Supreme Court Holds Shooting a Fleeing Suspect is a “Seizure”

The U.S. Supreme Court held today that a police officer “seizes” a fleeing suspect, within the meaning of the Fourth Amendment, by shooting her, even if the officer never gains actual control and the suspect escapes.

The Court split 5-3* in the case of Torres v. Madrid, No. 19-292.

The opinion of the Court by Chief Justice Roberts applied the common law definition of when a person has been “arrested” to the Fourth Amendment question of when the protection against unreasonable seizures comes into play when the claimed seizure is of the person. The status of arrest had a variety of legal consequences, including liability of the officer for escape or a tort suit for false imprisonment.

At common law, the mere touching of a person with intent to restrain was an arrest. The Supreme Court stated that the common law “arrest” was the quintessential Fourth Amendment “seizure” of the person thirty years ago in California v. Hodari D. In that case, CJLF filed an amicus brief supporting the proposition that there was no seizure in the case of a foot pursuit accompanied by an unobeyed command to stop. In Hodari D., the officer chased the suspect but had not yet caught him or touched him, personally or remotely, at the time of the alleged seizure. The Hodari Court held that this was not a seizure, as there was neither actual control nor submission to a command to stop. The Court also noted the common law “mere touch” rule. If Hodari D. is accepted in full, the only distinction here could be that a remote “touching” via a bullet was somehow different from the common law laying on of hands. There are no common law cases of arrest by shooting because officers did not generally carry firearms in those days.

Justice Gorsuch dissented, joined by Justices Thomas and Alito. The dissent begins colorfully:

The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.

According to the dissent, Hodari‘s statement of the “mere touch” common law rule was obiter dictum, a comment made in the course of the discussion, not necessary to the holding and not binding as precedent.

The dissent finds it odd that “seizure” could require actual control in the case of objects but just a “mere touch” in the case of persons. It is odd, but the common law did treat seizures of persons differently from seizures of property, and not just in the debt collection cases that the dissent emphasizes.

The case does not end here. The primary defense of Officers Madrid and Williamson is that their use of force was reasonable, or at least that the case is close enough to bring them within the protection of qualified immunity. The Tenth Circuit did not decide that question because it found no seizure, so the case goes back for that inquiry. I expect that the officers will prevail on qualified immunity.

* Justice Barrett was not yet a member of the Court at the time of argument and did not participate in the decision.