Sotomayor Invokes Scalia on Fourth Amendment Protections

Does the Fourth Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure?


Does the Fourth Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure? The late Supreme Court Justice Antonin Scalia thought it did. "The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," Scalia wrote for a unanimous Court in the 1991 case California v. Hodari D., qualifies as a seizure for Fourth Amendment purposes.

In October, the Supreme Court heard oral arguments in Torres v. Madrid, which challenges that ruling. The U.S. Court of Appeals for the 10th Circuit held that no seizure occurred when New Mexico state police shot Roxanne Torres, because their bullets did not actually stop her from getting away. "An officer's intentional shooting of a suspect does not effect a seizure," the appeals court said in 2019, unless the gunshot terminates the suspect's movement "or otherwise cause[s] the government to have physical control over him."

Torres was sitting inside her car in her apartment building's parking lot. The officers, who were wearing dark tactical vests with police markings, were parked nearby in an unmarked car. They were there to arrest somebody else. The officers claimed they approached Torres because she was acting suspiciously. Torres, who said she thought she was about to be carjacked, testified that the officers never identified themselves as they crowded her vehicle. Fearing for her safety, she drove away. The officers shot her twice as she fled. She learned it was the police who pulled the trigger only when she was arrested a day later at the hospital.

"Roxanne Torres was not seized," Mark Standridge, a lawyer representing the police, told the justices during oral argument. "At no time did the officers acquire possession, custody, or control over her. Indeed, [Torres] never stopped in response to the police action. As the officers did not seize [Torres], they cannot be held liable to her for excessive force in violation of the Fourth Amendment."

Justice Sonia Sotomayor did not buy it. "Counsel, there is an element to the Fourth Amendment that all of our cases, including Hodari, recognized," she said, "that has to do with the Fourth Amendment's protection of bodily integrity." That element includes "the seizure of the person with respect to the touching of that person, because even a touch stops you. It may be for a split second, but it impedes your…movement and offends your integrity." What you are asking the Court to do, Sotomayor told Standridge, is "reject the clear line drawn by Hodari and say that Justice Scalia was wrong about what the common law showed."

NEXT: Brickbat: Chains of Love

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The Fourth Amendment begins, “The right of the people to be secure in their persons…”. If you shoot someone, they are not secure in their person. To say that this is only a violation if she stops is ludicrous.

    1. Amen…unbelievable that they would argue that because they missed it was ok…their behavior, not the outcome, determines the legality.

      1. They didn’t even miss, which is why she was arrested in a hospital. They merely didn’t drop her.

        1. “They merely didn’t drop her.”

          Which was the real crime here.

          1. Yeah, somebody had to requalify at the range.

    2. If by ludicrous you mean “learned legal arguments”, then yes.

    3. Yeah, they obviously “seized” whatever parts of her body those bullets struck. Also whatever parts of her car they passed through.

      This is one of those cases that show how terrifyingly deferential to power many lower courts are. The 10th Circuit Appeals court needs to have its hand slapped hard.

  2. Ehhh… idk about this being a 4th amendment issue. This sounds like excessive and irresponsible use of force. Maybe I’m missing 4A context here (it isn’t one I know the wording of too well.)
    Too much context missing and the framing is explicitly against the police. What was she arrested for? A spurious charge seems to be more of a 4A violation to me. What sort of an exchange occurred between her and officers?
    These details are thin on both accounts. The police side’s account is almost exclusively limited to a denial of a specific charge framed in a way to make the reader assume the defense is absurd.
    Even from the limited details presented, I believe the police are in the wrong here and charges should be brought. It is unfortunate that Root has such a habit of cherry-picking details to support the victim. I’m ready to be on the same side, but the omissions make it difficult to trust the overview of the situation

    1. It’s not clear why she was arrested, but: “Torres pleaded no contest in March 2015 to counts of fleeing a law enforcement officer, assault on an officer and unlawful taking of a motor vehicle in connection with the incident, according to online court records.”

      That suggests she was arrested for trying to flee what she saw as a carjacking attempt, which was actually an attempted arrest on suspicion of being suspicious.

      1. Sounds like her crime was not being a criminal.

        1. Well, there was that guy who got 49 shots because he had no drugs to give the undercover police (who were looking for a rapist or something).

          1. So the moral was, always carry something illegal you can hand to undercover or uniformed police if they ask for it…except a gun, because you can’t show or disclose that.

        2. No one is a criminal until convicted, even if caught in the act.
          Police are not technically (legally) executioners, but the doctrine of qualified immunity gives them permission to murder. The POTUS was given even more permissions by the NDAA. The POTUS can designate anyone a terrorist, order a clandestine kidnapping, torture, and murder. Or, just order a “hit”. It’s happened. Courts ruled this as “due process”, without explaining. How can no process be due process? Soon, that question may be too dangerous to ask. Welcome to The American Empire, show your papers citizen!

