The Role of Originalism in Torres v. Madrid

Some preliminary thoughts on a fascinating case.


In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure."  The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her.  The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away.  Was the shooting that injured her a Fourth Amendment "seizure"?

In this post, I want to discuss a really interesting question that I see underlying Torres:  To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?

I.  Concept One Way, Consequences the Other

Before I get to the common law rules, I want to point out that there are lots of ways of resolving Torres without reference to the common law rules.  When I first heard about the Torres case, my thoughts were drawn to two other issues; the concept of seizures and the practical implications of how to interpret it in this setting.  Because I suspect many readers will focus on these arguments, I thought I would flag them and say how I think they may cut.

On one hand, the usual concept of a Fourth Amendment seizure would point to the answer being that no seizure occurred. In modern Fourth Amendment law, a seizure is ordinarily a taking of control of an item.  An officer does not take control of a person when he shoots a person but she does not stop.  So you might say, as the court below did, that a shooting without a taking control is not a seizure.

On the other hand, a pragmatist might say that whether a person is seized in this kind of situation will come up mostly in excessive force actions permitted by modern Supreme Court caselaw.  If we rely on Fourth Amendment law for a sensible excessive force doctrine, it would make sense to call any shooting of a person a seizure. That way it can allow civil suits in federal court based on it. So you might say, as some amicus briefs filed in Torres say, that a shooting without a taking control should be a seizure for those practical reasons.

So far this is pretty interesting. The concept of seizures seems to point one way, and the practical consequences seem to point the other way.  It's the kind of tension that makes for an interesting case.

II.  Enter the Originalist Syllogism

But what makes Torres a really fascinating case, I think, is the role of originalism in settling the dispute.  So now let's turn to the common law rules that are the focus of a lot of the briefing so far in the case.  The brief of the petitioner, plaintiff Roxanne Torres, relies heavily on the following originalist syllogism:

(1) at the time of the Fourth Amendment's enactment, it was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them;

(2) an arrest is a type of Fourth Amendment seizure; and therefore,

(3) it is a seizure for the government to apply physical force to a person in an unsuccessful effort to detain them.

This is a really interesting syllogism, I think, because it seems right in some ways but questionable in others.

On one hand, it's true that at the time of the Fourth Amendment's enactment, it generally was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them.   On the other hand, there's a twist here.  Although the briefs filed so far don't flag this, my sense is that the common law context in which courts defined arrest in this way is quite different from the context today.

And that differences raises a really fun legal question for the originalist-inclined: When a concept was defined at common law in a specific context that is different from the context in which it arises today, should you apply the common law definition?  Or does the different context suggest a need for a different definition?

III.  The Forgotten Context of the Arrest Cases

In modern Fourth Amendment law, defining an arrest typically matters to determine if sufficient causes existed to make the act legal. An arrest requires probable cause.  You need to know when an arrest occurred because you need to know if the government had sufficient cause to satisfy the Fourth Amendment.

But the definition of arrest arose at common law in a very different context. Here's my tentative sense of the history, which I'll be happy to correct later if it turns out I misunderstood things:

The world of arrests at common law was dramatically different from what it looks like today.  There were no professional police officers.  Arrests could be made by private parties or else by part-time officials—most often constables, but also sheriffs and watchmen —  who were supposed to make  arrests and bring arrestees to the local justice of the peace. Most arrests were made by a warrant ordering the constable or other official to make the arrest.  The warrant was a court order commanding that the constable or other official make the arrest and bring the prisoner to the judge.

But there was a problem. The part-time officials such as constables (and I'll just call them all constables for the sake of brevity) didn't have much interest in making arrests and detaining people after the arrest.  It was dangerous and time-consuming work, and they in general weren't paid for it.  Who wants to risk getting hurt arresting someone and forcibly bringing him to the local judge?   There's not nothing in it for the constable.  So part of the law regulating constables at common law was about forcing the constables to do their jobs—to make arrests and to detain prisoners—or else face civil suits or criminal punishment.

The law regulating constables had two features relevant here.  First, the constable was required to at least try to execute the warrant.  A constable who declined to do it could be charged with a crime or sued for neglect of duty.

And second, a constable who made an arrest but then let the prisoner go could be charged with the crime of escape (see 590-95) or sued in tort under the tort of escape. A constable was liable for escape when he made an arrest but then the prisoner went free, either because the constable intentionally let the prisoner go (called "voluntary escape") or  the prisoner escaped despite the constable's efforts to detain him (called "negligent escape").

