Torres v. Madrid ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TORRES v. MADRID ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 19–292. Argued October 14, 2020—Decided March 25, 2021
Respondents Janice Madrid and Richard Williamson, officers with the
New Mexico State Police, arrived at an Albuquerque apartment com-
plex to execute an arrest warrant and approached petitioner Roxanne
Torres, then standing near a Toyota FJ Cruiser. The officers at-
tempted to speak with her as she got into the driver’s seat. Believing
the officers to be carjackers, Torres hit the gas to escape. The officers
fired their service pistols 13 times to stop Torres, striking her twice.
Torres managed to escape and drove to a hospital 75 miles away, only
to be airlifted back to a hospital in Albuquerque, where the police ar-
rested her the next day. Torres later sought damages from the officers
under 42 U. S. C. §1983. She claimed that the officers used excessive
force against her and that the shooting constituted an unreasonable
seizure under the Fourth Amendment. Affirming the District Court’s
grant of summary judgment to the officers, the Tenth Circuit held that
“a suspect’s continued flight after being shot by police negates a Fourth
Amendment excessive-force claim.” 769 Fed. Appx. 654, 657.
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. Pp. 3–18.
(a) The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures.” This Court’s precedents have interpreted
the term “seizure” by consulting the common law of arrest, the “quin-
tessential” seizure of the person. Payton v. New York, 445 U. S. 573,
585; California v. Hodari D., 499 U. S. 621, 624. In Hodari D., this
Court explained that the common law considered the application of
physical force to the body of a person with the intent to restrain to be
an arrest—not an attempted arrest—even if the person does not yield.
2 TORRES v. MADRID
Syllabus
Id., at 624–625. A review of the pertinent English and American deci-
sions confirms that the slightest touching was a constructive detention
that would complete the arrest. See, e.g., Genner v. Sparks, 6 Mod.
173, 87 Eng. Rep. 928.
The analysis does not change because the officers used force from a
distance to restrain Torres. The required “corporal seising or touching
the defendant’s body,” 3 W. Blackstone, Commentaries on the Laws of
England 288 (1768), can be as readily accomplished by a bullet as by
the end of a finger. The focus of the Fourth Amendment is “the privacy
and security of individuals,” not the particular form of governmental
intrusion. Camara v. Municipal Court of City and County of San Fran-
cisco, 387 U. S. 523, 528.
The application of force, standing alone, does not satisfy the rule
recognized in this decision. A seizure requires the use of force with
intent to restrain, as opposed to force applied by accident or for some
other purpose. County of Sacramento v. Lewis, 523 U. S. 833, 844. The
appropriate inquiry is whether the challenged conduct objectively
manifests an intent to restrain. Michigan v. Chesternut, 486 U. S. 567,
574. This test does not depend on either the subjective motivation of
the officer or the subjective perception of the suspect. Finally, a sei-
zure by force lasts only as long as the application of force unless the
suspect submits. Hodari D., 499 U. S., at 625. Pp. 3–11.
(b) In place of the rule that the application of force completes an
arrest, the officers would assess all seizures under one test: intentional
acquisition of control. This alternative approach finds support in nei-
ther the history of the Fourth Amendment nor this Court’s precedents.
Pp. 11–16.
(1) The officers attempt to recast the common law doctrine recog-
nized in Hodari D. as a rule applicable only to civil arrests. But the
common law did not define the arrest of a debtor any differently from
the arrest of a felon. Treatises and courts discussing criminal arrests
articulated a rule indistinguishable from the one applied to civil ar-
rests at common law. Pp. 11–14.
(2) The officers’ contrary test would limit seizures of a person to
“an intentional acquisition of physical control.” Brower v. County of
Inyo, 489 U. S. 593, 596. While that test properly describes seizures
by control, seizures by force enjoy a separate common law pedigree
that gives rise to a separate rule. A seizure by acquisition of control
involves either voluntary submission to a show of authority or the ter-
mination of freedom of movement. But as common law courts recog-
nized, any such requirement of control would be difficult to apply to
seizures by force. The officers’ test will often yield uncertainty about
whether an officer succeeded in gaining control over a suspect. For
centuries, the rule recognized in this opinion has avoided such line-
Cite as: 592 U. S. ____ (2021) 3
Syllabus
drawing problems. Pp. 14–16.
