SCOTUS Reaffirms Common Law of Seizures in Torres v. Madrid

Yesterday, the Supreme Court ruled 5-3 in Torres v. Madrid that when, in 2014, officers shot a woman repeatedly as she drove away from them, that act constituted a “seizure” under the Fourth Amendment. Ms. Torres may now continue her suit for damages against those officers. Chief Justice Roberts asserted a bright-line, relatively broad rule, holding “that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.”

Restore The Fourth previously reported on this case, and filed an amicus brief that argued that the common law at the time of the Founding permitted two kinds of arrest, physical (which do not require a show of submission) and constructive (which do). The arrest in Torres was a plain example of a physical arrest that would have unambiguously been considered a seizure, because a physical attempt was made to detain Torres, and “touching in the most indefinite manner is sufficient” – even if, as in fact happened, she was temporarily able to escape police custody after the seizure occurred.

It appears that Chief Justice Roberts’ opinion paid close attention to our brief, ably put together by RT4 Litigation Working Group Chair Mahesha Subbaraman. Notably, he adopted our reasoning on constructive and physical trespass, and used the 1738 case of Horner v. Battyn in a similar way to describe the evolution of the one from the other.

As a consequence of this decision, the default assumption of lower courts must be that, in this and other contexts where police “use force to apprehend” a person, whether or not that apprehension is successful, a seizure does occur. The Fourth Amendment is a little stronger today, thanks to this ruling, and to Restore The Fourth’s intervention in the case.

Even after seven years, Ms. Torres’s road to obtaining damages is still a long and hard one. Predictably, the local district attorney decided long ago to not file criminal charges against the officers, saying that they had had to make a “split-second decision.” To obtain civil damages, Ms. Torres will still, for example, need to prove that the seizure was “unreasonable”, and that it was so clearly so that the officers are not entitled to qualified immunity..

To help support our work on future Fourth Amendment cases, please donate here.

Protesting in the Age of Mass Surveillance

The rights to assemble and petition the government for a redress of grievance are under acute threat, domestically and internationally. If you want to find out more about how to protest without the government tracking you, our Minnesota chapter held a timely discussion Thursday on “Protesting in the Age of Mass Surveillance” with technologist Bruce Schneier, RT4 Litigation Chair Mahesha Subbaraman, ACLU-MN attorney Isabella Nascimento and Freddy Martinez of Open The Government, moderated by Minneapolis activist and RT4 Program Associate Jo Facklam.

Audio only:

Restore the Fourth Minnesota will also be hosting a series of hands on workshops for activists on the ground to receive personalized attention from security experts and protest veterans.