Torres v. Madrid: Police Use of Force, Fourth Amendment Seizures, and Fleeing Suspects?




Legal Sidebari

Torres v. Madrid: Police Use of Force, Fourth
Amendment Seizures, and Fleeing Suspects?

November 12, 2020
In recent months, many in Congress have shown interest in the laws governing the use of force by law
enforcement following incidents such as the death of George Floyd in police custody and the fatal
shooting of Breonna Taylor by officers executing a no-knock search warrant. In October, the United
States Supreme Court heard oral arguments in Torres v. Madrid, an appeal from the Tenth Circuit that asks
when police use of force is subject to the Fourth Amendment’s prohibition against unreasonable seizures.
Specifically, the question presented by Torres is whether a suspect has been seized within the meaning of
the Fourth Amendment when an officer intentionally uses force to detain that suspect, but is
unsuccessful—such as when the suspect temporarily evades capture. The Supreme Court has on several
occasions used language that at least indirectly addresses the possibility of seizure by an unsuccessful use
of force, but such language at times appears contradictory and courts have disagreed on how to apply it.
This Sidebar briefly outlines relevant precedent on seizure by unsuccessful use of force before analyzing
the lower court decisions in Torres, the theories presented on appeal, and the likely implications of the
case.
The Fourth Amendment and Unsuccessful Seizure Precedent
The Fourth Amendment limits the ability of police officers to use force when making arrests. In relevant
part, it prohibits “unreasonable searches and seizures.” Therefore, the determination of whether the use of
force by police is unconstitutional under the Fourth Amendment often turns on whether it is reasonable.
But because the Fourth Amendment governs “searches and seizures,” police use of force will only be
analyzed under that clause if it qualifies as a search or seizure. A seizure generally occurs when “the
officer, by means of physical force or show of authority” restrains “the liberty of a citizen” or “the
freedom of a person to walk away.”
Federal courts disagree, however, on whether seizure occurs when an officer intentionally applies force to
a suspect who then flees. Although the Supreme Court has not directly ruled on whether such
unsuccessful use of force is a seizure, it has made statements on the issue in other cases involving related
topics such as attempted seizure by show of authority and successful seizure by use of force. Those
statements arguably conflict and have been applied inconsistently by other courts.
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One precedent at the heart of this judicial disagreement over fleeing suspects is Brower v. County of Inyo.
In Brower, the Supreme Court examined whether a suspect was seized within the meaning of the Fourth
Amendment when he fatally collided with a roadblock intended to end his high-speed chase with police.
Brower therefore involved seizure by use of force that actually stopped the suspect, but the Court’s
decision included language that could be read to apply beyond those circumstances, saying that generally,
seizure requires “an intentional acquisition of physical control” of the suspect. This interpretation of the
Fourth Amendment did not contain any language limiting it to the factual circumstances of the case and
could be read to suggest that an unsuccessful attempt to detain a suspect through force is not a seizure.
The Supreme Court seemed to modify that potential requirement in California v. Hodari D., another
Fourth Amendment case involving a fleeing suspect. The Court explained that at common law “the mere
grasping or application of physical force with lawful authority” was sufficient to amount to an arrest—the
“quintessential” form of seizure—even if unsuccessful in “subduing the arrestee.” The Hodari D. Court
further concluded that seizure can occur in two ways: (1) through physical force, or (2) “where that is
absent, submission to the assertion [or show] of authority.” In other words, Hodari D. indicates that
obtaining control over the suspect is not a requirement of seizure under the Fourth Amendment as Brower
suggests, if physical force has been applied in an attempt to detain the suspect. However, Hodari D. did
not involve seizure by use of force, but rather seizure by show of authority. The issue in Hodari D. was
whether cocaine discarded by a suspect during his flight from officers was the product of an
unconstitutional seizure and therefore could not be used as evidence against him in his criminal
prosecution. The suspect was fleeing from law enforcement officers when he tossed away the cocaine,
and he was soon tackled and restrained. Because the suspect discarded the cocaine before he was tackled,
the drugs could only be the byproduct of a seizure if the suspect had already been seized when he first
saw the officers—in other words, seized by virtue of the officers’ show of authority. However, the suspect
in Hodari D. did not submit to any such show of authority and therefore, the Court held that he “was not
seized until he was tackled.” Thus, despite the Court’s broader language above about the possibility of
seizure by unsuccessful use of force, Hodari D. itself did not arise from such circumstances.
On at least two subsequent occasions, the Supreme Court has revisited Hodari D. and arguably narrowed
its language on seizure by unsuccessful use of force. First, in a footnote in County of Sacramento v. Lewis,
the Court quoted Hodari D. in support of a broad statement that the Fourth Amendment excludes
“attempted seizures,” which could be interpreted as encompassing instances where an officer applies
force to a suspect who escapes. However, the Lewis footnote relied on passages from Hodari D. that were
from the portion of that opinion ruling on a failed seizure by show of authority, rather than use of force.
Furthermore, Lewis itself did not involve the unsuccessful application of intentional force but rather an
accidental application of force that did stop the suspect. Accordingly, it appears that some courts view
Lewis as limited to those circumstances. The Supreme Court again revisited Hodari D. in Brendlin v.
California
.
Although Brendlin did not involve either force or a fleeing suspect—the issue was whether a
passenger in a vehicle stopped by law enforcement was seized—the case nonetheless included language
that could arguably contradict Hodari D.’s statement about the application of force. Specifically, the
Brendlin court noted that seizure may occur by “physical force or show of authority” that “terminates or
restrains” the suspect’s “freedom of movement.” This statement seemingly indicates that both types of
seizure require actual acquisition of physical control of the suspect, which could be difficult to reconcile
with Hodari D.’s language suggesting that seizures by show of authority require submission by the
suspect, but that seizures by use of force may not. Also in possible conflict with Hodari D. is the Brendlin
Court’s separate observation that “a fleeing man is not seized until he is physically overpowered.”
Federal courts have diverged in their interpretation and application of these Supreme Court precedents.
Several federal appellate courts, including the Eighth, Ninth, and Eleventh Circuits, have cited Hodari D.
as binding authority that a seizure occurs when “physical force is applied, regardless of whether the
citizen yields to that force.” In contrast, other courts, including the Tenth Circuit and D.C. Court of
Appeals,
have concluded, in light of Brower, that seizure requires physical control of the suspect. For