(c) The officers seized Torres by shooting her with the intent to re-
strain her movement. This Court does not address the reasonableness
of the seizure, the damages caused by the seizure, or the officers’ enti-
tlement to qualified immunity. Pp. 17–18.
769 Fed. Appx. 654, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER,
SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a
dissenting opinion, in which THOMAS and ALITO, JJ., joined. BARRETT, J.,
took no part in the consideration or decision of the case.
Cite as: 592 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–292
_________________
ROXANNE TORRES, PETITIONER v.
JANICE MADRID, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[March 25, 2021]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Fourth Amendment prohibits unreasonable “sei-
zures” to safeguard “[t]he right of the people to be secure in
their persons.” Under our cases, an officer seizes a person
when he uses force to apprehend her. The question in this
case is whether a seizure occurs when an officer shoots
someone who temporarily eludes capture after the shooting.
The answer is yes: 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 the person.
I
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 col-
lar crimes, but also “suspected of having been involved in
drug trafficking, murder, and other violent crimes.” App.
to Pet. for Cert. 11a. What happened next is hotly con-
tested. 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
2 TORRES v. MADRID
Opinion of the Court
Williamson, the two respondents here. Tolan v. Cotton, 572
U. S. 650, 655–656 (2014) (per curiam).
The officers observed Torres standing with another per-
son near a Toyota FJ Cruiser in the parking lot of the com-
plex. Officer Williamson concluded that neither Torres nor
her companion was the target of the warrant. As the offic-
ers approached the vehicle, the companion departed, and
Torres—at the time experiencing methamphetamine with-
drawal—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 po-
lice 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, as-
sault 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
Cite as: 592 U. S. ____ (2021) 3
Opinion of the Court
of action for the deprivation of constitutional rights by per-
sons 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 Dis-
trict 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.”
769 Fed. Appx. 654, 657 (2019). The court relied on Circuit
precedent providing that “no seizure can occur unless there
is physical touch or a show of authority,” and that “such
physical touch (or force) must terminate the suspect’s move-
ment” or otherwise give rise to physical control over the sus-
pect. Brooks v. Gaenzle, 614 F. 3d 1213, 1223 (2010).
We granted certiorari. 589 U. S. ___ (2019).
II
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” This case
concerns the “seizure” of a “person,” which can take the
form of “physical force” or a “show of authority” that “in
some way restrain[s] the liberty” of the person. Terry v.
Ohio, 392 U. S. 1, 19, n. 16 (1968). The question before us
is whether the application of physical force is a seizure if
the force, despite hitting its target, fails to stop the person.
We largely covered this ground in California v. Hodari
D., 499 U. S. 621 (1991). There we interpreted the term
“seizure” by consulting the common law of arrest, the “quin-
tessential ‘seizure of the person’ under our Fourth Amend-
ment jurisprudence.” Id., at 624. As Justice Scalia ex-
plained for himself and six other Members of the Court, the
common law treated “the mere grasping or application of
physical force with lawful authority” as an arrest, “whether
or not it succeeded in subduing the arrestee.” Ibid.; see id.,
at 625 (“merely touching” sufficient to constitute an arrest).
4 TORRES v. MADRID
Opinion of the Court
Put another way, an officer’s application of physical force to
the body of a person “ ‘for the purpose of arresting him’ ” was
itself an arrest—not an attempted arrest—even if the per-
son did not yield. Id., at 624 (quoting Whithead v. Keyes, 85
Mass. 495, 501 (1862)).