The law of negligent escape was pretty tough on constables.  As one treatise summarized, "the only excuse" for not holding on to a prisoner was an "act of God or the public enemy"—in other words, crazy unforeseeable situations.  It sounds to me less like a negligence standard than strict liability.

To modern ears this all seems exceedingly weird.  A modern crime of escape exists, but it punishes the prisoner who escaped from custody.  As I read the history, though, the common law regulation of escape was different. It punished the constable who made the arrest but then either negligently or intentionally let the prisoner escape.

IV. Unsuccessful Uses of Physical Force Then and Now

Why does this matter?  Well, maybe it doesn't. But it might matter, I think, because it means that the common law caselaw on the meaning of "arrests" arose in a very different context than we know today. The elements of escape required that an arrest had occurred first.  As a result, courts typically defined what was an "arrest" when saying whether a constable was liable for escape.

This context is interesting, I think, because the practical consequence of defining arrest in that era would seem to be really different than the practical consequence of defining a seizure today.  When courts defined arrests at common law, they were trying to figure out when a constable was sufficiently in charge of a person such that the constable was then subject to legal action for letting the person escape.

This could matter, I think, because in that setting it would have made no sense to require that the constable actually get the person to submit to the officer before saying an arrest had occurred. The underlying tort and crime was not doing a sufficient job keeping a person detained.  A constable who announced an arrest and actually laid his hands on the person to be arrested, but then couldn't bring the person into a quasi-permanent detention, was guilty of the exact same thing as the underlying cause of action—letting the person go.  It would make sense to treat those the same way.

Indeed, if I understand the context correctly, it's hard to imagine a different common law rule.  If the common law had required actual submission before the law of escape applied, then civil and criminal liability would hinge on a metaphysical question: Was there a non-zero amount of time when the constable had control of the person to be arrested?

Consider an example.  Imagine a constable has a warrant ordering him to arrest John Smith.  The constable walks up to John Smith, announces Smith's arrest, and physically grabs Smith.  Smith resists, breaks free, and runs away.  Unless the rule were that these facts amounted to an arrest, the constable would not be liable for escape if the person had not been controlled for any time but would be liable if the person had been controlled even for a hundredth of a  second.  But in a melee between the constable and the arrestee, how could you possibly distinguish these two cases?

The more obvious place to draw the line in that common law doctrinal context would be that any touching (when the arrest was announced, at least) was enough to say there was an arrest. That way it didn't matter whether the constable had grabbed Smith and Smith instantly broke free or the constable grabbed Smith and held him for a fraction of a second or thirty seconds or thirty minutes.  They would all be treated together, sensibly, as an escape that followed an arrest.

V.  Does This Matter For Torres?

To me this all raises an interesting question: Does the different context between an "arrest" at common law and an arrest today mean that the common law definition should be looked at more skeptically for possible application today?  Or do we say that an arrest is an arrest, and that the same definition should apply?  To what extent does the different context call for a different rule?

I think there is at least some precedent in the Fourth Amendment excessive force context for saying that the context of old rules means that they should no longer apply uncritically today. That was the reasoning of the Court in Tennessee v. Garner when the Court rejected the common law feeling-felon rule for the reasonableness of stops.   But assuming that was right in Garner, whether that same thinking should lead to similar skepticism of the common law definition of arrests is another question.

Anyway, I don't personally have a view of what the right answer is here.  And it's possible that none of this will get flagged in the briefs or be something the Justices decide to take on. But I think it's a really interesting set of questions.

NEXT: A Proposal for a New Federal Clerkship Hiring Plan (When The Current One Collapses)

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  1. Correct me if I’m wrong, but this seems pretty settled by Supreme Court precent (in California v. Hodari D):
    “The 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.”

    The fundamental question really is whether shooting at someone constitutes an “application of physical force to restrain movement.”

    1. I don’t think that’s right.

  2. I’m not sure the two contexts are really all that different. It seems to me that both ask a similar question: was the constable sufficiently in charge of the arrestee to become liable for bungling the arrest?

    It’s true that the kinds of bungling involved are different. The common law context involved letting the arrestee escape, while the modern one involves violating the arrestee’s right. But the question asked in both contexts — did the constable become sufficiently “in charge of” the arrestee to become liable for unlawful conduct incident to the arrest — seems similar enough that it seems to me the decisional rules from one context may well be relevant. At the end of the day, one person becoming “in charge of” another seems a reasonable interpretation of what a “seizure” is.

