Written by: McKenna Stone Cloud
For the past thirty years, the legal community has been puzzled over what amounts to a “seizure” of a person under the Fourth Amendment. Two seemingly conflicting Supreme Court cases from the 1980s and 1990s left us with unanswered questions. For instance, is a person “seized” under the Fourth Amendment when he escapes from an officer’s use of force? After three decades, the Supreme Court finally provided answers in March of 2021. In Torres v. Madrid et al., 592 U.S. __ (2021), the Court resolved a 30-year-old circuit split by holding that a police officer’s shooting of a fleeing individual, regardless of whether that individual escapes, qualifies as a Fourth Amendment seizure.
Background on Fourth Amendment Seizures of Persons
The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Naturally, since the inception of the Constitution, the Supreme Court has grappled with defining what qualifies as an unreasonable search or seizure. Regarding the seizure of persons, the Supreme Court has provided conflicting definitions of a physical seizure in two cases, both authored by Justice Scalia: Brower v. Cnty. of Inyo, 489 U.S. 593 (1989),and Cal. v. Hodari D., 499 U.S. 621 (1991).
Decided only two years apart, Brower and Hodari D. seemed to issue different requirements for seizures of persons. According to Brower, a physical seizure is affected “only when there is a governmental termination of freedom of movement through means intentionally applied.” 489 U.S. at 596-97. However, the Court produced a contradicting definition of a physical seizure in Hodari D. when it held, “[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.” Hodari D., 499 U.S. at 626. In other words, Brower required actual control of the person to constitute a seizure, while Hodari D. found actual control to be unnecessary so long as the government agent applied physical force. After these two conflicting definitions, lower courts faced a baffling issue: Does a physical seizure occur if the suspect evades arrest?
This question, that was left unanswered for three decades, led to a circuit split. Some circuits followed Hodari D.’s definition of a physical seizure, requiring only physical contact with intent to restrain, irrespective of actual control. Alternatively, other circuits followed Brower’s approach, requiring intent to terminate movement and successful termination of movement. After thirty years of confusion and dis-uniformity, the Court finally cleared up the definition of a physical seizure in Torres.
Torres v. Madrid – Summary of the Case
On July 15, 2014, officers of the New Mexico State Police arrived at an apartment complex to execute an arrest warrant. They approached Roxanne Torres, who was not the target of the warrant, in the apartment parking lot. When the officers attempted to speak with Torres, she entered her vehicle and drove away, believing the officers to be carjackers. As she fled, the officers shot thirteen bullets at her vehicle, two of which struck Torres. She escaped and was airlifted to a hospital, where police arrested her the following day. Torres subsequently filed a suit against the officers under 42 U.S.C. § 1983, alleging that the police used excessive force against her and that the shooting amounted to a Fourth Amendment seizure.
The District Court granted summary judgment in favor of the officers, and the United States Court of Appeals for the Tenth Circuit affirmed. The Tenth Circuit held, “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” (Torres v. Madrid, 769 Fed. Appx. 654, 657 (10thCir. 2019)).
The United States Supreme Court granted certiorari to resolve the circuit split over the definition of a physical seizure and to address the following issue: “Whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.”
Reconciling Hodari D. and Brower
To resolve this circuit split and answer this issue, the Court revisited the appropriate applications of Hodari D. and Brower. First, the Court clarified that seizures of persons can occur through either “physical force” (a “physical force” seizure) or a “show of authority” that “in some way restrain[s] the liberty” of the individual (a “control” seizure). (citing Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968)). But what about the situation in which the person is not subdued? This is where the rubber meets the road. Essentially, the Court clarified that the answer depends on which category of seizure applies: “physical force” or “control” seizures.
Under the first “physical force” category, the Court determined that Hodari D. applies. In Hodari D., Justice Scalia defined seizure by turning to the common law of arrest, which classified “the mere grasping or application of physical force with lawful authority” as an arrest, irrespective of whether it successfully subdued the arrestee. (Hodari D., 499 U.S. 621, 625 (1991)). Therefore, after affirming that common law arrests are Fourth Amendment seizures, the Torres Court held that actual control or restraint of the suspect is not necessary to find a “physical force” seizure.
The Court also clarified the two elements required to satisfy a “physical force” seizure: (1) the application of physical force by a government agent; and (2) the government agent’s intent to restrain. Under the first “force” element, physical force need not occur through bodily contact; an object, such as a bullet, can satisfy this requirement. Under the second “intent” element, the test is “whether the challenged conduct objectively manifests an intent to restrain.” (Torres v. Madrid et al., 592 U.S. ___ (2021)). The subjective motivations of officers and beliefs of the seized person are immaterial. While a “mere touch” can amount to a seizure, the amount of force used may be considered when assessing objective intent to restrain. Finally, the Court determined that, absent submission, a “physical force” seizure ends when the application of force ceases. (citing Hodari D., 499 U.S. at 625).
Under the second category of seizures, “control” seizures, the Court clarified that Brower governs. The Court defined such a seizure as “either voluntary submission to a show of authority or the termination of freedom of movement.” Either way, unlike a “physical force” seizure, the government must obtain actual control over the seized person.
So, into which category does Torres’s situation fall?
Application and Outcome
The Court found that by shooting Torres upon her escape, the officers’ conduct amounted to a “physical force” seizure, placing this case in the first category. As such, Hodari D governed the analysis. Turning to the two elements for a “physical force” seizure, first, Torres had to show that the officers applied physical force to her. The Court determined that the two bullets that struck Torres qualified as physical force, satisfying the first element. Next, Torres had to prove that the officers intended to restrain her. The Court concluded that the officers’ conduct of ordering Torres to stop and then shooting at her manifested their objective intent to restrain her. Therefore, “the officers seized Torres for the instant that the bullets struck her.” (Torres v. Madrid et al., 592 U.S. ___ (2021)).
The Court provided a clear holding to address the issue presented and resolve the circuit split: “The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” Accordingly, the Court reversed and remanded the case. The Court did not discuss whether Torres’s seizure was reasonable under the Fourth Amendment.
Good Questions by the Dissent
The Dissent and officers proposed a different test for defining all seizures of persons: “an intentional acquisition of physical control.” (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)). Pursuant to this approach, the majority’s two categories of seizures would be eradicated, and all seizures of persons would require actual control of the individual. While the dissenting approach was dismissed by the majority, Gorsuch’s dissenting opinion does raise some interesting questions that lower courts will have to address as a result of the Torres holding. For instance, what kind of touching will qualify as “physical force”? Will an officer’s pepper spray that enters a person’s lungs count? What about a loud flash-bang grenade that damages a suspect’s eardrum? If an officer shines a laser in a person’s eyes to stop them, would this be “physical force”? Finally, “What about an officer’s bullet that shatters the driver’s windshield, a piece of which cuts her as she speeds away?” (Torres v. Madrid et al., 592 U.S. ___ (2021) (Gorsuch, J., dissenting)). The Dissent raises some interesting hypotheticals that could certainly lead to more confusion by lower courts.
After three decades of confusion, we finally have clarity on what qualifies as a Fourth Amendment seizure of a person. An individual can still be seized even if they evade arrest. The Court confirmed that Bower and Hardi D. are still good law, and that they each apply in different types of seizures. While Torres answers many previously unanswered questions, as the Dissent points out, new questions will inevitably replace them.