      2. And the guilty plea is emblematic of everything that is wrong with the criminal justice system.

        The prosecutors knew the story. And yet they pressed ahead, determined to get that guilty plea – like as not in order to queer any attempt at a civil suit by her against the department. As we all know, these guilty pleas are always earned under threat of much greater consequences if you insist on justice.

      3. Also, something is amiss in the story.

        Our summary says she was sitting in her car.

        The charges say she was guilty of unlawful taking of a motor vehicle.

        There’s a contradiction in those two sentences.

        1. She was sitting in it while driving away from the police; The car she was charged with unlawfully taking was her own; She was unlawfully taking it away from policy who told her to stop.

          Yeah, kind of a crazy charge, that, but we live under a legal system where you can sue property, so it’s not the craziest thing to happen in a court.

        2. Ah, but she didn’t know it was her car…oh, wait, must’ve phrased that wrong…help me out here. I got it: Her car didn’t know she was her owner.

        3. The police told her to stop, therefore putting her and the car under their jurisdiction, whence she illegally took it.

          The tricky part is explaining how it was illegal to take the car during a stop but not legal to sue for Fourth Amendment violations because it wasn’t a stop.

    2. They forced her to go to the hospital where they eventually effected the arrest. It was not immediate but shooting her was part of that process

  3. The Fourth Amendment right to be free from unreasonable seizures clearly includes the right to be free from an failed attempts to perpetrate an unreasonable attempted seizure. The argument against it is ludicrous.

    Consider not charging a bank robber because they failed to steal any money because the security guard tackled them before they left the building. Following the argument, the bank robber would need to leave the building to be charged.

  4. This report is so typically Reason, in terms of omitted detail. It’s reaching the point that, whenever Reason reports something, I just assume there were crucial details left out.

    <a href=";Facts of the case

    “In 2014, Roxanne Torres was involved in an incident with police officers in which she was operating a vehicle under the influence of methamphetamine and in the process of trying to get away, endangered the two officers pursuing her. In the process, one of the officers shot and injured her. Torres pleaded no contest to three crimes: (1) aggravated fleeing from a law enforcement officer, (2) assault on a police officer, and (3) unlawfully taking a motor vehicle.”

    Right, she thought she was about to be carjacked, being on drugs had nothing to do with her fleeing.

    This, of course, doesn’t change that the government’s claim that the 4th amendment isn’t implicated if police tell you to stop and then shoot you as you flee is absurd. But Reason ALWAYS omits details to make the defendant more sympathetic, and the police seem less reasonable. ALWAYS.

    1. Really? You are asking reason to do actual journalism?
      Next thing we know you will want the pictures to be related to the article.

    2. I wish Reason and all their apologists realized that when you aren’t completely honest in reporting on issues of liberty, you’re actually discrediting your cause.

    3. |Right, she thought she was about to be carjacked, being on drugs had nothing to do with her fleeing.

      Right, the fine, upstanding cops in tactical gear who snuck up on her instead of walking up from in front of the car, where she could see them, almost certainly have no reason to lie about why she was in the car.

      Or is there actual evidence she was sitting in the car using meth?

      For that matter, even if she WAS sitting in the car smoking meth and reading banned books or even littering, why didn’t the police either:
      a) ignore her and execute the no-knock raid they had planned for the evening, or
      b) approach her openly and ask her what the hell she was doing?

      1. All good questions to ask. By the author. Before he published this article that leaves out important information.

        The point isn’t that the cops were right or wrong, but that the author left out important details because they appear to conflict with the narrative of the article.

        1. I heard she was drinking water too. WHY DID THE REPORTER LEAVE OUT THIS IMPORTANT INFORMATION.

          1. Because her drinking water didn’t appear in any court documents about this case, which were easily accessible to anybody who could be bothered to take the time and look for them…?

            It’s likely that the police DID use excessive force in this case. However, when Reason leaves out relevant details (such as allegations that her actions on the scene endangered the officers who then shot her), it makes people who who are open-minded wonder what else the writer is failing to mention in an attempt to create a biased narrative rather than tell as complete a story as possible, even if the full story shows that the victim might not be entirely innocent, or that the police may have been motivated by something other than an urge to shoot a random person.

          2. Methamphetamine and water are similar.

            1. They are if they didn’t know she was on meth.

              1. “if”

                Sure. Which again we don’t have any idea about because the author left it out of the article completely.

                1. The fact that the didn’t charge her with DUI or possession suggests that they didn’t know she was on meth.
                  And I don’t think it’s really relevant to the question here anyway. Her behavior or intentions have no bearing on whether attempting to stop someone by shooting at them counts as a seizure.

                  1. I agree it’s odd that they didn’t charge her with possession. But it still just “suggests”. And Brett’s quote suggests, just as much IMO, that her reaction to the situation was influenced by her being intoxicated from meth, and she freaked out and almost ran over some cops.

                    If there’s other information that contradicts that her being on meth played a role, include that as well, and let us decide. But if one of the subjects of an article was intoxicated on meth, that should be included, without it meaning that the cops still should have shot her.

