By Jack Ryan, Attorney, Co-Director LLRMI

There are two types of seizures that have been identified under the Fourth Amendment.  They are identified as a “show of authority seizure” and a “physical seizure.”

The first type, a “show of authority seizure was first identified in California v. Hodari D.[i] a case where a juvenile running from officers discarded narcotics while still in flight.  Hodari D.’s argument was that, while acknowledging he was still running, noted that the police were telling him to stop and essentially had him boxed in with one officer behind him and one officer coming at him at the time he discarded the drugs.  The United States Supreme Court held that a “show of authority” seizure does not occur until there is a show of authority AND the subject submits to that show of authority.  Although the officers had shown authority to Hodari D., Hodari D., had not submitted and thus was not seized at the time he abandoned the drugs.

The second type of seizure has been identified as a “physical seizure” which occurs when an officer stops a person’s movement by a means intentionally applied.  The definition came from the United States Supreme Court decision in Brower v. Inyo County. [ii] In Brower, officers up ahead of pursuit commandeered a tractor-trailer truck and parked it across the highway creating a roadblock.  The truck was positioned on the backside of blind curve in a manner that would make it difficult for the fleeing driver to see it until the last seconds and thus would be unable to take evasive action.  The tractor-trailer roadblock was successful in stopping the fleeing motorist, unfortunately, the fleeing motorist was killed when he hit the truck.  In defending the officers in a civil suit, it was argued that they had not seized the driver, but rather the fleeing driver was still fleeing at high-speed when, through his actions, he crashed into the truck.   The Supreme Court rejected this argument noting that the officers had specifically put the truck across the highway (means intentionally applied) and that the intentional actions of the officers had stopped the driver’s movement thus a physical seizure had occurred.

In Torres v. Madrid,[iii] the United States Supreme Court looked at a case where officers intentionally used force by shooting at a fleeing motorist, the motorist was struck by bullets, however the motorist continued to flee, carjacked a second vehicle and drove to a hospital seventy five miles away.  The question presented to the Court was whether the shooting and wounding of a subject was a seizure where the wounding failed to stop the subject’s movement.  The Court recited the facts as follows:

At dawn on July 15, 2014, four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white-collar crimes, but also “suspected of having been involved in drug trafficking, murder, and other violent crimes.”  What happened next is hotly contested. We recount the facts in the light most favorable to petitioner Roxanne Torres because the court below granted summary judgment to Officers Janice Madrid and Richard Williamson, the two respondents here.

The officers observed Torres standing with another person near a Toyota FJ Cruiser in the parking lot of the complex. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres—at the time experiencing methamphetamine withdrawal—got into the driver’s seat. The officers attempted to speak with her, but she did not notice their presence until one of them tried to open the door of her car.

Although the officers wore tactical vests marked with police identification, Torres saw only that they had guns. She thought the officers were carjackers trying to steal her car, and she hit the gas to escape them. Neither Officer Madrid nor Officer Williamson, according to Torres, stood in the path of the vehicle, but both fired their service pistols to stop her. All told, the two officers fired 13 shots at Torres, striking her twice in the back and temporarily paralyzing her left arm.

Steering with her right arm, Torres accelerated through the fusillade of bullets, exited the apartment complex, drove a short distance, and stopped in a parking lot. After asking a bystander to report an attempted carjacking, Torres stole a Kia Soul that happened to be idling nearby and drove 75 miles to Grants, New Mexico. The good news for Torres was that the hospital in Grants was able to airlift her to another hospital where she could receive appropriate care. The bad news was that the hospital was back in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.

Torres later sought damages from Officers Madrid and Williamson under 42 U. S. C. §1983, which provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law. She claimed that the officers applied excessive force, making the shooting an un- reasonable seizure under the Fourth Amendment. The District Court granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed on the ground that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.

It is noted that in accord with the definition of a physical seizure, a stopping of movement by a means intentionally applied, the lower courts concluded that the stopping of movement element was not satisfied.

In analyzing the law the Court noted that a common law, the application of physical force to a person’s body was an arrest, irrespective of whether that person yielded to arrest.  The Court noted the common law recognition of a “mere touch” rule with respect to arrest. The Court noted that this was distinguishable from a show of authority seizure where no physical force is applied that requires submission by the suspect.  After going through lengthy discussions of common law decisions on arrest, the Court noted:

We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. See County of Sacramento v. Lewis, 523 U. S. 833, 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend.

The Court also noted that their decision in this case was a narrow one, writing:

The rule we announce today is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force. That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U. S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. But brief seizures are seizures all the same.

The Court addressed the dissents’ argument that a seizure required complete control of a suspect and noted that there both a seizure by control and a seizure by force was recognized at common law and thus is also recognized by the holding in this case.

The Court concluded:

We hold 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. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. All we decide today is that the officers seized Torres by shooting her with intent to restrain her movement. We leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Bottom Line:  Where an officer has intentionally applied force to a person’s body with the intent to restrain that person, a Fourth Amendment seizure has occurred irrespective of whether the force applied to the person’s body accomplished a stopping of their movement.



[i] California v. Hodari D.., 499 U.S. 621 (1991).

[ii] Brower v. Inyo County, 489 U.S. 593 (1989).

[iii] Torres v. Madrid, No. 19–292. Argued October 14, 2020—Decided March 25, 2021


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