  3. The 4th Amendment does not provide a “right not to be unreasonably seized” – which would indeed bring in all sorts of questions about unsuccessful seizures – but a right to be “to be secure against….unreasonable seizure”

    These two expressions do not mean the same thing. The first refers to an event, the second to a habitual state. 4A promises security against unreasonable seizure. It is hard to square the idea of security with being shot and injured during an attempt to seize you.

    1. I think your use of ellipses is leading you to misread the text, as argued here:

      1. Thanks for that. I am in full agreement with your analysis of the text that 4A is guaranteeing not a warm sense of general security but security against particular things. But I think my ellipsis
        “to be secure against….unreasonable seizure”
        is entirely consistent with that analysis.

        Your example of security against mismarking in law school exams however is colored by law school exams being particular events. A student can only be secure from mismarking in law school exams when those exams are being marked. By contrast being secure from unreasonable seizure is a habitual state. Seizure, unlike law school exams, could strike at any time. I do not think one could reasonably be said to be secure from unreasonable seizure if at any time the cops could be shooting at you, hitting you but not actually managing to seize you, solely because of their incompetence.

        By I don’t entirely hang my hat on the habitualness of being secure from unreasonable seizure. Even in the case of your law school exams, if the promise is that your exams will not result in an unfair mark, and your paper gets you 66 / 100 and that is exactly what it’s worth, you have received what you were promised.

        But suppose a biased professor, who dislikes you actually grades your paper, unfairly, at 20 / 100, but because of a computer input error, your official score comes out at 66 / 100. Have you received what you were promised ? Yes you have, you got a fair mark.

        But what if the promise was that you would be “secure from unfair marking” ? Has that promise been met ? I would say not. You were very unfairly marked, and the fact that you finished up with a fair mark is just dumb luck.

        Or let’s take it up a notch. The computer coughs up the 22 / 100 mark. You take your paper to a review hearing to challenge the mark. After putting in 100 hours of preparation, and three months later, you win your review and get 66 / 100. Yay !

        Did you under the first promise get a fair mark ? Yes you did, eventually.

        Under the second promise, were you secure from unfair marking ?

  4. Your description of a constable’s responsibility in originalist common law to maintain control of an arrestee or face the legal consequences reminds me of Army basic training 69 years ago. I was instructed to guard a couple of prisoners on garbage detail. The sergeant, whose word, of course, was law, informed me that if I let either or both escape, I would finish their sentences.

    I know very little of the UCMJ, current practice, or, for that matter, practice at the time, but your article brings to mind the diligence with which I carried out the sergeant’s order. The prisoners were visibly concerned.

  5. Feeling-felon? The common law was more inclusive than I realized.

  6. “Imagine a constable has a warrant ordering him to arrest John Smith. The constable walks up to John Smith, announces Smith’s arrest, and physically grabs Smith.”

    Is that how an olde timey constable would really go about trying to arrest someone? Or would they first subdue Smith, then announce his arrest, as seems to be more common today? In the latter case, it seems like the metaphysical concern about control evaporates because the constable determines when he has enough control to arrest the suspect.

  7. The government made an argument that a set of specific conditions constituted an “arrest”. This argument was litigated and the government prevailed.

    Now the government finds this position inconvenient. There has been no intervening legislative change in the underlying legal definition of “arrest”. It seems to me that the government is collaterally estopped from changing its position.

    Which is to say that they made their choice and now they get to live with the consequences.

    And if they don’t like that, they can petition the legislature for a change in the law.

  8. Just want to that Prof Kerr, I really enjoy these history lessons and had no inkling of the prior state of affairs.

    This is a funny case, as while it may seem like it’s the same 1st and 2nd Amendment problem (the definition of words changed because of changes in technology, and how those two amendment are treated in completely opposite ways), it’s not even that. It’s a case where the definition seems to have stayed the same, but the context of its use has diverged such that it’s meaning in context is different, even if it’s meaning in a general sense is the same.

    Having only spent a few minutes thinking on this from a moral philosophy perspective, I’m in agreement: original meaning should be less persuasive than usual, because all of the circumstances under which the common law at the time developed have been upended. However, I still think there’s a model that can be used (even though it’s inherently fuzzy): if this happened at the founding and only under common law, what would the outcome be? Was that something codified by one of the amendments, even implicitly? This model isn’t always useful, but it’s a good start and can often entirely resolve cases.

    P.S. more like this, as you see them, please.

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