    4. The key phrase is pleaded no contest to … assault on a police officer

      What was this? Was she driving the car towards the cops before they shot at her? Did she swing at them after she was informed they were cops?

      Depending on the totality of the circumstances (remember that?) this could have been triggered by the stop (or potential car-jacking), or it could have been a legitimate offense.

    5. Why wasn’t she charged with DUI?

    6. To accept the police report as “details” without evidence is to grant authorities powers they don’t legally have, but in practice enjoy. This is tyranny. It is “all men are equal under the law, except LEOs”.
      Even so, orders from LEOs on a fishing expedition (suspicious looking person), if disobeyed for any reason, even not knowing LEOs are ordering, doesn’t excuse shooting to kill. In a totalitarian society, it is common and that explains why LEOs get away with murder. The majority pretend it doesn’t happen, believing the “perps” with badges in court so they may keep their illusion of a “free country”.

  5. “Acting suspiciously”. The catch all that let’s cops trample your rights and murder you. And a completely made up accusation.

    1. When the police have that “gut feeling” that something is illegal, bad things tend to happen.

    2. The word you are looking for is furtive.

      1. That is the magic word that lets them shoot people. Suspiciously is the magic word that lets them rifle through your belongings and detain you while they come up with something better.

    3. Such as delivering newspapers at 5 AM, and leaving your lights off so you don’t wake people up, when someone the cops are after was last seen driving a vehicle that was sorta kinda similar.

  6. This it right in line with sideshow Bob “I’m only in jail for attempted murder, they don’t give out Nobel prizes for attempted physics”

    (note they do give out Nobel peace prizes for attempted virtue signaling now)

  7. The police shot her, and it comes to A FUCKING 4TH AMENDMENT CASE??!

    Well, at least it’s better than most 4th amendment jurisprudence, where the only remedy for an unreasonable seizure is suppression of evidence of a crime, so you can get the protection only if you commit a crime. But geez, you get shot, and this is your only remedy? At least it didn’t come to a defense against their demanding the bullet back.

    1. Close, they essentially charged her with stealing her own car, on the basis that she shouldn’t have driven away in it.

      1. So even if she wins, she gets nothing but to keep her car? What does the 4th amendment have to do with it? Is it to suppress the evidence that she drove away? But shooting her came after she drove away, didn’t it? What does anything have to do with anything here?

        1. a real judge would order her record expunged and all civil rights restored. then issue an arrest warrant for the cops who shot her.

      2. and assaulting the cops who assaulted her with deadly weapons

  8. Must be hand cuffs graphic theme day.

  9. “America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere”.

    Ronald Reagan

    Ummm yeah, right.

    1. Once upon a time this was much closer to being true as shown by the millions of people who have come here seeking freedom. It’s definitely in decline, and both parties have contributed to that decline. Biden is hastening that decline.

  10. So by that logic successfully resisting arrest means you can’t later be charged with resisting arrest?

    1. Somehow I think the police lawyers would object to that take on things.

  11. Haha her inertia was impeded, stopped, interrupted and seized by being forced to flee.

  12. I’m not sure why we have to go with “seizure” instead of the other rights not to be assaulted and nearly killed.

    But more than that – why is the grabbing and holding the point of contention. If a random dude pulled a gun and told her to let him in the car with her, he’d be charged with attempted kidnapping (among other things) if she just screamed and drove off. He wouldn’t get a “well, I never took possession of her” pass.

    The entire discussion is weird.

    1. Right. It seems like this is a discussion of apples that is only concerned with varieties of oranges. Sell me on the idea that it was a wrongful arrest at the hospital after being treated for getting a cop’s bullet. That’s 4th amendment. I’m already under the impression that they used excessive force and should probably be charged for it. At issue is a disconnected argument that leaves me seeking more information to clarify

      1. Maybe this is one of those things that makes sense only to a lawyer.

  13. How about reckless endangerment, assault with a deadly weapon, and attempted murder? Because those things actually did happen.

  14. Convention of States
    There is a growing number of people getting involved in the movement to reduce the power of government and return the US to the free society our Founders envisioned. This is a chance to actually do something instead of talking about it. Do a search and read about it and decide.

  15. The scandal here is that a federal court of appeals not only did not laugh it out of court, but actually sided with the State here. Despite an on-point, unanimous Supreme Court decision.

    SCOTUS needs to give a harsh rebuke here. But they won’t.

    1. CONGRESS, POTUS, SCOTUS, are all part of the same gang. They may engage in internal power struggles, but they stick together against their willing victims, the majority of citizens.
      Expecting justice from those who live by forcing (ruling) is delusional.

  16. The only govt. created by sovereigns, to protect sovereigns, was granted a monopoly on force to achieve its mandate. The means of force, not reason, makes the govt. sovereign while subverting the sovereign citizen. Both cannot exist. And that’s why the American Empire is crumbling. A social/political contradiction is unstable.

  17. “Does the Fourth Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure?”

    To the extent the attempt is perceived AND perceived as a threat, then the answer is yes.

    Unseen failed attempts are not covered

Please to post comments

Comments are closed.