What is a Fourth Amendment "Seizure" After Torres v. Madrid?

Working through the doctrine.

The Supreme Court has handed down a new Fourth Amendment case, Torres v. Madrid, ruling that "the application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person."  I thought it might be useful to get a sense of how far the new case goes, and how Fourth Amendment "seizure" doctrine might now look.

I.  Prior Definitions of Fourth Amendment Seizures

First, some context.  Although the law of Fourth Amendment "searches" gets tons of attention, the law of Fourth Amendment "seizures" has traditionally been passed over because it has been pretty simple to understand.  The basic idea of a Fourth Amendment seizure, I have explained, has been a government taking of control.  This plays out somewhat differently for seizures of property and people because the government takes control of people and property differently.

Here's the blackletter law as I have understood it before Torres.  Let's start with property.  The government seizes property when it meaningfully interferes with the possessory interest in that property, a test offered in United States v. Jacobsen, 466 U.S. 109, 113 (1984).  Also, the acquisition of physical control must be intentional under Brower v. City of Inyo, 489 U.S. 593 (1989).

When it comes to a person, the seizure test is phrased differently.  A person is seized when a government agent, "by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied." See Brendlin v. California, 551 U.S. 249, 254 (2007) (cleaned up).  When a person responds to a show of authority, as opposed to physical force, the test is that a seizure occurs if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 255.

At first blush the property-seizure and person-seizure tests sound different, as one is about interfering with possession and the other is about restraining freedom of movement and what a reasonable person would think.  But I think they're really the same thing.  The government takes control of property by taking possession of it (as having possession, in the law, is just having knowing control). The government takes control of a person by either restraining them through physical force or by making a show of force sufficient to make a reasonable person think they can't leave. Either way, it's all about control.

II.  The Framework After Torres

Torres involves a seizure claim from a woman who was shot by police while driving away from them. She was injured but kept driving, escaping, and therefore she did not come under police control.  She brought a civil action against the officers claiming that she was shot in violation of her Fourth Amendment rights.  But was she "seized"?  The Tenth Circuit said she was not, as she was never brought under police control.

Torres resolves uncertainty from dicta in a prior case, California v. Hodari D., 499 U.S. 621 (1991), about whether there was a different approach for applications of physical force to a person.  In particular, Hodari D. suggested that there was a common law rule that an arrest occurred—constituting a Fourth Amendment seizure—when a person was actually touched in an effort to detain them even if they were not actually detained. That common law rule might be the correct interpretation of the Fourth Amendment.

Torres makes that dicta a holding, concluding that this indeed the common law rule and that is also the Fourth Amendment rule.  The vote was 5-3, with Chief Justice Roberts writing for the majority and Justice Gorsuch dissenting.

There's lots to say about the Torres case, but here I just want to focus on the post-Torres blackletter law.  As I understand the law now, there are three or four distinct kinds of seizures, depending on how you classify them.  Here I'll go with four different kinds:

1. A seizure of property, which happens when the government intentionally and meaningfully interferes with a possessory interest in that property (see Jacobsen and Brower).
2. A seizure of a person by a show of authority, which happens when the government makes a show of authority sufficient to make a reasonable person believe he was not free to leave and that leads to voluntary submission to the show of authority(see Brendlin and Hodari D.).
3. A seizure of a person by terminating freedom of movement, which happens when the government actually terminates a person's freedom of movement such as by locking a person in a room (see Brower and Scott v. Harris).
4. A seizure of a person by physical force, which happens when the government applies physical force to the body of a person with intent to restrain the person, even if the force does not succeed in subduing the person (see Torres).

The first three kinds of seizures are about taking control.  The fourth kind of seizure, a seizure of a person by physical force, is about touching with an intent to take control but does not require taking control.

What does Torres say about the requirement of "physical force"? If I am reading the opinion correctly, "physical force" includes both "laying hands" and "touching [the person] with an object," covering "methods of apprehension old and new."  A bullet shot from a gun counts as a touching with an object.  The seizure occurs only for the time of the touching, so in the case of a shooting the seizure will last only the instant the bullet strikes.  But it is still a touching using an object.

What about the "intent to restrain" requirement?  According to Torres, the question is whether the objective facts show a subjective purpose to apprehend the person. That is, what happened needs to establish that the officer was trying to restrain the individual.  (The Court leaves open that some other intents beyond intent to restrain may also satisfy the intent requirement, but it focuses on intent to restrain here.).  If the touching is a light touching, for example, that likely won't be enough to show actual intent to restrain and the act won't be a seizure.

III.  Three Hypotheticals

These distinctions make me think of some hypotheticals that test the line among these categories.   There may be answers to these questions, but they struck me as interesting questions on which reasonable people might disagree.  Here are three scenarios:

A. The officer is chasing after a suspect on foot who is carrying a bag in his hand.  The officer reaches out to stop the suspect but can only grab the bag, which easily slips out of the suspect's fingers.  The officer now has the bag, but the suspect never slows down and is not apprehended. 

The seizure of the bag is clearly a Type 1 seizure—that is, a seizure of property.  But was the suspect himself seized?  It can't be a Type 2 or Type 3 seizure of the suspect, as he never stopped.  But was this a Type 4 Torres seizure?  The officer had intent to restrain the person, but he only grabbed the bag.  Is grabbing the bag laying hands on the person or touching the person via an object (the bag)?  Does that objectively show intent to restrain, or does grabbing the bag only objectively show intent to seize the bag?

B.  An officer believes that a suspect in a car is armed and dangerous.  He sees the suspect reach into his jacket and pull out something that he thinks is a gun.   Believing that his life is in danger, the officer shoots the suspect in self-defense to prevent himself from being shot.  The suspect is shot and wounded, but he manages to drive away.  It turns out the suspect was not armed, but was just pulling out his cell phone.   

Was the suspect seized?  Clearly this is a Type 4 application of physical force to the body of a person.  But is there "intent to restrain"?  In the hypothetical, the officer was not trying to apprehend the person with the gun. He was not trying to bring the person into custody.  Rather, he was trying to stop the person from shooting him.  Does that count as "intent to restrain"?  Perhaps it does, on the theory that the officer are trained that if they fire their weapon, they should shoot to kill—and that if the person had been killed, the killing would have effectively restrained the person. But perhaps it doesn't, on the theory that the officer's goal was stopping the suspect from aiming a gun and shooting him, not stopping his movement.

C.  Officer tries to end a high-speed chase by running the suspect's car off the road by force.  The officer pushes his car's bumpers against the suspect's bumpers, running the car off the road where it crashes into a ditch.  The suspect immediately frees himself from the crashed car and continues to run, escaping on foot from the officer.  

Was there a seizure, of either the driver or the car or both?  I assume it was a Type 1 seizure of the suspect's car, as the officer interfered with the suspect's control of it. But was there a seizure of the person?  Type 2 is clearly inapplicable.  But was there a brief Type 3 seizure, on the ground that there was a temporary stop of the car when it crashed?  Was there a Type 4 seizure?  On the Type 4 question, did pushing his bumper into the suspect's bumper that then led to the crash amount to application of physical force to the person using an object?  Or was was that not an application of physical force to the body, as it was instead an application of physical force to the car?

Interesting case.