Torres v. Madrid

No. No. 19-292 - Argued October 14, 2020
At Issue

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
Background and Case Commentary

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.

Torres v. Madrid on Oyez:

Key Questions from Oral Argument

Justice Sotomayor to Petitioner (11:07): Now can you explain why this case is so important? Meaning, if you don't--if you weren't to have a Fourth Amendment violation, would the Due Process Clause provide you with a remedy?

Christopher Slobogin: Thank you for that question Justice Sotomayor. If the Court were to find that the shooting in this case was not a Fourth Amendment seizure, then, as you suggest, it should address whether the police action violated the Due Process Clause. This Court’s decisions in Garner and Graham apply when police use of force results in a seizure. But this Court’s cases also clearly establish that the Due Process Clause prohibits egregious police actions that involve no restraint on movement and do not trigger any other specific constitutional provision. Most obviously, in numerous cases in which police used improper physical and psychological techniques during interrogation of suspects—suspects who had already been seized and taken into custody—this Court has held that police violated the Clause. If the harm caused by unjustifiable beating, prolonged questioning, and physical threats is enough to trigger due process protection, the harm caused by unjustifiably shooting a person should be as well. To the concern that application of due process analysis to these types of cases would leave too much to judicial discretion, I would offer two observations. First, in analyzing cases that do not involve seizures, courts can rely upon the same criteria they use in seizure cases, by deciding whether the use of force would have been reasonable had it in fact resulted in a seizure. Second, while the constitutional standard should be the same whether the victim dies or survives, the damages awarded in such cases could reflect the gravity of harm inflicted.