The common law distinguished the application of force
from a show of authority, such as an order for a suspect to
halt. The latter does not become an arrest unless and until
the arrestee complies with the demand. As the Court ex-
plained in Hodari D., “[a]n arrest requires either physical
force . . . or, where that is absent, submission to the asser-
tion of authority.” 499 U. S., at 626 (emphasis in original).
Hodari D. articulates two pertinent principles. First,
common law arrests are Fourth Amendment seizures. And
second, the common law considered the application of force
to the body of a person with intent to restrain to be an ar-
rest, no matter whether the arrestee escaped. We need not
decide whether Hodari D., which principally concerned a
show of authority, controls the outcome of this case as a
matter of stare decisis, because we independently reach the
same conclusions.
At the adoption of the Fourth Amendment, a “seizure”
was the “act of taking by warrant” or “of laying hold on sud-
denly”—for example, when an “officer seizes a thief.” 2 N.
Webster, An American Dictionary of the English Language
67 (1828) (Webster) (emphasis deleted). A seizure did not
necessarily result in actual control or detention. It is true
that, when speaking of property, “[f]rom the time of the
founding to the present, the word ‘seizure’ has meant a ‘tak-
ing possession.’ ” Hodari D., 499 U. S., at 624 (quoting 2
Webster 67). But the Framers selected a term—seizure—
broad enough to apply to all the concerns of the Fourth
Amendment: “persons,” as well as “houses, papers, and ef-
fects.” As applied to a person, “[t]he word ‘seizure’ readily
bears the meaning of a laying on of hands or application of
Cite as: 592 U. S. ____ (2021) 5
Opinion of the Court
physical force to restrain movement, even when it is ulti-
mately unsuccessful.” 499 U. S., at 626. Then, as now, an
ordinary user of the English language could remark: “She
seized the purse-snatcher, but he broke out of her grasp.”
Ibid.The “seizure” of a “person” plainly refers to an arrest.
That linkage existed at the founding. Samuel Johnson, for
example, defined an “arrest” as “[a]ny . . . seizure of the per-
son.” 1 A Dictionary of the English Language 108 (4th ed.
1773). And that linkage persists today. As we have repeat-
edly recognized, “the arrest of a person is quintessentially
a seizure.” Payton v. New York, 445 U. S. 573, 585 (1980)
(internal quotation marks omitted); see Hodari D., 499
U. S., at 624.
Because arrests are seizures of a person, Hodari D.
properly looked to the common law of arrest for “historical
understandings ‘of what was deemed an unreasonable
search and seizure when the Fourth Amendment was
adopted.’ ” Carpenter v. United States, 585 U. S. ___, ___
(2018) (slip op., at 6) (quoting Carroll v. United States, 267
U. S. 132, 149 (1925); alteration omitted). Sometimes the
historical record will not yield a well-settled legal rule. See,
e.g., Atwater v. Lago Vista, 532 U. S. 318, 327–328 (2001);
Payton, 445 U. S., at 593–596. We do not face that problem
here. The cases and commentary speak with virtual una-
nimity on the question before us today.
The common law rule identified in Hodari D.—that the
application of force gives rise to an arrest, even if the officer
does not secure control over the arrestee—achieved recog-
nition to such an extent that English lawyers could confi-
dently (and accurately) proclaim that “[a]ll the authorities,
from the earliest time to the present, establish that a cor-
poral touch is sufficient to constitute an arrest, even though
the defendant do not submit.” Nicholl v. Darley, 2 Y. & J.
399, 400, 148 Eng. Rep. 974 (Exch. 1828) (citing Hodges v.
Marks, Cro. Jac. 485, 79 Eng. Rep. 414 (K. B. 1615)). The
6 TORRES v. MADRID
Opinion of the Court
slightest application of force could satisfy this rule. In Gen-
ner v. Sparks, 6 Mod. 173, 87 Eng. Rep. 928 (Q. B. 1704),
the defendant did not submit to the authority of an arrest
warrant, but the court explained that the bailiff would have
made an arrest if he “had but touched the defendant even
with the end of his finger.” Ibid., 87 Eng. Rep., at 929. So
too, if a “bailiff caught one by the hand (whom he had a
warrant to arrest) as he held it out of a window,” that alone
would accomplish an arrest. Anonymus, 1 Vent. 306, 86
Eng. Rep. 197 (K. B. 1677). The touching of the person—
frequently called a laying of hands—was enough. See Dun-
scomb v. Smith, Cro. Car. 164, 79 Eng. Rep. 743 (K. B.
