Under the Fourth Amendment, is an officer’s intentional use of physical force to apprehend an individual a “seizure” even where the individual escapes?
This case asks whether an officer’s intentional use of physical force to apprehend an individual constitutes a seizure for Fourth Amendment purposes, even if the officer does not successfully detain the individual or limit her freedom of movement. Officers Janice Madrid and Richard Williamson temporarily paralyzed Roxanne Torres’s arm after striking it with two bullets as Torres drove at them. Torres argues that based on the common law meaning of the Fourth Amendment and on the Supreme Court’s Fourth Amendment precedents, a person is seized where the officer intentionally applies physical force. Torres contends that although she drove over an hour away from the scene of where she was shot, the officers’ bullets striking her arm constituted a Fourth Amendment seizure. Officers Madrid and Williamson counter that a Fourth Amendment physical-force seizure requires more. The officers maintain that to successfully complete a Fourth Amendment seizure, they would have had to intentionally acquire physical control, which did not occur because Torres fled from the scene. The outcome of this case has important implications for the balancing of interests respecting police conduct and public safety.
Questions as Framed for the Court by the Parties
Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.
In July 2014, two police officers approached an apartment complex in Albuquerque, New Mexico to apprehend Kayenta Jackson, a suspected criminal. Torres v. Madrid at 1–2. The officers first noticed two individuals standing in front of Jackson’s apartment next to a car that was backed into a parking spot. Id. at 2. The officers approached the individuals in case one of them was Jackson. Id. Roxanne Torres, one of these individuals, entered her vehicle and started the engine as the two officers approached her. Id. Torres was high on meth at the time. Id.
One officer approached the driver’s side of Torres’s vehicle and asked several times to see her hands because he perceived furtive movements within the car. Id. The other officer was stationed at the driver-side front tire. Id. Torres testified that she did not know that the individuals outside of her car were police officers and that she could not hear what they were saying. Id. Rather, she believed she was being carjacked, so she put the car in drive. Id. The officers subsequently wielded their guns, and as Torres began to drive away, the officers immediately began shooting. Id. at 2–3. Two bullets hit Torres, temporarily paralyzing her left arm. Id. at 3. The officers testified that they shot at the driver because they felt that they were in danger of being hit by the moving vehicle. Id.
Despite her injuries, Torres managed to escape. Id. She drove a short distance before colliding with a different car and exiting the vehicle. Id. Believing the carjackers were still in pursuit, and while she was still under the influence of meth, Torres stole a separate car and drove 75 miles to a hospital in Grants, New Mexico. Id. She was eventually airlifted back to Albuquerque where she was arrested and pled no contest to three crimes: (1) aggravated fleeing from a law-enforcement officer; (2) assault upon a police officer; and (3) unlawfully taking a motor vehicle. Id.
In October 2016, Torres brought two civil rights claims under 42 U.S.C. § 1983 against each police officer. Id. She claimed that each officer violated her Fourth Amendment right to be free from unreasonable seizures by seizing her person through the use of excessive force, because a reasonable law enforcement officer would not have shot at her in that situation. Id. at 3–4. She also claimed that each officer engaged in a conspiracy to use excessive force through nonverbal communication. Id. at 4.
The U.S. District Court for the District of New Mexico (the “District Court”) granted the officers’ motion for summary judgment because it held that the officers were entitled to qualified immunity, a type of legal immunity that protects government officials from liability unless they violated a “clearly established” statutory or constitutional right. Id. Additionally, the District Court reasoned that the Fourth Amendment did not apply because Torres was never seized. Id. On appeal, the United States Court of Appeals for the Tenth Circuit (the “Tenth Circuit”) affirmed the District Court’s decision and ruled that, because despite being shot, Torres never stopped or submitted herself to the officer’s authority, and thus was never seized under the Fourth Amendment. Id. at 7. The Tenth Circuit determined that it was bound by its previous decision in Brooks v. Gaenzle, where it held that a suspect negates a Fourth Amendment excessive-force claim if he or she flees after being shot by police because no seizure has occurred in such a situation. Id. The United States Supreme Court granted Torres certiorari on December 18, 2019. Id.
