Seized – But Not Stopped – by a Bullet

Torres v. Madrid, 141 S.Ct. 989 (2021)

Offices arrived at an apartment complex in Albuquerque to execute an arrest warrant for Roxanne Torres, who was accused of white-collar crimes but also “suspected of having been involved in drug trafficking, murder, and other violent crimes.” The officers spotted Torres standing near a car and attempted to speak with her as she got into the driver’s seat.

Though the officers all wore tactical vests with police identification, Torres—who was coming down from a dose of methamphetamine—mistook them for carjackers. She got into the car and hit the gas. The officers opened fire as she fled, hitting Torres twice. She escaped, stole a different car and drove 75 miles to a hospital in Grants, N.M. Doctors sent her by helicopter for treatment at a trauma center back in Albuquerque. She was arrested the following day.

Torres was convicted of aggravated fleeing from an officer, assault on an officer and motor vehicle theft. She sued the officers who shot her. The court of appeals held she had not been “seized” for Fourth Amendment purposes because she escaped custody. The court opined that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” Torres sought review by the Supreme Court.

The Court held, “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.”

The Supreme Court vacated the court of appeals ruling and remanded the case. The Fourth Amendment regulates government agents by prohibiting unreasonable “searches and seizures.” In a lawsuit alleging that an officer used excessive force, the plaintiff must be seized by the police. Generally, a seizure implicates control and custody of a person. However, the Court held, “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.”

Twenty years ago, in California v. Hodari D., the Supreme Court stated that “the word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” In Torres, the Supreme Court turned to a 400-year-old British decision from the Star Chamber Court, the Countess of Rutland’s Case. In that case, officers “shewed their mace, and touching her body with it, said to her, we arrest you, madam.” That constituted a “seizure.” The Court continued with a citation from an old English legal commentary: “The required ‘corporal seising or touching the defendant’s body’ can be as readily accomplished by a bullet as by the end of a finger.”

The Court explained a Fourth Amendment seizure requires the use of force with intent to restrain, as opposed to force applied by accident or for some other purpose. “The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain.” The officers seized Torres when they shot her with the intent to restrain her movement. The Supreme Court left for the lower courts the issues of the reasonableness of the seizure, whether a damage award is appropriate and whether the officers may be protected by qualified immunity.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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