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

Working through the doctrine.

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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.

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  1. “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”

    I didn’t really think that much about it at the time, but I was seized and illegally searched quite a few years ago.

    I was walking home from the poolhall about 9 or 10, with my pool cue in it’s case. When I got on my street I saw 2 or 3 cop cars at the end of my street, didn’t think too much of it, it was in the barrio in Santa Barbara, not particularly dangerous, but occasionally there were things going on. As I got a few doors from my house a youngish cop came towards me, pulled his gun on me and instructed me to put my pool cue case on the ground and open it slowly so he could see inside.

    I remember thinking what an idiot he was thinking a rifle could fit in a pool cue case, but maybe he had Day of the Jackel on Betamax at home. He didn’t even comment on the spectacular Birdseye Maple butt on the cue, although the light probably wasn’t that great.

    1. They were no doubt just trying to keep up with the TSA, which declared pool cues to be deadly weapons after they were successfully used to hijack several planes a couple of decades ago.

    2. Possibly illegal, but hard to say for sure without knowing why they stopped you. If 2 or 3 cop cars were there, they were looking for someone or something. Depending on how many years ago we’re talking about, my recollection is that the Santa Barbara barrio could be pretty funky at night. What they did might qualify as a stop and frisk, which only requires reasonable suspicion, not probable cause. In essence they were detaining you and patting you down for weapons; the chances that you would have one in the case were miniscule, but it doesn’t sound like they were looking for anything else.

  2. 1. “Perhaps it does, on the theory that the officer are trained that if they fire their weapon, they should shoot to kill. . . .”

    NO.

    Officers are NOT trained to shoot to kill.

    They are trained to shoot to stop the action (which I readily admit often leads to death), but again officers do NOT shoot to kill.

    2. I agree with the Torres decision.

    Any physical action (grabbing the tote bag, ramming the car, etc.), which is an attempt to apprehend a suspect must be included under seizure.

    And again, Torres did NOT address “reasonableness,” i.e. was the seizure reasonable.

    Torres only provides a more detailed definition of a seizure.

  3. Shooting someone is not trying to restrain?

    Bologna

    IT is the ultimate restraint

    1. The issue isn’t that officers weren’t trying to restrain the plaintiff. The issue is that trying to restrain someone isn’t the same as actually restraining them.

  4. I. In my mind 4 is simply a subset of 2. Physical force (“touching”) is one (of many) ways that a government official “makes a show of authority sufficient to make a reasonable person believe he was not free to leave.” A show of authority could be a loud voice (“Freeze I’m arresting you”), brandishing a gun (“I am seriously going to arrest you submit or else”), or physical force (“I warned you I was arresting you and I meant it”). It could simply be 5 officers surrounding you at a bus stop and keeping you there to ask questions.

    II. The novelty, as I read it, in Torres is the bit about “even if the force does not succeed in subduing the person.”
    Hmmm. If a person is in a locked room, or even a locked police car, and escapes, are they still seized after escape, even on the run?

    What if, on the other hand, under #2, there is a huge show of authority – say SWAT shows up randomly at your house without a warrant, and they yell over the bullhorn “come with us”, but you escape before a shot touches you (through a tunnel to the neighbors). They showed a lot of authority and threatened a lot physical force, but it was unsuccessful. Were you seized? They sure did attempt to violate your 4th amendment rights.

    In a lot of places in the law, attempting to do something (like attempted murder) carries the same penalty. So A) I would read Torres to simply formalize that rule as it applies to the 4th amendment and B) A similar rule likely applies to 2, and 3. i.e. if they attempt to seize you with “authority” or trick you into a locked room, they may have attempted to violate your rights, and even the attempt is actionable, same as lots of other places in the law.

    III. I do not think that #2, #3, are different, not really. The person was seized before being put in the room (unless they were tricked and the door locked behind them). The mode of seizure changes when they put them in a locked room. Unless they were tricked, something made them submit to going in. Either way, #3 is more like a bright line test that indicates the person was seized on or before being locked in a room.