THE ORIGINAL MEANING OF THE FOURTH AMENDMENT
Roxanne Torres argues that based on its original meaning, the Fourth Amendment protects against unreasonable searches and seizures. Brief for Petitioner, Roxanne Torres at 13–14. First, Torres contends that the word “seizure” is synonymous with the phrase “common-law arrest” based on Founding-era dictionaries and references made in Fourth Amendment cases. Id. at 16–18. Second, Torres argues that at the time of the Fourth Amendment’s adoption, a common-law arrest occurred after the police applied physical force to restrain a suspect, even if the suspect escaped. Id. at 18. Torres also claims that, from the Founding Era through the twentieth century, a consensus developed among scholars and judges who understood that intentional touching—regardless of how slight it may be or whether the suspect escapes—constituted an arrest. See id. at 20–22. Therefore, Torres concludes that, under the Fourth Amendment’s original meaning, Officers Madrid and Williamson seized her when their bullets struck her arm even though she was able to drive away. Id. at 13.
In response, Officers Madrid and Williamson argue that although the Court guides its interpretation of the Fourth Amendment using common-law practices, the meaning of the term “seizure” at the time that the Fourth Amendment was adopted does not determine the scope of the Amendment. Brief for Respondents, Janice Madrid and Richard Williamson at 37–38. Furthermore, they assert that if those common-law practices are unclear, the Court must rely on the standards of reasonableness it traditionally applies to determine whether an action violates the Fourth Amendment. Id. In this context, Madrid and Williamson contend that the original meaning of “seizure” is unclear. See id. at 44–45. First, Madrid and Williamson argue that the terms “arrest” and “seizure” were not understood to be interchangeable terms: in some instances, a seizure may not be an arrest although an arrest will invariably be a seizure. Id. at 40–41. Next, they argue that even if the Court accepts Torres’s proposition that “arrest” and “seizure” are synonyms, a successful “arrest” traditionally required an act that limited a person’s freedom of movement or required the officer to obtain actual physical control over a suspect. Id. at 42–43. Therefore, Madrid and Williamson argue that because Torres fled 75 miles from the parking lot where they shot her and was taken to a different hospital all before being arrested one day later, no Fourth Amendment seizure occurred. Id. at 43–44.
THE COURT’S PREVIOUS ANALYSES OF SEIZURES BY PHYSICAL FORCE
According to Torres, a seizure occurs where an individual submits to a show of authority or where an officer applies physical force with the intent to restrain the individual, regardless of whether the individual is actually detained. Brief for Petitioner at 25–26. Torres argues that this proposition is supported by the Court’s reasoning in California v. Hodari D. See id. at 25. In Hodari D., as Torres explains, after officers approached a group of young people, Hodari, who was in that group, ran away from the officers who ultimately gave chase and apprehended him. See id. at 25. Torres argues that the Court’s decision there was instructive—in that it ruled that Hodari was not seized under the Fourth Amendment while being chased because the officer had not yet made physical contact with Hodari and because Hodari did not submit to the officer’s show of authority. Id. at 26. As Torres maintains, Hodari was not seized until the officer tackled him, so at most, Hodari’s actions resulted in an attempted seizure until the point at which the officer tackled him. See id. at 26, 30. These requirements for a seizure, Torres continues, are also supported by the Court’s Fourth Amendment jurisprudence more generally, which has recognized that the Fourth Amendment primarily protects against interferences with people’s personal security, including physically intrusive conduct, which she contends happened here. Id. at 27.