1629). Only later did English law grow to recognize arrest
without touching through a submission to a show of author-
ity. See Horner v. Battyn, Bull. N. P. 62 (K. B. 1738), re-
printed in W. Loyd, Cases on Civil Procedure 798 (1916).
Even so, the traditional rule persisted that all an arrest re-
quired was “corporal seising or touching the defendant’s
body.” 3 W. Blackstone, Commentaries on the Laws of Eng-
land 288 (1768) (Blackstone).
Early American courts adopted this mere-touch rule from
England, just as they embraced other common law princi-
ples of search and seizure. See Wilson v. Arkansas, 514
U. S. 927, 933 (1995). Justice Baldwin, instructing a jury
in his capacity as Circuit Justice, defined an arrest to in-
clude “touching or putting hands upon [the arrestee] in the
execution of process.” United States v. Benner, 24 F. Cas.
1084, 1086–1087 (No. 14,568) (CC ED Pa. 1830). State
courts agreed that “any touching, however slight, is
enough,” Butler v. Washburn, 25 N. H. 251, 258 (1852), pro-
vided the officer made his intent to arrest clear, see Jones
v. Jones, 35 N. C. 448, 448–449 (1852). Courts continued to
hold that an arrest required only the application of force—
not control or custody—through the framing of the Four-
teenth Amendment, which incorporated the protections of
the Fourth Amendment against the States. See Whithead,
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Opinion of the Court
85 Mass., at 501; Searls v. Viets, 2 Thomp. & C. 224, 226
(N. Y. Sup. Ct. 1873); State v. Dennis, 16 Del. 433, 436–437,
43 A. 261, 262 (1895); see also H. Voorhees, The Law of Ar-
rest in Civil and Criminal Actions §74, p. 44 (1904).
Stated simply, the cases “abundantly shew that the
slightest touch [was] an arrest in point of law.” Nicholl, 2
Y. & J., at 404, 148 Eng. Rep., at 976. Indeed, it was not
even required that the officer have, at the time of such an
arrest, “the power of keeping the party so arrested under
restraint.” Sandon v. Jervis, El. Bl. & El. 935, 940, 120 Eng.
Rep. 758, 760 (Q. B. 1858). The consequences would be
“pernicious,” an English judge worried, if the question of
control “were perpetually to be submitted to a jury.” Ibid.;
cf. 3 Blackstone 120 (describing how “[t]he least touching of
another’s person” could satisfy the common law definition
of force to commit battery, “for the law cannot draw the line
between different degrees of violence”).
This case, of course, does not involve “laying hands,”
Sheriff v. Godfrey, 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B.
1739), but instead a shooting. Neither the parties nor the
United States as amicus curiae suggests that the officers’
use of bullets to restrain Torres alters the analysis in any
way. And we are aware of no common law authority ad-
dressing an arrest under such circumstances, or indeed any
case involving an application of force from a distance.
