Is Being Shot in the Torso a Seizure? A Conservative Court Argues Against Traditional Fourth Amendment Interpretations in Torres v. Madrid

By Jillian Knox.

Is there a Fourth Amendment “seizure” when police shoot a fleeing suspect who is injured by the bullets but does not stop? On October 14, 2020, the United States Supreme Court heard oral argument for Torres v. Madrid, a case that addresses this question. The outcome will offer important guidance on what constitutes as “seizure” under the Fourth Amendment and has significant implications for the viability of civil rights lawsuits against the police.

THE FACTS

 

“Constitution in the National Archives” by Mr.TinDC is licensed under CC BY-ND 2.0

In July 2014, New Mexico police officers Janice Madrid and Richard Williamson mistook a car in the parking lot of an Albuquerque apartment complex for the target of an organized crime bust. As they approached the vehicle, the driver, Roxanne Torres, thought she was the victim of an attempted carjacking and drove away. The officers fired at the vehicle. Torres was hit with two bullets but did not stop. She made it to a nearby parking lot, swapped her damaged car for an unattended vehicle, and drove 75 miles to Grants, New Mexico. She then checked into the hospital, where she was arrested the following day. Testimony indicates that the bullets hit Torres in the torso, and that immediately after she was shot, one of her arms was temporarily paralyzed. In 2016, Torres filed a civil rights lawsuit against Madrid and Williamson, alleging that she was the victim of an unreasonable Fourth Amendment seizure. The District Court for the District of New Mexico held on summary judgement that the shooting was not a seizure, and the Tenth Circuit affirmed.

In oral arguments, Mark Standridge, counsel for Madrid and Williamson, contended that an unsuccessful attempt to restrain an individual is not a “seizure.” He advocated a bright-line rule that an individual’s “freedom of movement” must be physically restrained for a seizure to occur. He also argued that the Court should “reject historic relics that are not suited to the modern era” and interpret the Fourth Amendment “in light of contemporary norms and contemporary conditions.” On the other side, Kelsi Corkran argued on behalf of Torres, joined by eight amici (including the ACLU, the Cato Institute, the Rutherford Institute, and the Fourth Amendment Scholars). Relying on the definition of seizure set out in California v. Hodari D. and “the plain text of the Fourth Amendment,” she argued that Torres was seized when she was shot.

FOURTH AMENDMENT “SEIZURES”

In Terry v. Ohio, the Supreme Court held that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Twelve years later, in United States v. Mendenhall, Justice Stewart wrote that a person is seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” However, the court departed from the “reasonable person” test in Brower v. Inyo County. The majority opinion, authored by Scalia, held that a physical seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” Two years later, in California v. Hodari D., the court defined physical seizures as intentional physical force, regardless of its success. Scalia, writing for the seven-justice majority, reasoned that “[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.”

Following Hodari D., a circuit split developed regarding when a seizure occurs. The split is particularly important in excessive force claims involving officer shootings. Both the Ninth Circuitand Arizona state courts have generally followed Hodari D., holding that “[a] seizure requires either the use of physical force by the police or submission to the assertion of authority.” 

A central issue in Torres v. Madrid is whether the definition of seizure in Hodari D. is dicta, and thus nonbinding as precedent. Justices Kagan and Sotomayor indicated their support for following the Court’s precedent, agreeing that the Hodari Court’s definition of “seizure” clearly encompasses the shooting in Torres. Justice Breyer noted that “we need a line that’s somewhat bigger than the one [the officers] propose,” indicating his support for the line drawn in Hodari D. (which he stated was “as good a line as any”). Conversely, Justices Gorsuch, Alito, and Thomas suggested, through their questioning, that the Hodari D. definition of “seizure” was dicta, and thus nonbinding. Alito asked if a seizure occurs when a “baseball pitcher intentionally beans the batter,” and Thomas asked about a person hit by a snowball, appearing to suggest that being shot in the torso is similarly unrestrictive. Such hypotheticals seem to ignore that Torres was not only hit, but temporarily paralyzed.

The conservative justices’ positions are particularly interesting given that Hodari D. is an originalist opinion authored by Justice Scalia. Its reasoning primarily relies on the dictionary definition of “seizure” over time and the historical common law understanding of the term. Justice Kavanaugh remarked that the police officers were arguing, “as I understand it, that Justice Scalia and really all nine justices in [Hodari D.] were wrong about the original meaning of the Fourth Amendment.” Justice Sotomayor noted that Scalia was an “advocate of the common law” and “quite well informed about it generally.”

LOOKING FORWARD 

The issue presented in Torres is of national significance. Police brutality in the United States is a public health crisis. Claims of excessive police force are treated as seizures subject to the Fourth Amendment’s reasonableness requirement. A broader definition would allow for greater judicial scrutiny of police shootings. In contrast, if “seizure” is more narrowly defined, an individual who is shot by the police but evades capture cannot bring a suit questioning the reasonableness of the shooting. The officers’ proposed rule, as Justice Breyer emphasized in oral argument, leaves “the [Fourth Amendment] right of the people to be secure in their persons” without much protection at all. The decision in Torres will also affect policing in Arizona because the Fourth Amendment applies to local law enforcement through the Due Process Clause.  

If the Supreme Court holds that no seizure occurs when an officer shoots but fails to subdue a suspect, they will insulate a broad category of grave police violence from all constitutional scrutiny. Flight from the police is especially common for those who have had bad interactions with police or who do not trust law enforcement, a category that includes many people of color. Thus, a narrow definition of “seizure” would disproportionately affect those already harmed by racist policing, who are (understandably) more likely to “flee.”

It is unclear how broadly the court will rule in Torres, and commentators are unsure on how the case will play out. Jeffrey Bellin from SCOTUSblog writes: “I count three votes for Torres and three for the officers, with the outcome hinging on the two remaining justices – Kavanaugh and Chief Justice John Roberts – who did not tip their hands.” A decision is expected before July 2021.

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By Jillian Knox.

J.D. Candidate, 2022

Jillian Knox is a Second Year law student and Staff Writer for the Arizona State Law Journal. She received her B.A. from Claremont McKenna College in Neuroscience. She is currently a member of the Philip C. Jessup International Moot Court Team and an extern for the Arizona Attorney General’s Civil Rights Section.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.