Torres also maintains that a Fourth Amendment seizure does not require physically restraining an individual and, therefore, Madrid and Williamson’s reliance on Brower v. County of Inyo is misplaced. Id. at 32. Torres explains that in Brower the Court held that a seizure occurred when the police ended a car chase by setting up a roadblock and the suspect hit the roadblock and died. Id. Torres argues that in Brower the Court did not decide that (1) whenever the government terminates a person’s movement or control, a seizure occurs; (2) a seizure would have occurred if Brower survived the crash and escaped; or (3) a seizure would have occurred without terminating Brower’s freedom of movement. Id. at 32–33. Instead, Torres maintains that, under Brower, a seizure could occur even though a roadblock, and not the police, stopped Brower because the police created the roadblock and intentionally applied physical force. Id. Therefore, Torres argues, this case supports that restraining liberty of movement is not required for a seizure to occur. See id. at 38. Even if a physical-force seizure requires the police to restrain a person’s movement, Torres argues, however, that a brief, meaningful interference—such as being temporarily paralyzed from an officer’s bullets—satisfies that requirement. Id. at 39. But regardless of how brief the interference, Torres maintains that the officer’s actions must be intentional, serving as an important limiting principle so that accidental physical force made by an officer does fall within the scope of Fourth Amendment. Id. at 33.
Madrid and Williamson counter that Torres ignores important requirements set out in Fourth Amendment cases for physical-force seizures. Brief for Respondent at 8–9. Contrary to Torres, Madrid and Williamson argue that without actually detaining a suspect, a seizure has not occurred for Fourth Amendment purposes even if a police officer’s subjective intent was to detain that suspect. See id. at 10. Instead, they assert that a person is not seized for Fourth Amendment purposes unless (1) based on all the surrounding circumstances, a reasonable person would not feel free to leave, and (2) a person’s freedom of movement is restrained. Id. at 9. Madrid and Williamson contend that here, Torres’ freedom of movement was not restrained because she was physically able to drive away, and she must have felt free to leave the parking lot because she drove over an hour away from the place where she was shot. Id. at 12. Therefore, they conclude that because Torres could, and did flee, no Fourth Amendment seizure occurred. Id.
Further, Madrid and Williamson argue that Hodari D. is factually inapposite. Id. at 20. They argue that Hodari D. asked whether Hodari was “seized” while he ran away from the police; in other words, the Court focused on whether Hodari’s conduct satisfied the requirements of a show-of-authority seizure and not a physical-force seizure. Id. at 20–21. In addition, Madrid and Williamson contend that in Hodari D., the Court never considered whether a seizure would have occurred if Hodari escaped after the police had made physical contact with him. See id. at 21. Therefore, because the issue in Hodari D. was not focused on completing a physical-force seizure, they argue that Brower controls the outcome in this case. Id. at 28. Madrid and Williamson maintain that Brower held that a seizure occurs where, regardless of the reason for the termination, the police intentionally terminate a person’s freedom of movement. Id. at 32. Further, they assert that the Court has since adopted the Brower framework and not the Hodari D. framework in subsequent physical-force seizure cases. Id. Thus, because of the circumstances surrounding Torres’ encounter, including her conduct after she was shot, Madrid and Williamson argue that no Fourth Amendment seizure occurred. Id. at 47–48.
ACCOUNTABILITY OF POLICE MISCONDUCT
In support of Torres, the NAACP Legal Defense & Educational Fund (“NAACP”) argues that the Fourth Amendment has consistently been the primary vehicle to discourage police misconduct. Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, in support of Petitioner at 8. But the NAACP contends that the Tenth Circuit’s decision here shields a significant number of police shootings from Fourth Amendment scrutiny, thereby allowing police misconduct to go unchecked. Id. Additionally, a group of Fourth Amendment scholars in support of Torres argue that the Tenth Circuit’s decision has the perverse effect of shielding police officers’ use of force—even when that force is deadly—simply because the officers failed to restrain the suspect. Brief of Amicus Curiae Fourth Amendment Scholars, in support of Petitioner at 18. Moreover, the American Civil Liberties Union (“ACLU”) adds that under this same logic, officers are further protected from any inquiry into their actions as the reasonableness of their decision to use force is also immune from scrutiny. Brief of Amicus Curiae American Civil Liberties Union, in support of Petitioner at 13.
