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
Updated April 1, 2021
UPDATE: On March 25, 2021 the Supreme Court held in a 5-to-3 decision in Torres v. Madrid that the
“application of physical force to the body of a person with intent to restrain is a seizure” within the
meaning of the Fourth Amendment, “even if the force does not succeed in subduing the person.” In an
opinion authored by Chief Justice Roberts and joined by Justices Breyer, Sotomayor, Kagan, and
Kavanaugh, the majority, looking to the historical definition of seizure and its present-day legal meaning,
concluded that “‘seizure’ of a ‘person’ plainly refers to an arrest.” In addition, the majority determined
that historically, an arrest could occur even through mere touch—“the slightest application of force”
such as by the “laying of hands”—and even where the arrestee escaped. Although, the majority
acknowledged that Torres arose from “a shooting” rather than the laying of hands on a suspect, it
declined to “draw[] an artificial line between grasping with a hand and other means of applying physical
force to effect an arrest.” According to the majority, the requisite seizing or touching can “be as readily
accomplished by a bullet as by the end of a finger.” The majority reasoned that “the focus of the Fourth
Amendment is ‘the privacy and security of individuals,” and not the manner or form of governmental
“invasion.”
The majority described its holding in Torres as narrow, noting that for conduct to amount to a seizure by
use of force, the force must manifest objective intent to restrain. In addition, a seizure lasts “only as long
as the application of force”—and in this case, the seizure of Torres occurred for “the instant that the
bullets struck her.” The majority clarified that, unlike seizure by application of force, seizure by show of
authority still requires either “voluntary submission” or “termination of freedom of movement.”
Although the majority concluded that the officers seized Torres, it did not decide the reasonableness of
the seizure—a separate requirement under the Fourth Amendment—or the officers’ entitlement to
qualified immunity.
Justice Gorsuch authored a dissent in Torres, joined by Justices Thomas and Alito, in which he argued
that based on the text of the Fourth Amendment, seizure has always required “taking possession of
someone or something.” Justice Gorsuch accused the majority of employing a “schizophrenic”
interpretation of seizure that differs based on whether the seizure is directed at a person or an object. He
also took issue with the majority’s application of common law arrest cases, noting that the common law
cases cited by the majority focus on civil arrest rather than criminal arrest, and do not support the
determination that an arrest could historically be effectuated by use of firearms or other objects. The
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dissent further contended that conduct such as an unsuccessful seizure by use of a firearm is more akin to
assault or battery, potentially subjecting officers to state tort claims.
Justice Barrett did not participate in the consideration or decision of Torres.
Background
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.
Below, we outline relevant precedent on seizure by unsuccessful use of force before analyzing the lower
court decisions in Torres, and the theories presented on appeal.
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 on whether seizure occurs when an officer intentionally applies force to a suspect
who then flees. Prior to Torres the Supreme Court had not directly ruled on whether such unsuccessful use
of force is a seizure, although it had 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.
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
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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. 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. 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
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 presented 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
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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 argued that the officers seized her when they fired shots with the intent
to stop her. Torres contended that seizure incorporated the common-law concept of “arrest” at the
founding, and further argued 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—argued 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 asserted that a Fourth
Amendment seizure requires obtaining control of the suspect. The officers argued 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 concluded 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 dismissed 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 relevant language in Hodari D. could be mere dicta given that it appeared “six times” in “a seven-
page opinion.”
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
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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.
Author Information
Peter G. Berris
Legislative Attorney
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