In Torres v. Madrid, decided on March 25, 2021, the Supreme Court determined that a seizure takes place for Fourth Amendment purposes when the police shoot someone who is escaping from the scene, even if her escape is successful.
The context for this decision was a § 1983 lawsuit by Roxanne Torres alleging that the police used excessive force when they seized her. The police approached her suv, and she started to drive away. The two officers fired 13 shots, wounding her twice, but she continued to drive. The district court and the 10th Circuit ruled that because the police had not touched Ms. Torres or succeeded in getting her to stop, there had not been a seizure. Therefore, she could not bring a claim that the police used excessive force during a seizure.
The Supreme Court reversed by a 5 to 3 vote. In an opinion by Chief Justice Roberts, the Court held that “The 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 this person.” Drawing largely from Justice Scalia’s opinion in Hodari D., 499 US 621 (1991), the Court reasoned that a seizure is the application of physical force to a person’s body for the purpose of stopping them, even if that person does not submit to the force. The seizure lasts only as long as the force is being applied. There is not continuing arrest “during the period of fugitivity.” (The Court noted that a seizure also results when a person complies with a show of authority, such as an order to halt.) Because shooting Ms. Torres “applied physical force to her body and objectively manifested an intent to restrain her from driving away,” “the officers seized Torres for the instant that the bullets struck her.” Therefore, her claim for the use of excessive force during that seizure can proceed.