In support of Madrid and Williamson, the National Association of Counties (“NAC”) counter that it is not necessary to distort the meaning of the word “seizure” to provide relief in instances like Torres’s. Brief of Amicus Curiae National Association of Counties et al., in support of Respondent at 26. While the NAC concedes that the Fourth Amendment provides the only remedy for excessive force claims that occur during an arrest or seizure, they contend that when a seizure has not been affected, other constitutional protections, including substantive due process rights, can offer a remedy for inappropriate government action. Id. Additionally, the NAC asserts that state tort law is another potential avenue of relief for individuals who were subject to physical force but were not officially “seized” under the Fourth Amendment. Id. The NAC concludes that it is therefore unnecessary to redefine the word “seize” to provide relief in excessive force cases. Id. at 27.
PUBLIC SAFETY AND OFFICIAL MISCONDUCT
In support of Torres, the American Association for Justice (“AAJ”) argues that the public trust in law enforcement is at a record low and that the Tenth Circuit’s decision not only continues to erode that trust, but also harms the community. Brief of Amicus Curiae American Association for Justice et al., in support of Petitioner at 5, 8. The AAJ asserts that between 2015 and 2018 police officers shot and killed nearly 1,000 people per year, and in the new era of technology it is increasingly easier to publicize these events and further public distrust. Id. at 6–8. Also, the AAJ contends that police officers rarely face internal discipline or criminal prosecution for these incidents. Id. at 8. Because of this lack of accountability, the AAJ argues that officers are not dissuaded from using excessive force and the Fourth Amendment must continue to serve as a check on their behavior. Id.
In support of Madrid, the NAC counters that Torres’s proposed definition of “seizure” harms the community because it incentivizes suspects to flee from police officers. Brief of NAC at 24. The NAC contends that street pursuits are dangerous because they place police officers, suspects, and civilians at risk of severe injury and death. Id. Yet, NAC asserts that, under Petitioner’s “mere touch” rule, suspects are incentivized to flee upon being touched by a police officer because it provides an opportunity to get rid of or hide contraband or other evidence while maintaining the ability to also challenge the police’s conduct under the Fourth Amendment. Id. Additionally, the NAC asserts that Torres’s definition of “seizure” would harm public safety by disincentivizing police officers from using the appropriate force required to restrain a fleeing suspect. Id. The NAC contends that fleeing suspects typically require additional force to restrain them because suspects who ignore police orders are likely to be more combative than a suspect who submits. Id. Thus, the NAC argues that if suspects can easily bring excessive force claims, police officers will be reluctant to use the additional force necessary to prevent these same suspects from fleeing out of fear of future legal action. Id.
POLICE CULPABILITY BASED ON A SUSPECT’S RESPONSE
In support of Torres, the AAJ argues that it is irrelevant whether an officer succeeds in subduing the suspect after applying force. Brief of AAJ at 10. The AAJ contends that this is because an officer who unreasonably uses excessive force is culpable irrespective of whether he kills or merely wounds the suspect, and liability should not turn on the suspect’s response. Id. Torres also asserts that defining seizure based on the suspect’s actions can create a series of difficult questions, including how to define when a seizure actually occurs, how soon after the officer applies force must the suspect submit, and many others. Brief for Petitioner at 44. Finally, the ACLU adds that it is illogical to base Fourth Amendment protection against deadly or other physical force upon the subject’s reaction to that force because it allows police officers to inflict as much pain or damage on the suspect so long as the suspect can flee. Brief of ACLU at 12.
In support of Madrid, the NAC argues that Torres’s definition of “seizure” creates inconsistencies in Fourth Amendment law. Brief of NAC at 25. The NAC contends that the seizure, as defined in Hodari D., requiring a submission to the assertion of authority is incongruous with Torres’s “mere touch” rule, which renders the suspect’s response completely irrelevant. Id. Next, the NAC contends that common sense also indicates that a seizure requires an actual submission, as someone who never submits to police authority and evades capture cannot have been seized under the Fourth Amendment. Id. at 9. The NAC concludes by arguing that just as the Tenth Circuit’s definition of seizure creates challenging questions, Torres’s definition creates a laundry list of difficult questions as well, including how to define when a seizure ends. Id. at 25.