered "seized" while at the same time roaming free? I think that was his point. You can't really expand the notion to attempted - doesn't it have to be one state or other?
- michaelmrose 6y ago
  If you were arrested without good cause and then let free you were seized, past tense, and then free at the same time. The same is true if you were held momentarily then got free. Being freed in 10 seconds or 10 years later doesn't make the seizure less unlawful and your current disposition should have little to do with deciding what WAS lawful at time of seizure. Deciding that shooting a suspect unlawfully counts as detaining them is more challenging than the current state. I would prefer to call it attempted murder and prosecute the shooter.
  - amscanne 6y ago
    The suspect was, at no point during the time period relevant to complaint, under the physical control of the police. That's the point. You can say that you were "seized" if the physical control lasted 10 seconds or 10 years, but in this case there was only attempted seizure.
    - theossuary 6y ago
      I don't know, I think shooting somebody (or even shooting at somebody) puts them under your physical control.
- remarkEon 6y ago
  >Sounds a bit like Schrödinger's cat dilemma. Yes. I recommend reading the whole opinion (both the Majority and the Dissent). It really is an interesting question.
cma 6y ago
> literally legal highway robbery by police, that would be great. That's not true. I believe just the burden of proof is more similar to civil (preponderance of the evidence) than criminal (beyond a reasonable doubt). It still seems unreasonable, but not literally legal highway robbery.
- chrismcb 6y ago
  That isn't my understanding of civil forfeiture. Basically they accuse your stuff and take it. Now you have to convince the court that it isn't I'll gotten gains.... That is if you have the time and money to fight it.
- adgjlsfhk1 6y ago
  This is false. https://www.law.cornell.edu/wex/civil_forfeiture https://www.law.cornell.edu/wex/civil_forfeiture. Once the assets are seized, there is a burden of proof on the owner to prove that the property was not guilty.
  - cma 6y ago
    I should have said standard of proof instead of burden of proof. I believe it is under a preponderance standard (>50%), not a beyond a reasonable doubt (that it isn't guilty) standard. Maybe in some states it is that you would only keep whatever fraction of certainty you proved, as is done in civil disputes in some places?
chmod600 6y ago
As a general rule I never trust a news outlet to accurately summarize a supreme court opinion.
- infogulch 6y ago
  Neither do I, but I didn't have the time to spend hours in a deep-dive to read the court opinion directly. So given the choice between 1: Say nothing, which is known to not spread lies but has no potential to help anyone, and 2: Extend the article's potential misrepresentation by repeating it as fact, instead I chose option 3: Include my confidence interval in my comment explicitly which enables readers such as yourself to make their own judgment call, but which opens me up to obvious "criticism" by people who are so thrown off by the straightforwardness of this strategy that they can't help themselves from repeating the clearly stated choice while pinning it with their own judgement. Think of it like this: my comment is a function with a parameter for "trust of this article's summary" for which I trust my reader to provide a value that works well for them, and in turn I give them a comment that they can evaluate themselves. I hope more people choose option 3, but I can sympathize with why they wouldn't. :)
curryst 6y ago
I would encourage you to read the opinion; it's a lot more nuanced than that. This bit struck me: Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. Ante, at 4. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. Ante, at 15. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. He goes on to mention that the term "seizure" is used in reference to 4 objects in the 4th Amendment, and that prior case law forbids interpreting the same term to mean different things depending on the object being modified. From the opinion: To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf, 510 U. S., at 143 (internal quotation marks omitted). I think I'm with Gorsuch here. While I do think the officers acted unreasonably and should be punished, the 4th Amendment doesn't seem to apply. You end up with weird and inconsistent cases. If an officer shoots at someone shooting at him, and ends up hitting a hostage in the house, has he arrested the hostage? Probably not, so now we have to add another layer of complexity in determining whether the officer intended to arrest that person, or "accidentally arrested" them. It just becomes incoherent. I also find it notable that the majority declines to comment on Gorsuch's hypotheticals like lasers or tear gas. Has everyone who's been tear gassed been arrested? What if the wind blows it a different direction? The resulting case law is going to be a mess. I agree that "unreasonable attempted seizure" should be illegal, there's a gap in the law there. I just think it's up to the legislative branch to fix that. The case law doesn't seem to support the majority opinion; it reads to me like they started with a conclusion and worked backwards.
- 8note 6y ago
  I would say yes, everyone who has been tear gassed has been arested. The answer to these "accidentally arested people by tear gassing them" is that tear gas is not a suitable tool for aresting people when there are nearby houses, or peaceful protests

dexterdog 6y ago

I'm still waiting for a case to come up where a person kills a police officer for stealing from him in a civil asset forfeiture situation. They wouldn't want me on that jury.

