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. [emphasis added]

Torres v. Madrid

No. 19 – 292 (2021)

U.S. Supreme Court

March 24, 2021

On Tuesday, July 15, 2014 at 6:30 a.m. New Mexico State Police Officer Janice Madrid and Officer Richard Williamson went to an apartment complex in Albuquerque, New Mexico at 6100 Harper Northeast to serve a Fraud warrant on Ms. Kayenta Jackson.

Apartment Complex in Albuquerque, New Mexico –  6100 Harper Northeast where Ms. Roxanne Torres was on a Meth bender and fled from law enforcement.

The officers were wearing marked tactical clothing and came across Felon Emeritus Ms. Roxanne Torres.  Following this incident Ms. Torres stated she was in the midst of Methamphetamine withdrawal, which will be important in the events that follow. Ms. Torres was inside a Black and White, Toyota FJ Cruiser. The officers approached and were standing on either side of the vehicle and attempted to open the car door which was locked.   Ms. Torres claimed she believed she was being car-jacked so she abruptly fled.  She continued driving over a curb, across some landscaping, and into a street, eventually colliding with another vehicle.

Though the officers were not standing the path of the vehicle, they fired thirteen shots from their handguns at Ms. Torres as she fled away from them.  Ms. Torres was struck twice in the back which temporarily paralyzed her left arm.  Ms. Torres stopped in a nearby parking lot and stole a white Kia.  She would then travel over eighty miles west in the stolen Kia to Cibola General Hospital in Grants, New Mexico.  She was initially treated for her gunshot wounds and then airlifted back to a hospital in Albuquerque, New Mexico where she was arrested the next day and charged with fleeing, Aggravated Assault on a Peace Officer and unlawfully taking of a vehicle.  Ms. Torres then plead no contest.

After being shot, Ms. Torres drove over eighty miles to a rural hospital only to be flown back to Albuquerque for medical treatment.

Ms. Torres filed a Deprivation of Federal Civil Rights 1983 claim.  She alleged that the officers violated her Fourth Amendment rights as she was seized at the moment the bullets struck her.  Interestingly, both Ms. Torre’s lawyers and the lawyers representing the officers relied on the same case as precedent but argued it in different ways.  That case was California v. Hodari D. 499 U.S. 621 (1991).  The decision was crafted by Justice Antonin Scalia and that case held “To constitute a seizure of the person … there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s show of authority, to restrain the subject’s liberty.”.

The issue: Was Ms. Torres seized at the moment a bullet entered her body?  Ms. Torres argued that once force was used, she was seized under the Fourth Amendment, even if she did not submit to the force or was restrained.

Or was she not seized because she was never physically controlled?  The officers argued that if she was not physically seized, she could not successfully sue them for an unreasonable seizure.

The U.S. Supreme Court, in a five to three decision [Justice Amy Coney Barrett did not take part because she was not on the court when it was presented] sided with Ms. Torres; “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.”.   So YES[!], a suspect can be seized and fleeing at the same time!

This case will be remanded [sent back] to the entry level federal district court.  There Ms. Torres may still lose because that court may find that even though she was seized the seizure was reasonable. Of course the court could alternatively find in favor of Ms. Torres and find that the seizure was unreasonable.  What does remain unresolved is whether Felon Emeritus Torres will arrive at court lawfully or will she have to steal a car?

Information for this article was obtained from Torres v. Madrid, 19 – 292 (2021), U.S. District Court, Torres v. Madrid, No. 1:16-cv-01163-LF-KK and news articles.

Lessons Learned:

  1. What should be taken from this case for law enforcement? Not much.  This case will have substantive impact in very few cases.  However, in the cases it does have impact it may be very important.  If law enforcement uses unreasonable force on a person, the person flees, the person may sue law enforcement for unlawful seizure even though they were not in custody.  Law enforcement should not modify anything they are currently doing based on this case as this case has NO impact on lawful seizures with force only unlawful seizures with force.
  1. The case leaves open many fact patterns that will be pulled on like saltwater taffy in the coming years. What if an officer attempts to grab a suspect and the officer has an un-manicured fingernail and the suspect sustains a scratch – but still flees?  What if an officer maces a suspect, never physically touches him, the mace has some affect and the suspect flees?  Law enforcement is intimately familiar with the various effects of mace.  The effect could be as mild as a sneeze or as intense as involuntary closing of the eyes with snot extending from the nose to the knees.  Would application of mace be considered a seizure under Torres?  What if a suspect is inside a house that is hit with flash bangs but then flees?  The shock and awe of the flash bang can be substantive, perhaps a damaged ear drum, but under Torres would that be a seizure if the suspect fled?  This case creates many more questions than it answers.  When these incidents occur in the future none of the five justices from Harvard and Yale will be at the scene shouting out instructions.
  1. In dissent Justice Gorsuch opined “A mere touch may be a battery. It may even be part of an attempted seizure. But the Fourth Amendment’s text, its history, and our precedent all confirm that “seizing” something doesn’t mean touching it; it means taking possession.”. He goes on to state “So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not her car, when they shot both and both continued speeding down the highway. The majority’s need to resort to such a schizophrenic reading of the word “seizure” should be a signal that something has gone seriously wrongthe majority proceeds to reason that the word “seizure” must carry a different meaning for persons and objects because persons alone are “capable of fleeing” and have “an interest in doing so.”. Though he too is an alum from Harvard Law, he makes much better legal sense then his teammates.
  1. On June 10, 1968 the U.S. Supreme Court issued Terry v. Ohio, 392 U.S. 1, FN 16 (1968) which held in pertinent part “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.”. Today in Torres, the U.S. Supreme Court holds the opposite “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.”.  If the U.S. Supreme Court with time, cool reflection and LOTS of law clerks cannot define a seizure … how is a street cop, with little time, no reflection and no law clerks?  Law enforcement is truly the Hardest Job in America!

Does your agency train on seizing suspects without touching them?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.