    Also, if five officers surround you at a bus stop and start questioning you, restricting your movement to the small circle that they are enclosing, you are seized – your freedom of movement is restricted. They do not need to touch you or threaten physical force, but 5 officers surrounding you is enough of a show of authority to make most people submit.

    1. And of course under my theory, A,B,C are all attempted/i> seizures. And also under my theory, if rights were violated, an attempted seizure is almost treated the same as an actual seizure.

      That sounds like a correct common law rule to me.

    2. Wish I could edit posts.

      And of course under my theory, A,B,C are all attempted seizures. And also under my theory, if rights were violated, an attempted seizure is treated almost the same as an actual seizure.

      That sounds like a correct common law rule to me.

      1. Curious of your response to this:

        “We have consulted the common law to explain the meaning of seizure — and, contrary to the dissent’s portrayal, to expand, rather than contract, that meaning (since one would not normally think that the mere touching of a person would suffice). But neither usage nor common law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions.”

        California v. Hodari D., 499 U.S. 621 n.2 (1991)

  5. The police use a laser instead of a gun. Is a light beam (or electromagnetic beam) an “object”? Does it “touch”?

    1. If it affects the senses then I’d say yes.

      Does the laser or light beam burn, blind, or stun?

      If yes, then that’s physical.

    2. “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.”

      Does a laser beam count as “light touching”?

    3. In _Eichenwald v. Rivello_ (I think), a federal District Court said that an animated image that triggered a seizure could be considered assault because photons hit the plaintiff’s eye and that’s like hitting the plaintiff with a physical object. I think the reasoning was stupid, because showing any picture to any nonconsenting person would be assault, but the end result was correct under the peculiar circumstances of the case.

  6. This is what this blog could be.

    This deserves a song.

    (from a writer whose father fled the Nazis)

    1. Preach it. Instead, we get Josh’s incessant, intellectually juvenile postings.

      1. The Volokh Conspiracy is what its management wants it to be. Nothing more, nothing less, nothing better.

        1. Eugene has utterly failed his best contributors (e.g., Orin Kerr) and his audience in his management of this blog. And it is bleeding obvious. I can’t argue that the most likely explanation is that Eugene wants it this way. I assume views are up or something and that’s the only metric he is going by.

  7. The lawyer is stupid. The stupidest lawyers sit on the Supreme Court. All punishment is a procedure on the body. Criticism sets off adverse brain chemicals. A fine or a settlement is a seizure of payments for long labor.

    The stupidity of this Supreme Court is stunning.

    1. You sure do know a lot about stupidity.

  8. I think you’re drawing an unnecessary distinction between 3 and 4. And once you recognize that they are part of the same situation, the current Torres controversy seems to go away.

    Consider a scenario where the government terminates my freedom of movement by locking me in a room but I walk right back out. Maybe it was incompetence – they failed to maintain the locks on the door. Or maybe I have a superpower that let’s me walk through walls. Either way, they certainly intended to lock me in the room. And they clearly attempted to do so even if they did not succeed. Is there any scenario in which that would not be counted as an arrest and that my leaving would be characterized as anything other than an escape from custody?

    Your third category already included an element of intent. Your example involves putting me in a room with the intent that I stay. I am not “seized” merely because I got accidentally locked in a bathroom stall even if it was a cop who locked the door. Or maybe a cleaner example – I have not been seized merely because the elevator at City Hall jams. For another example, if police cars box me in on all sides, that’s an arrest – unless it’s a routine traffic jam that happens to be near the police station. Intent already matters in your #3.

    Once you acknowledge that intent matters in #3 but success doesn’t, I don’t see a significant difference between 3 and 4.

    1. Put differently, “attempted” seizure should be treated the same as seizure. Torres is about “attempted” seizure, I think its better to frame it that way and makes the rule clearer. And, I think that’s correct: There are lots of areas of law where the attempt is treated the same as the (successful) act itself. If the government “attempts” to violate your rights, the punishment should be the same as if they actually did.