dooglius 6y ago
Juries don't sent precedents, you'd want to vote to convict if you want the matter appealed for the SCOTUS to hear it
- 1cvmask 6y ago
  Maybe he wants to convict and that’s why you wouldn’t want him on the jury????
- raoa 6y ago
  Even better is the jury could refuse to convict and the question of jury nullification could be taken up by the Supreme Court.
  - Godel_unicode 6y ago
    Is there a question of jury nullification?
  - JumpCrisscross 6y ago
    > the question of jury nullification could be taken up by the Supreme Court The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.
    - cgriswald 6y ago
      Judges talk about it all the time, usually in less direct language, when they give the jury their instructions. The solution is: judges talk about it, but can't really stop a jury from doing it. I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..) I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.
      - JumpCrisscross 6y ago
        > In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc.. Jury nullification is a jury acting on its own accord, without respect to the law. Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.
        cgriswald 6y ago
        I remain unconvinced. It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? Sure. But so can any other power granted by the law. It is generally accepted that powers, both explicit and implicit can be used by the government. This includes elected officials and unelected bureaucrats. I see no reason not to extend the same to jurors.
        JumpCrisscross 6y ago
        > It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.
  - cgriswald 6y ago
    A prosecutor can't appeal an acquittal. Jury nullification is only considered in cases where (for instance) judges instruct juries in ways that prohibit them from considering jury nullification and the defendant is found guilty. The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.
    - elliekelly 6y ago
      I’m not the person you replied to but I believe the “question” of jury nullification they were alluding to was whether or not it can be argued by the defendant. I’m not a criminal lawyer but from what I recall the answer (for lawyers representing defendants, at least) is no. Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.
      - cgriswald 6y ago
        A judge did and it went to the SCOTUS: https://reason.com/2017/06/20/although-juries-can-acquit-the-guilty-9t/ https://reason.com/2017/06/20/although-juries-can-acquit-the... Quoth the judge: > You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case. On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.
        FpUser 6y ago
        One of the things SCOTUS said in regards to this particular case: "While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification." There is also no implied punishment so the judge in case overstepped.
  - retrac 6y ago
    For your interest, jury nullification has been addressed directly by the Supreme Court in Canada. They reasoned that a judge does indeed has a duty to stop jury nullification with proper jury instruction, and by preventing council from raising the prospect of nullification to the jury: > It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether. The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.

remarkEon 6y ago

The quote is not really a good summary of his argument. The full Opinion elaborates much more on this, and his point is (from my reading) that it's a function of the "state" of the interaction between the police and the suspect, and what the definition of the word "seizure" means. I don't know if I find it convincing yet, but it's worth thinking about at least. Full Opinion here[0], Dissent starts on page 22. Full Oral Argument here[1], presented by the wonderful folks over at Oyez who really do wonderful work in cataloging the history of the Court (I'm not connected to them, just love what they do and I recommend folks listen to cases if only to sharpen your own rhetorical toolset). [0] https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf [1] https://www.oyez.org/cases/2020/19-292 https://www.oyez.org/cases/2020/19-292

infogulch 6y ago
Thank you for adding value to my comment by adding details that would help a reader judge for themselves the validity of the summary. I will have to take a closer look, and encourage other readers to do so as well.

at-fates-hands 6y ago

> I don't find Gorsuch's quoted counterposition convincing. Gorsuch called the court’s opinion “novel” and “mistaken.” The majority “holds that a criminal suspect can be simultaneously seized and roaming at large. ... In two centuries filled with litigation over the 4th Amendment’s meaning, this court has never before adopted the majority’s definition of a ‘seizure.’ Neither the Constitution nor common sense can sustain it.” Sounds a bit like Schrödinger's cat dilemma. Can a suspect be considered "seized" while at the same time roaming free? I think that was his point. You can't really expand the notion to attempted - doesn't it have to be one state or other?

