In a divided opinion, the United States Supreme Court recently corrected the Tenth Circuit’s divergence from centuries old law defining what constitutes a seizure by law enforcement for the purposes of Fourth Amendment analysis.  In Torres v. Madrid,[1] the Court analyzed whether a person was “seized” for the purposes of the Fourth Amendment where a criminal suspect was shot by officers, but refused to acquiesce and continued her flight from the scene.  The trial and lower appellate courts held that her failure to submit after being shot negated an excessive force claim.  In reversing summary judgment entered in favor of the officers, the Supreme Court held that any physical contact with the intent to restrain, regardless of how slight, constitutes a seizure for Fourth Amendment purposes regardless of whether the suspect is taken into custody or otherwise submits to authority.  Here, the bullets impact on the plaintiff constituted a seizure, even if she refused to submit and fled the scene.  The reasonableness of the shooting is to be determined upon remand to the lower court.

The Torres Court evaluated an unusual circumstance where a criminal suspect was shot while fleeing police, but did not stop.  She was later apprehended and initiated a lawsuit against the officers for excessive force in violation of the Fourth Amendment to the Constitution.  The officers moved for summary judgment which was granted under Tenth Circuit precedent that held that “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to the physical control over the suspect.  The Supreme Court’s decision now clearly rejects the Tenth Circuit’s rationale.

In an impressive historical analysis of what constitutes a “seizure” of a person for Fourth Amendment purposes, which here is the equivalent of the use of force, the Court turned first to English common law dating back to the 1600s.  From the 1600-1800s English law provided that a “seizure” occurred when an officer of the law “laid hands” on the subject to be arrested for the purposes of taking him or her into custody.  The Torres Court reasoned there is no appreciable difference between touching a criminal suspect with one’s hands or with a weapon, in this case, fired bullets.  In America at the time the Fourth Amendment was adopted, a “seizure” was interpreted consistently with English common law and did not require the suspect’s submission or the officer’s control or detention of the suspect to constitute a seizure.  More recent Supreme Court authority has instructed that a seizure of a person requires either physical force, or, where that is absent, submissionto the assertion of authority.  The lower court erred because it co-mingled the two alternative ways to prove a seizure occurred. 

By way of example, in cases where an officer demonstrates a show of authority and issues a verbal command to stop, and the suspect submits, then a seizure has occurred.  Conversely, in cases where an officer demonstrates a show of authority and issues a verbal command to stop, and the suspect does not submit, then no seizure has occurred and the Fourth Amendment’s reasonableness requirement does not apply.  Where, however, an officer uses even slight force in an effort to detain someone, that slight force itself is sufficient to constitute a “seizure” of the person for Fourth Amendment purposes, regardless of how brief.  Commonly referred to as the mere-touch rule, centuries of English common law and American precedent establish that even the slightest touch constitutes a detention, thus implicating the Fourth Amendment’s reasonableness requirement.  The nature and extent of the touch, that is, the force used, may be relevant to the type and scope of civil damages, but, it has no bearing on whether a seizure occurred. 

The practical application of the Court’s reiteration of the mere-touch rule is subtle.  Although the Court denied to extend its analysis beyond the very specific facts of the case, it did expressly limit its application to intentional force used with the intent to restrain.  “Accidental force,” the Court noted, “will not qualify.”  Accordingly, those injured by accidental shootings or other force will not have been seized for the purposes of the Fourth Amendment.  Although other federal and/or state remedies may apply to cases where an officer causes accidental injury, a suit for a violation of the Fourth Amendment will most likely fail.  The dissent argues that the majority’s rule is insufficiently defined, because it leaves open questions of whether incidental contact set in motion by an officer’s intentional act is sufficient to satisfy a seizure.  Examples posed by the dissent include sound waves that contact a fleeing suspect’s ear drums from a police deployed flash-bang grenade or debris from a windshield shot by an officer.  The Court declined to analyze these “touches,” and therefore, the Court’s analysis regarding these potential seizures is for another day. Law enforcement executives should ensure that agency policies properly define what constitutes a “seizure” as clarified by the Supreme Court, and that in their application, officers are held appropriately accountable under the correct analysis.

[1] 582 U.S.           , Case No. 19-292 (2021)