*Randal John Meyer
“[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” In 1985, Justice White wrote those words to answer the question of whether the Fourth Amendment’s seizure language included the use of deadly force against a fleeing suspect in Tennessee v. Garner. More recently, the ACLU in al-Aulaqi v. Panetta argued that the federal government had infringed on Anwar al-Aulaqi’s right to be free from unreasonable seizure under the Fourth Amendment when they killed him with a drone strike. In that case, the district court found that the plaintiffs “ha[d] not stated a Fourth Amendment claim,” and thus were not entitled to damages under Bivens v. Six Unknown Named Agents of the Federal Narcotics Bureau.
The district court’s decision rested primarily on Graham v. Connor, a Fourth Amendment excessive force case, and the classic Fourth Amendment case, Terry v. Ohio. Relying on a footnote in Terry, the court reasoned that “seizure” under the Fourth Amendment a government official must “‘by means of physical force or show of authority . . . in some way restrained the liberty of a citizen.’” Moreover, that “a “seizure” occurs when an officer brings a person “within the officer's control,” either by application of force, even if slight, or by the person's submission to a law enforcement officer's show of authority.” This formulation of the rule interprets the “liberty” as if it were only the liberty of free movement, much narrower than the category of “seizures” which would qualify under the later Garner decision.
With this construction in mind, it is no wonder that when the court discussed Graham, it noted “the plaintiff in Graham claimed that an officer used excessive force during an investigatory stop,” or a restriction on his liberty of physical movement. This stands in contrast to the case at bar, where the government used unmanned drones to make no attempt to restrict his liberty of movement or bring him under government control, but for the sole purpose of killing Anwar al-Aulaqi: “Plaintiffs further admit the inapplicability of Fourth Amendment principles by asserting that the United States killed the three men with missiles from unmanned drones. Unmanned drones are functionally incapable of ‘seizing’ a person; they are designed to kill, not capture. As the decedents were not ‘seized,’ Plaintiffs have not stated a Fourth Amendment claim.” However, that is the functional equivalent of saying that a police officer who uses an unmanned drone to conduct his duties does not use seize a suspect using excessive force when his drone sneaks up on a suspect and he commands the drone to kill him without warning.
In finding that “in fact there was no “seizure” of Anwar Al–Aulaqi” and that the ACLU “[i]mpliedly concede this point when they complain that Defendants should have captured (i.e., seized) Anwar Al–Aulaqi instead of killing him,” the court made clear reversible error: it didn't apply the right rule. The court here failed to recognize the touchstone of determining if a person was seized is whether a person was apprehended, not just whether the person was subjected to a restriction of movement pursuant to police power. The latter simply is a way in which the former can be accomplished, not the only way. As stated at the beginning of this piece, the rule in Fourth Amendment excessive force cases is that apprehension by the use of deadly force is a Fourth Amendment seizure. Otherwise, it would create a loophole to use excessive force with a rather macabre perverse incentive. A deadly shooting of a fleeing suspect does, in fact, apprehend the suspect and bring that suspect within police control—the force used that robbed the suspect of his ability to move and the resultant death certainly demonstrates law enforcement’s exertion of control over the suspect, no matter how brief. That same reasoning understandably extends to drone strikes, as it merely changes the enforcement tool from gun to missile. Anwar al-Aulaqi was apprehended and, in the estimation of his killers, brought to justice. A fleeing robber who is shot and killed exiting the scene of crime is no less seized, or brought within the reach of governmental power and punishment, than a robber doing the same and being halted for an investigatory Terry stop.
This conclusion logically follows from application of the proper case, Garner, and the facts of the Graham case. In Garner, the police responded to a burglary call and in the course of investigating, the burglar began to flee. Knowing that the suspect was unarmed, the police yelled for him to halt, but decided to shoot him before he could finish scaling the fence. The court held that the police did in fact seize the suspect. Most important for these purposes, however, is that the police never applied any force to restrain his freedom of movement, except for the bullet that killed him. Thus, the application of the Graham case, where the suspect was subjected only to a particularly brutal and long investigatory stop, restraining solely his freedom of movement, is inapposite. It bears little resemblance to the sort of force applied in the al-Aulaqi case, where the Garner case is much more comparable, albeit not perfectly analogous.
Thus, the issue with the Panetta decision is twofold. First, it both reads the Fourth Amendment Terry rule regarding seizures too narrowly so that apprehension by deadly force is not a seizure, contrary to later Supreme Court precedent. Second, the case relied on by the court to illustrate its improper distinction bears almost no resemblance to the facts of the case where more analogous and equally controlling precedents are available.
* Randal is a graduate of Brooklyn Law School and served as an Articles Editor on the Brooklyn Law Review.
 Tennessee v. Garner, 471 U.S. 1, 7 (1985).
 Al-Aulaqi v. Panetta, --- F. Supp. 2d ---, 2014 WL 1352452, at *11 (D.D.C. April 4, 2014).
 490 U.S. 386 (1989); 392 U.S. 1 (1968).
 Panetta, 2014 WL 1352452, at *11 (quoting Terry, 392 U.S. 1, 19 n.16).
 Id. (quoting and citing California v. Hodari D., 499 U.S. 621, 624–626, (1991)).
 See id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989)).
 Tennessee v. Garner, 471 U.S. 1, 3-4 (1985).
 See generally Graham v. Connor, 490 U.S. 386 (1989)