michaelmrose 6y ago
If you were arrested without good cause and then let free you were seized, past tense, and then free at the same time. The same is true if you were held momentarily then got free. Being freed in 10 seconds or 10 years later doesn't make the seizure less unlawful and your current disposition should have little to do with deciding what WAS lawful at time of seizure. Deciding that shooting a suspect unlawfully counts as detaining them is more challenging than the current state. I would prefer to call it attempted murder and prosecute the shooter.
- amscanne 6y ago
  The suspect was, at no point during the time period relevant to complaint, under the physical control of the police. That's the point. You can say that you were "seized" if the physical control lasted 10 seconds or 10 years, but in this case there was only attempted seizure.
  - theossuary 6y ago
    I don't know, I think shooting somebody (or even shooting at somebody) puts them under your physical control.
remarkEon 6y ago
>Sounds a bit like Schrödinger's cat dilemma. Yes. I recommend reading the whole opinion (both the Majority and the Dissent). It really is an interesting question.

cma 6y ago

> literally legal highway robbery by police, that would be great. That's not true. I believe just the burden of proof is more similar to civil (preponderance of the evidence) than criminal (beyond a reasonable doubt). It still seems unreasonable, but not literally legal highway robbery.

chrismcb 6y ago
That isn't my understanding of civil forfeiture. Basically they accuse your stuff and take it. Now you have to convince the court that it isn't I'll gotten gains.... That is if you have the time and money to fight it.
adgjlsfhk1 6y ago
This is false. https://www.law.cornell.edu/wex/civil_forfeiture https://www.law.cornell.edu/wex/civil_forfeiture. Once the assets are seized, there is a burden of proof on the owner to prove that the property was not guilty.
- cma 6y ago
  I should have said standard of proof instead of burden of proof. I believe it is under a preponderance standard (>50%), not a beyond a reasonable doubt (that it isn't guilty) standard. Maybe in some states it is that you would only keep whatever fraction of certainty you proved, as is done in civil disputes in some places?

chmod600 6y ago

As a general rule I never trust a news outlet to accurately summarize a supreme court opinion.

infogulch 6y ago
Neither do I, but I didn't have the time to spend hours in a deep-dive to read the court opinion directly. So given the choice between 1: Say nothing, which is known to not spread lies but has no potential to help anyone, and 2: Extend the article's potential misrepresentation by repeating it as fact, instead I chose option 3: Include my confidence interval in my comment explicitly which enables readers such as yourself to make their own judgment call, but which opens me up to obvious "criticism" by people who are so thrown off by the straightforwardness of this strategy that they can't help themselves from repeating the clearly stated choice while pinning it with their own judgement. Think of it like this: my comment is a function with a parameter for "trust of this article's summary" for which I trust my reader to provide a value that works well for them, and in turn I give them a comment that they can evaluate themselves. I hope more people choose option 3, but I can sympathize with why they wouldn't. :)

curryst 6y ago

I would encourage you to read the opinion; it's a lot more nuanced than that. This bit struck me: Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the Fourth Amendment (houses, papers, and effects) requires possession. Ante, at 4. And when it comes to persons, the majority agrees (as Hodari D. held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. Ante, at 15. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. He goes on to mention that the term "seizure" is used in reference to 4 objects in the 4th Amendment, and that prior case law forbids interpreting the same term to mean different things depending on the object being modified. From the opinion: To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf, 510 U. S., at 143 (internal quotation marks omitted). I think I'm with Gorsuch here. While I do think the officers acted unreasonably and should be punished, the 4th Amendment doesn't seem to apply. You end up with weird and inconsistent cases. If an officer shoots at someone shooting at him, and ends up hitting a hostage in the house, has he arrested the hostage? Probably not, so now we have to add another layer of complexity in determining whether the officer intended to arrest that person, or "accidentally arrested" them. It just becomes incoherent. I also find it notable that the majority declines to comment on Gorsuch's hypotheticals like lasers or tear gas. Has everyone who's been tear gassed been arrested? What if the wind blows it a different direction? The resulting case law is going to be a mess. I agree that "unreasonable attempted seizure" should be illegal, there's a gap in the law there. I just think it's up to the legislative branch to fix that. The case law doesn't seem to support the majority opinion; it reads to me like they started with a conclusion and worked backwards.

8note 6y ago
I would say yes, everyone who has been tear gassed has been arested. The answer to these "accidentally arested people by tear gassing them" is that tear gas is not a suitable tool for aresting people when there are nearby houses, or peaceful protests