      Of course, proving an “attempt” can be harder when the act is unsuccessful. If the police attempted to lock you in a room, or attempted to shoot it, seems cut and dry. If they surround you at a bus stop and then you escape, it could be very hard to prove attempted seizure.

      But that its harder to prove an unsuccessful attempt, that is no different than anything else.

  9. An officers shoots at and hits a person fleeting the scene of a violent assault. The suspect gets away. DNA analysis is done of blood droplets found at the scene of the shooting and a single contributor is assigned. DNA comparison shows a match to that of a recently released felon, and a reference sample from that person matches the DNA obtained from the sample at the scene.
    1. Should the DNA results be suppressed if the shooting is found to have been an excessive use of force? Is the blood considered “abandoned” per Greenwood and the rest of the abandonment cases?
    3. The shooting is a seizure per Torres. Is the standard to test for the lawfulness of the shooting “reasonable suspicion,” “probable cause.” or another reasonableness test?

    1. Fleeing, not fleeting, of course. It would have been fun I had instead mistyped “fleecing.” Too late to join the chorus asking for an edit button?

      Here it is in correct form with all the other errors removed.

      An officer shoots at and hits a person fleeing the scene of a violent assault. The suspect gets away. DNA analysis is done of blood droplets found at the scene of the shooting and a single contributor is assigned. DNA comparison shows a match to that of a recently released felon, and a reference sample from that person matches the DNA obtained from the sample at the scene.

      1. Should the DNA results be suppressed if the shooting is found to have been an excessive use of force?

      2. Is the blood considered “abandoned” per Greenwood and the rest of the abandonment cases?

      3. The shooting is a seizure per Torres. Is the standard to test for the lawfulness of the shooting “reasonable suspicion,” “probable cause,” or another reasonableness test?

  10. Yet Lech v. Jackson apparently isn’t a seizure. Presumably because the police didn’t have intent to meaningfully interfere with a possessory interest in the property?

  11. “ …officers with the New Mexico State Police, arrived at an Albuquerque apartment complex to execute an arrest warrant and approached petitioner Roxanne Torres, then standing near a Toyota FJ Cruiser. The officers attempted to speak with her as she got into the driver’s seat. Believing the officers to be carjackers, Torres hit the gas to escape. The officers fired their service pistols 13 times to stop Torres, striking her twice.”

    Presumably, the officers were not uniformed, and the concern may have been valid. As not yet arrested, Torres was not in custody, so do efforts to avoid arrest enable subsequent 4thA claims of seizure? Was this hot pursuit of a fleeing violent felon? Why were they shooting at her?

    As always, our rights are defined by dodgy people in shady situations…

    1. They were in tactical vests and were wearing police badges and patches, so still obviously police. She claimed it was too dark to tell though. The police said that Torres had just fled into the car on their arrival and then tried to leave; she said that she had been sleeping in the car. Police claim that she was speeding towards them; she clearly claims the opposite. She apparently fled to a hospital 75 miles away, which seems rather far in Albuquerque, so there’s quite a bit more going on than you’d get from your (selective) snippet.

      1. All true – and it’s important to note that at this point in the legal proceedings all of Torres’ claims are assumed to be true. That is because the police won in the lower court at the motion for summary judgement stage. Had the police let this go to a trial, Torres’ credibility would have been evaluated.

        So at this point, even though the police were in marked tactical vests, Torres’ claim that she did not know they were police must be accepted as fact.

        That said, the police claim that “she was speeding towards them” can be conclusively rejected. First, we don’t have to assume their version of events because they are the moving party. Second, it’s logically impossible to shoot someone in the back when they are speeding towards you. The forensic evidence of the shooting (which is in evidence at this point) contradicts that part of the police’s claim.

        1. You can buy those “Police” tactical vests on the internet. Fake cops are becoming a real problem — and it’s always fun when they stop a real cop..

        2. Yeah, this case was just about whether she can sue; determining the truth comes later.

          That said, it’s not logically impossible to shoot someone in the back when they are speeding towards you if they’re backing out of a parking lot. It isn’t the alleged case here but it is not “impossible”. It’s also possible to be hit in the back by a bullet that ricocheted.

