In 2014, Juan Salazar was pulled over by Officer Juan Molina, at which point Salazar panicked and began driving away, leading police on a brief car chase. Salazar stopped his car when blocked by other police cars, exited his vehicle, and lay prone on the ground with his hands outstretched, while proclaiming “I’m not resisting. Please don’t tase me!” Nevertheless, Officer Molina deployed his taser against Salazar, while shouting that the taser was “for being stupid.” Salazar then brought a Section 1983 claim against Officer Molina, alleging excessive force in violation of the Fourth Amendment.

In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court laid out the basic framework for evaluating claims of excessive force, holding that the operative question is whether the officer’s actions were “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. That evaluation in turn requires courts to consider three distinct factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Under any ordinary application of these factors, Officer Molina’s tasing would constitute excessive force: Salazar was not suspected of any serious crime, and at the time of the tasing he was laying on the ground with his hands outstretched, verbally clarifying that he was not resisting.

But the Fifth Circuit held that Officer Molina had not violated Salazar’s Fourth Amendment rights, simply because Salazar had previously fled from his traffic stop. According to the court, “when a suspect has put officers and bystanders in harm’s way to try to evade capture, it is reasonable for officers to question whether the now-cornered suspect’s purported surrender is a ploy.” In other words, instead of considering the actual facts of this case – which did not suggest at all that Salazar’s surrender was a “ploy” – the Fifth Circuit instead created a new “past-flight-forfeits-surrender” rule, effectively creating a lower-tier of Fourth Amendment protection for such suspects.

Salazar therefore filed a petition for certiorari with the Supreme Court, and Cato – joined by the Rutherford Institute – filed a brief in support of this petition. The Fifth Circuit’s decision not only conflicts with Graham v. Connor and creates a circuit split with the Sixth and Seventh Circuits; it will also severely undermine police accountability at a time when law enforcement is already facing a crisis of public confidence. In recent years – especially after the murder of George Floyd at the hands of Minneapolis police – public trust in law enforcement has fallen to record lows, in large part because of the frequency with which police officers are not held accountable for their misconduct. That lack of accountability hurts not just the victims of police misconduct, but law enforcement officers themselves, by depriving police of the trust and respect they need to do their jobs safely and effectively. Thus, it is especially urgent for the Supreme Court to hear this case, to clarify that police officers do not have carte blanche authority to use excessive force anytime a suspect flees from them.