EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 25, 2021

Supreme Court Rules That An Officer's Application of Force With Intent to Restrain is a Seizure

Today, the United States Supreme Court issued a landmark ruling in Torres v. Madrid, holding that "[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." Why is this important? To bring an excessive force claim, a plaintiff must prove that she was seized under the Fourth Amendment. In Torres, Albuquerque police officers executing an arrest warrant at an apartment complex ended up shooting Roxanne Torres twice as she drove away in her FJ Cruiser despite the fact that she was not the target of the arrest warrant. Torres, however, was able to continue driving away, leading the lower courts to conclude that she was not seized under the Fourth Amendment because she did not submit to the force used by the police officers and was instead able to continue driving away.

Torres appealed this issue to the Supreme Court, and I wrote the cert and merits stage amici curiae briefs for law professors, arguing that the application of physical force by an officer with intent to restrain is a seizure, even if the application of force is momentary and the plaintiff is able to escape. The heart of the briefs was the argument that the closest analogy to an arrest without probable cause, and thus a seizure, is the common law tort of false imprisonment, which only requires a momentary touching. 

Both the majority and dissent in Torres picked up on this thread, with differing results.

The dissent argued the common law tort of false imprisonment required some type of detention or submission to force. But the majority, written by Chief Justice Roberts held that

The tort of false imprisonment, which the dissent rightly acknowledges as the “‘closest analogy’ to an arrest without probable cause,” post, at 12 (quoting Wallace v. Kato, 549 U. S. 384, 388–389 (2007)), reinforces the conclusion that the common law considered touching to be a seizure. Stated generally, false imprisonment required “confinement,” such as “taking a person into custody under an asserted legal authority.” Restatement of Torts §§35, 41 (1934); see 3 Blackstone 127. But that element of confinement demanded no more than that the defendant “had for one moment taken possession of the plaintiff ’s person”—including, “for example, if he had tapped her on the shoulder, and said, ‘You are my prisoner.’” Simpson v. Hill, 1 Esp. 431, 431–432, 170 Eng. Rep. 409 (N. P. 1795); see Restatement of Torts §41, Comment h (noting that “the touching alone of the person against whom [legal authority] was asserted would be sufficient to constitute” confinement by arrest when the authority was valid). While the dissent emphasizes that “the court [in Simpson] proceeded to reject the plaintiff ’s claim for false imprisonment,” post, at 13, that was only because “the constable never touched the plaintiff, or took her into custody.” 1 Esp., at 431, 170 Eng. Rep., at 409. 

To be sure, the mere-touch rule was particularly well documented in cases involving the execution of civil process. An officer pursuing a debtor could not forcibly enter the debtor’s home unless the debtor had escaped arrest, such as by fleeing after being touched. See Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1604); see also Miller v. United States, 357 U. S. 301, 307 (1958). Officers seeking to execute criminal process, on the other hand, possessed greater pre-arrest authority to enter a felon’s home. See Payton, 445 U. S., at 598. But the fact that the common law rules of arrest generated more litigation in the civil context proves only that creditors had ready recourse to the courts to pursue escape actions for unsatisfactory arrests. There is no reason to suspect that English jurists silently adopted a special definition of arrest only for debt collection—indeed, they told us just the opposite. See supra, at 12. Nothing specific to debt collection elevated escape from arrest into a justification for entry of the home. Whenever a person was “lawfully arrested for any Cause and afterwards escape[d], and shelter[ed] himself in a House,” the officer could break open the doors of the house. 2 W. Hawkins, Pleas of the Crown 87 (1721) (emphasis added).

In any event, the officers and the dissent misapprehend the history of the Fourth Amendment by minimizing the role of practices in civil cases. “[A]rrests in civil suits were still common in America” at the founding. Long v. Ansell, 293 U. S. 76, 83 (1934). And questions regarding the legality of an arrest “typically arose in civil damages actions for trespass or false arrest.” Payton, 445 U. S., at 592. Accordingly, this Court has not hesitated to rely on such decisions when interpreting the Fourth Amendment. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012); Boyd v. United States, 116 U. S. 616, 626 (1886). We see no reason to break with our settled approach in this case

And so now, if a plaintiff is shot, grabbed, etc. by a police officer, she can seek damages for excessive force, even if she was able to evade detention.



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