        3. All true – and it’s important to note that at this point in the legal proceedings all of Torres’ claims are assumed to be true.

          She lost on summary judgment, not a motion to dismiss, so that’s not quite correct.

      2. Interesting bit of detail:
        “The officers observed Torres standing with another person near a Toyota FJ Cruiser in the parking lot of the complex. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant.”

        So why did they continue to approach and ultimately discharge their weapons?

        1. It’s not clear to me what the basis for that claim is. It’s not reflected in the district court or Tenth Circuit opinions, I don’t see it in the Supreme Court briefing, and the opening brief in the court appeals appears to claim the opposite (“The Defendants assumed that the occupant of the vehicle must be Ms. Kenyatta Jackson the person they were looking for.”)

  12. Thanks to Mr. Kerr for the clear outline! I don’t currently practice in this area, but consider your posts to be great CLE.

  13. “But was she “seized”? The Tenth Circuit said she was not, as she was never brought under police control.”

    But for the police bullets in her, and the medical practice of reporting all GSW to the police, she would never have been medflighted back for arrest. Hence she was seized as the direct consequence of those gunshots.

    I also disagree with the “only when bullet impacts” theory because (a) most cops shoot hollow points that stay inside the victim, and (b) the injury (or death) on a “through and through” doesn’t occur until *after* the bullet is downrange. It may not be long after, but there inherently is a passage of time.

    1. That’s both factually incorrect (she was transported because the first hospital wasn’t able to adequately treat her injuries, not so that the police could arrest her) and logically absurd—obviously she was seized when the police actually arrested her, but it doesn’t follow that she was seized as soon as the first but-for cause of that later arrest took place.

  14. What is the measure of damages if the constitutional violation is the seizure attempt rather than the injury?

  15. As a non-lawyer, I have to say, that was a fascinating post. More of this please.

  16. Maybe I’m missing something, but the dissent’s rationale would seem to be that the police could shoot you for any reason they want and as long as you can and do walk away there is no constitutional violation because there is no seizure. Does anyone have a different reading of what the dissent says?

  17. Can I just take a moment to point out how bonkers it is that we’re even having this conversation given the fact patter. Someone get shot at by the police and the only way they have to litigate possible damages is to make a 4th amendment claim?

    1. You know, you’re allowed to actually read these things before you comment. From the dissent:

      More than two years later, Ms. Torres sued the officers for damages in federal court under 42 U.S.C. § 1983. She alleged that they had violated the Fourth Amendment by unreasonably “seizing” her. After discovery, the officers moved for summary judgment. The district court granted the motion, and the court of appeals affirmed. Individuals like Ms. Torres are free to sue officers under New Mexico state law for assault or battery. They may also sue officers under the Fourteenth Amendment for conduct that “shocks the conscience.” But under longstanding circuit precedent, the courts explained, a Fourth Amendment “seizure” occurs only when the government obtains “physical control” over a person or object.

      Ms. Torres had ready-made claims for assault and battery under New Mexico law to test the officers’ actions. See N. M. Stat. Ann § 41–4–12 (2020). The only reason this case comes before us under § 1983 and the Fourth Amendment rather than before a New Mexico court under state tort law seems to be that Ms. Torres (or her lawyers) missed the State’s two-year statutory filing deadline. See Tr. of Oral Arg. 16–17; Brief for Respondents 20, n. 4.

  18. The remarkable thing about this case, aside from citation to the second most important case named for a Countess of Rutland, is the commentariat’s analysis under some sort of a forward-progress-to-the-goal-line theory of arrest. The gist of the holding is that a person has been seized when shot, tackled, or grasped politely on the shoulder, regardless of whether they then escape that intentional act of physical restraint.

    Consent (or submission) is not an element of arrest. Arrest is the opposite of consensual encounter; one doesn’t freely agree, for the greater good, to stroll over to the Midtown South precinct for a chat with some coffee in a styrofoam cup.

    Mr. D.

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