Updated on May 14, 2021
An Officer’s Bullet Constitutes a Seizure in Torres v. Madrid
Author: Rachel Zierden, Staff Editor
In the recent case Torres v. Madrid, the U.S. Supreme Court once again updated its Fourth Amendment jurisprudence. Led by Chief Justice Roberts, the Court determined that physical force with the intent to restrain the person is a seizure under the Fourth Amendment, regardless of whether the force succeeded in subduing the person.
Although the facts are contested, the Supreme Court wrote in Torres that four New Mexico State police officers arrived to execute an arrest warrant for a woman accused of several felonies. Although Ms. Torres was not the subject of the warrant, the officers approached her as she got into the driver’s seat of her vehicle. Ms. Torres thought was being carjacked, so she attempted to drive away. The officers shot at Ms. Torres thirteen times. She was struck twice in the back, which temporarily paralyzed her left arm. She was arrested the next day at a hospital in Albuquerque. Ms. Torres later sued the officers under 42 U.S.C. § 1983 claiming that they applied excessive force and thus committed an unreasonable seizure in violation of the Fourth Amendment.
The Court was faced with the question of whether “the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person.” The Court applied the “mere-touch rule,” a common law rule that even a mere touch from law enforcement constitutes an arrest “whether or not it succeeded in subduing the arrestee.” The Court extended this rule based on old English law cases, and it refused to “draw an artificial line between grasping with a hand and other means of applying physical force to effect an arrest.” But not every contact between law enforcement and a suspect is a seizure; the contact must still demonstrate objective intent to restrain. In a narrow decision, the Court found that two gunshots were sufficient to constitutes a seizure under the Fourth Amendment. A seizure by force lasts only as long as the application of force, and the fleeting nature of some seizures may affect the damages that a plaintiff can receive in a civil rights action. The decision relies neither on the subjective intent of the officer or the subjective perception of the suspect, as both are inconsistent with the history of the Fourth Amendment.
The dissent—written by Justice Gorsuch and joined by Justice Thomas and Justice Alito—disagreed that this was a seizure because the officers did not exercise control over Ms. Torres. The dissent emphasized that during an arrest or a seizure the government official must take possession of the item or person to be seized. They stated that the majority’s ruling was not supported by previous case law and would be extremely difficult to apply; the dissent provided examples of pepper spray, flash-bang grenades, lasers, and shattered windows to illustrate the potential difficulty.
The majority noted that determining whether a seizure occurred only constitutes step one of the analysis. The case was remanded for further determinations.
 Torres v. Madrid, 592 U.S. ___, 1, 1 (2021).
 Id. at 1–2.
 Id. at 2.
 Id. at 2–3.
 Id. at 3.
 Id.; California v. Hodari D., 499 U.S. 621, 625 (1991).
 Torres, 592 U.S. at 8; see Countess of Rutland’s Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605) (deciding that a spray of mace constituted an arrest because it touched her body as officers declared the arrest).
 Torres, 592 U.S. at 8.
 Id. at 10.
 Id. at 17.
 Id. at 10.
 Id. at 11.
 Id. at 25, 28.
 Id. at 22–23.
 Id. at 17.