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example, in Brooks v. Gaenzle, the Tenth Circuit rejected a Fourth Amendment excessive force claim
brought by a suspect who had been shot by police but who “eluded arrest for three days,” concluding that
he was not seized. In so holding, the court dismissed as dicta the language in Hodari D. suggesting that
seizure by force need not be successful.
Torres v. Madrid
Torres
presents an opportunity for the Court to resolve the judicial disagreement over whether seizure
under the Fourth Amendment includes police use of force that fails to bring a suspect under control. The
case stems from an early-morning encounter between Roxanne Torres and two New Mexico State Police
officers at an Albuquerque apartment complex where the officers were executing an arrest warrant. Torres
was sitting behind the wheel of an SUV parked in front of the apartment building where the officers
believed that the subject of the warrant resided. The officers approached Torres and demanded that she
open the SUV door. Torres instead began to drive away. The officers fired at Torres and struck her twice.
Torres fled but was eventually identified and arrested. In her subsequent lawsuit, Torres alleged that by
shooting her, the officers used excessive force and violated her right to be free from unreasonable seizure
under the Fourth Amendment. The district court disagreed with Torres, ruling that she failed to show that
there was a seizure because the officers’ use of force “did not stop” her. On appeal, the Tenth Circuit
agreed with the district court that there was no seizure because Torres “did not stop” or “submit to the
officers’ authority,” citing the circuit’s own precedent in Brooks, discussed above.
Before the Supreme Court, Torres argues that the officers seized her when they fired shots with the intent
to stop her. Torres contends that seizure incorporated the common-law concept of “arrest” at the founding,
and further argues that at common law, arrest could occur by “mere touch with the intent to restrain”—in
other words, by intentional application of even minimal force regardless of whether the suspect was
detained. According to Torres, Hodari D. clarifies that the Fourth Amendment encompasses this common-
law conception of arrest, and means that “an intentional application of physical force constitutes a seizure
‘even though the subject does not yield.’” At oral arguments, at least three Justices questioned the
applicability of Hodari D.’s discussion of common law “mere touch” cases to individuals like Torres. For
example, Justices Alito and Thomas asked whether “mere touch” cases encompassed not only direct
human contact but also “shooting someone” or using an “inanimate object.” Although Torres’s attorney
cited to a 1604 case to support the possibility of seizure through use of an object, she conceded that “there
were no shooting cases at the founding,” but argued this lack of supporting cases was “because arrests
were not effectuated with guns at that point.” By contrast, Justice Gorsuch observed that guns were “not
unknown” at the founding.
The United States Solicitor General’s office—which filed a brief and participated in oral arguments as a
friend of the court
in support of Torres—argues that the Fourth Amendment includes “seizure by
intentionally applying restraining force to a subject.” Although escape by the subject of that force “will
render the seizure fleeting,” according to the Solicitor General’s office, it does not “negate the seizure
entirely.”
In contrast, citing to precedents including Brower and Brendlin, the officers assert that a Fourth
Amendment seizure requires obtaining control of the suspect. The officers argue that such holdings
comport with the historical understanding of seizure, which “from the time of the founding” has required
“taking possession” of the suspect. Thus, the officers conclude that since Torres did not submit when shot,
she was not seized within the meaning of the Fourth Amendment. In reaching their position, the officers
dismiss as dicta the language in Hodari D. cited by Torres because “it was unnecessary to the result” of
that case. For example, in response to questioning by Justice Thomas at oral arguments, the officers’
attorney argued that the relevant language was extraneous because Hodari D. did “not involve . . . use of
force.” Justice Sotomayor, however, described the Hodari D. language on seizure by unsuccessful use of
force as key to the “entire analytical approach” of that opinion, and Justice Kagan questioned how the


