A closely divided Supreme Court has held that a woman shot by pursuing police officers has been "seized" within the meaning of the Fourth Amendment even though she managed to escape. A18, March 26. Thus, the woman will be permitted to maintain a lawsuit against the officers for use of excessive force. Three justices, through a dissent written by Justice Gorsuch, mocked the majority's ruling as contrary to common sense and as bending the law to appease public opinion.
The rather esoteric issue of whether a bullet striking a person constitutes a seizure while a missed shot would not, could be made irrelevant if the Court adopted a common sense approach which recognized the concept of an attempted unconstitutional seizure. The liability of private citizens who attempt to commit a crime which they fail to accomplish is a well-recognized principle of law. Yet the Supreme Court has resisted treating an attempted unreasonable seizure as a constitutional violation. There is no good reason for the Court to draw such a distinction since attempted constitutional violations are just as abhorrent and may well inflict as much damage as completed ones.
Just like a private citizen a police officer who unreasonably attempts but fails to seize someone should be held accountable for the harm caused by his unlawful conduct.
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