Torres v. Madrid

Is an unsuccessful attempt to detain a suspect by use of physical force a “seizure” within the meaning of the Fourth Amendment, or must physical force be successful in detaining a suspect to constitute a “seizure”?

• Kelsi Brown Corkran, for the petitioner
• Mark D. Standridge, for the respondent
• Rebecca Taibleson, for the United States, as amicus curiae, supporting vacatur and remand

Two officers approached Torres’ car in the parking lot at night. When they tried to open her locked door, Torres, who claimed that she thought she was being carjacked, drove away. The police fired several bullets at her, hitting her in the back, but she managed to escape. Torres brought a claim for damages under 42 U.S.C. § 1983 alleging the police had used excessive force in violation of the Fourth Amendment. At the Supreme Court, the attorney for the police argued that the Fourth Amendment was not implicated, because the officers’ actions had not, in fact, resulted in the seizure of Torres. Torres’s attorney argued that a seizure occurred because the police intentionally applied physical force with the aim of restraining her, citing California v. Hodari D., where the Court had stated that “[t]he 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.” During oral argument, the justices focused on the formal and historical definition of seizure, asking, for instance, whether a seizure under the common law required physical restraint by an officer or whether, instead, being touched by a bullet, shot with the purpose to detain, was sufficient.

Before Tennessee v. Garner and Graham v. Connor, many lower courts analyzed excessive use of force cases under the Due Process Clause and asked whether the police action shocked the conscience. But those two Supreme Court cases, decided in the 1980s, definitively established that the focus should instead be on whether the use of force is an unreasonable seizure under the Fourth Amendment. If applied to all cases involving use of force, that stance could seriously limit constitutional regulation of police violence. In ordinary usage, at most one could say that the police in the Torres case attempted to “seize” Torres. Further, even the petitioner’s formulation would not apply if the police had shot at Torres and missed. Nor would it necessarily apply if police used force after a seizure has occurred—that is, after a person has been detained and the use of force no longer results in any restraint because the suspect is already restrained; for instance, a beating following an arrest might not be governed by the Fourth Amendment.

Thus, if the Constitution is to have anything to say in a large number of cases involving police use of force, due process analysis might need to be rejuvenated. Yet during oral argument it was only mentioned once, by Justice Sotomayor when she asked petitioner if the Due Process Clause might apply to the case. Perhaps leery of conceding the Fourth Amendment claim, the attorney declined the invitation to speculate on the issue, stating that “[t]here are all sorts of abuses by the government of power that would fall short of the conscience-shocking standard, even though they would be unreasonable uses of excessive force.” Especially in the wake of the George Floyd incident and rising concerns about police use of force, a more aggressive response might have been called for.