In a 5-3 decision authored by Chief Justice Roberts, the U.S. Supreme Court ruled in Torres v. Madrid that a woman who was shot while fleeing from police officers was “seized,” even though she remained at large.
Two police officers saw the petitioner, Roxanne Torres, standing with another person near a car in the parking lot of an apartment complex. As the officers approached the vehicle, the companion departed and Torres got into the driver’s seat. At the time, Torres was “tripping out bad” on methamphetamine. The officers tried to speak with her, but she did not notice their presence until one of them tried to open her car door.
Each of the officers wore tactical vests with police identification. Torres claims she saw only that they had guns. She thought the officers were carjackers and hit the gas to escape them. The officers drew their service pistols and fired thirteen shots as Torres sped off; whether she drove toward them, endangering their safety, is in dispute. Two of the bullets struck Torres; the others hit her car. But Torres kept driving — over a curb, across some landscaping, and into a street, eventually colliding with another vehicle. She abandoned her car and stole another one that happened to be idling nearby. She then drove seventy-five miles to Grants, New Mexico.
The hospital in Grants was able to airlift Torres to another hospital where she could receive proper medical treatment. Unfortunately for Torres, the hospital was back in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.
Two years later, she sued the officers for damages under 42 U.S.C. § 1983. She claimed the officers used excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The federal district court granted summary judgment to the officers, and the Tenth Circuit Court of Appeals affirmed, holding “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” To reach its decision, the Tenth Circuit relied on precedent providing “no seizure can occur unless there is physical touch or a show of authority,” and “such physical touch or force must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect.
The Supreme Court reversed, holding the application of physical force to the body of a person with the intent to restrain is a seizure, even if the person does not submit and is not subdued.
Does any application of force constitute a seizure?
The majority emphasized the application of physical force, standing alone, does not constitute a seizure. A seizure requires the use of force with intent to restrain, as opposed to force applied by accident or for some other purpose. The test remains an objective one: whether the challenged conduct, i.e., the application of force, objectively manifests an intent to restrain. The subjective motivations of the officer, or the subjective perception of the suspect, are not determinative.
How long does the seizure last?
“A seizure is a single act, not a continuous one.” If the subject does not submit, a seizure by force lasts only as long as the application of force. That means the officers seized Torres “for the instant that the bullets struck her.”
What about the bullets that missed Torres?
If the rule articulated by the majority requires the application of force — even a “mere touch” — to the body of a person, a shot that misses its target fails to satisfy a necessary condition. This “artificial distinction” in Fourth Amendment protection drew criticism from the dissent: “A fleeing suspect briefly touched by pursuing officers may have a claim. But a suspect who evades a hail of bullets unscathed . . . is out of luck.”
How did the Justices rule?
Chief Justice Roberts authored the majority opinion, joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. To reach its decision, the majority relied on two sources of constitutional interpretation: text and history.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” As the Court recognized in prior cases, “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” At the time the Fourth Amendment was adopted, as now, “an ordinary user of the English language” could say, “She seized the purse-snatcher, but he broke out of her grasp.”
The majority also examined the common law of arrest, through which the “mere touch” rule developed. That is, a corporeal touch is sufficient to constitute an arrest, even though the subject does not submit. There is no common law authority addressing an arrest through the application of force from a distance, though. The “closest decision” identified by the majority was a debt collection case from 1605. In that case, the “serjeants-at-mace” tracked down a debtor, “shewed her their mace, and touching her body with it, said to her, we arrest you madam.” To the majority, 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.”
Justice Gorsuch filed a twenty-six page dissenting opinion, joined by Justices Thomas and Alito. Despite its length, the point was simple: a seizure requires possession. The dissent criticized the majority for conducting a “schizophrenic” textual analysis, cherry-picking from legal history, and ignoring established precedent all for the sake of crafting a new bright-line rule. Rather than simplify things, however, “the majority’s new rule for ‘mere touch’ seizures promises only to add another layer of complexity to the law.”
Justice Barrett took no part in the consideration or decision of this case.
A departure from precedent?
In Mendenhall, Justice Stewart articulated what would become the modern test for seizures under the Fourth Amendment: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Whether the restraint of liberty was effected through the use of force, or a show of authority, the test was, in most cases, the same. As the word “seizure” has historically meant “taking possession,” though, the Court in Hodari D. held the seizure of a person through a “show of authority” occurs only if the suspect submits to an officer’s control. (“A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.”) Justice Scalia, writing for the majority in Hodari D., recognized in dicta that the same result follows in cases involving the use of force: unless the subject yields, no seizure occurs. The Torres majority back-tracks to make a distinction between seizures by control and seizures by force — a distinction that it says was “improperly erased” through precedent by the Court’s own inattention.
What does the decision mean for excessive-force claims?
Torres already had state law remedies available to challenge the officers’ actions. But a seizure triggers protections under the Fourth Amendment. Now, she can proceed with her excessive-force claims against the officers under 42 U.S.C. § 1983, which imposes liability against every person who, acting under color of state law, deprives another of his or her rights secured by the Constitution or federal law. The majority made sure to note “a seizure is just the first step of the analysis.” It did not address the reasonableness of the seizure, the damages caused by it, or the defense of qualified immunity. Whether or not her claims for excessive force are ultimately successful, the decision in Torres is an important development in Fourth Amendment jurisprudence.