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."