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relevant language in Hodari D. could be mere dicta given that it appeared “six times” in “a seven-page
opinion.”
Implications for Congress
Oral arguments in Torres brought up some issues that have been of interest to many in Congress in recent
months, such as the legal limitations on the use of force by police officers, and the recourse available
when officers exceed those limits. For example, Justices Breyer and Sotomayor asked what legal recourse
would be available if the Fourth Amendment does not encompass the unsuccessful use of force by police
to restrain a suspect—a concern reflected in a number of amicus briefs filed in Torres. Justice Breyer
remarked that if the Fourth Amendment includes only successful searches and seizures, it would leave “no
protection at all”
for “a whole area” of the “right of the people to be secure . . . from unreasonable
searches and seizures.” In contrast, Justices Alito and Gorsuch asked about the availability of other legal
remedies for individuals like Torres—raising whether ruling for the officers would abolish all avenues to
challenge the unsuccessful use of force. They questioned whether Torres could seek relief through tort
battery claims in state courts or under the Fourteenth Amendment—which prohibits deprivation of “life,
liberty, or property, without due process of law” and includes a “substantive component” barring “certain
arbitrary government actions.” The officers’ attorney responded that both were possibilities. Torres’s
attorney countered that because due process violations occur only where the conduct at issue “shocks the
conscience,” “all sorts of abuses by the government . . . would fall short” of that standard, which
generally poses a “high threshold” for plaintiffs to meet. As for state tort claims, Torres argued in briefing
that they are not “adequate substitute[s] for a Fourth Amendment remedy.” In some states, tort claims
against officers are unavailable absent constitutional violations, and officers may also be protected against
tort claims by defenses unique to that context.
The Court’s resolution of Torres could have significant implications. If the Court concludes that
unsuccessful use of force can qualify as a seizure under the Fourth Amendment—as Torres argues—
Congress could not change the scope of this constitutional right through legislation even if it disagrees
with the outcome. If the Court instead rules that Torres cannot establish a Fourth Amendment violation,
then as discussed above, individuals like Torres may have other avenues available for legal recourse,
including state tort remedies and Fourteenth Amendment Due Process claims. Although Congress could
not alter the scope of state law claims or Fourteenth Amendment rights, Congress might be able to
otherwise enact legislation addressing unsuccessful police use of force. For example, Congress could
likely create a statutory remedy for the subjects of force by federal law enforcement. It has less flexibility
to create such a route for those subject to force applied by state or local law enforcement, however.
Also of possible interest to Congress given the recent confirmation hearings of Justice Barrett, the
Supreme Court vacancy created by the death of Justice Ginsburg had yet to be filled when oral arguments
were held in Torres last month. Therefore, eight Justices heard oral arguments in the case—the general
implications of which are discussed in other CRS products. Although Justice Barrett has since been
confirmed by the Senate, it is standard Supreme Court practice that new Justices do not participate in
decisions in cases argued before they were seated—although in some instances the Court may order
reargument to allow for such participation.


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Author Information

Peter G. Berris

Legislative Attorney




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