The closest decision seems to be Countess of Rutland’s
Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber
1605). In that case, serjeants-at-mace tracked down Isabel
Holcroft, Countess of Rutland, to execute a writ for a judg-
ment of debt. They “shewed her their mace, and touching
her body with it, said to her, we arrest you, madam.” Id.,
at 54a, 77 Eng. Rep., at 336. We think the case is best un-
derstood as an example of an arrest made by touching with
an object, for the serjeants-at-mace announced the arrest at
the time they touched the countess with the mace. See, e.g.,
8 TORRES v. MADRID
Opinion of the Court
Hodges, Cro. Jac., at 485, 79 Eng. Rep., at 414 (similar an-
nouncement upon laying of hands). Maybe the arrest could
be viewed as a submission to a show of authority, because a
mace served not only as a weapon but also as an insignia of
office. See Kelly, The Great Mace, and Other Corporation
Insignia of the Borough of Leicester, 3 Transactions of the
Royal Hist. Soc. 295, 296–301 (1874). But that view is dif-
ficult to reconcile with the fact that English courts did not
recognize arrest by submission to a show of authority until
the following century. See supra, at 6.*
However one reads Countess of Rutland, we see no basis
for drawing an artificial line between grasping with a hand
and other means of applying physical force to effect an ar-
rest. The dissent (though not the officers) argues that the
common law limited arrests by force to the literal place-
ment of hands on the suspect, because no court published
an opinion discussing a suspect who continued to flee after
being hit with a bullet or some other weapon. See post, at
18–20 (opinion of GORSUCH, J.). This objection calls to mind
the unavailing defense of the person who “persistently de-
nied that he had laid hands upon a priest, for he had only
cudgelled and kicked him.” 2 S. Pufendorf, De Jure Natu-
rae et Gentium 795 (C. Oldfather & W. Oldfather transl.
1934). The required “corporal seising or touching the de-
fendant’s body” can be as readily accomplished by a bullet
as by the end of a finger. 3 Blackstone 288.
We will not carve out this greater intrusion on personal
security from the mere-touch rule just because founding-
——————
*The arrest was not Isabel’s first brush with the law or money trou-
bles. A decade earlier, Elizabeth Charlton sued to recover for the estate
of her husband, the fourth Earl of Rutland, an assortment of jewels al-
legedly taken by Isabel, the widow of the third Earl of Rutland. Eliza-
beth bested Isabel in the clash of the countesses, and Isabel was found
liable for 940 pounds, worth about $400,000 today. Elizabeth Countess
of Rutland v. Isabel Countess of Rutland, Cro. Eliz. 377, 78 Eng. Rep. 624
(C. P. 1595).
Cite as: 592 U. S. ____ (2021) 9
Opinion of the Court
era courts did not confront apprehension by firearm. While
firearms have existed for a millennium and were certainly
familiar at the founding, we have observed that law en-
forcement did not carry handguns until the latter half of the
19th century, at which point “it bec[a]me possible to use
deadly force from a distance as a means of apprehension.”
Tennessee v. Garner, 471 U. S. 1, 14–15 (1985). So it should
come as no surprise that neither we nor the dissent has lo-
cated a common law case in which an officer used a gun to
apprehend a suspect. Cf. post, at 20 (discussing Dickenson
v. Watson, Jones, T. 205, 84 Eng. Rep. 1218, 1218–1219
(K. B. 1682), in which a tax collector accidentally dis-
charged hailshot into a passerby’s eye). But the focus of the
Fourth Amendment is “the privacy and security of individ-
uals,” not the particular manner of “arbitrary invasion[ ] by
governmental officials.” Camara v. Municipal Court of City
and County of San Francisco, 387 U. S. 523, 528 (1967). As
noted, our precedent protects “that degree of privacy
against government that existed when the Fourth Amend-
ment was adopted,” Kyllo v. United States, 533 U. S. 27, 34
(2001)—a protection that extends to “[s]ubtler and more
far-reaching means of invading privacy” adopted only later,
Olmstead v. United States, 277 U. S. 438, 473 (1928)
(Brandeis, J., dissenting). There is nothing subtle about a
bullet, but the Fourth Amendment preserves personal se-
curity with respect to methods of apprehension old and new.
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 qual-
ify. 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. We do not accept the dissent’s in-
vitation to opine on matters not presented here—pepper
10 TORRES v. MADRID
Opinion of the Court
spray, flash-bang grenades, lasers, and more. Post, at 23.
Moreover, the appropriate inquiry is whether the chal-
lenged conduct objectively manifests an intent to restrain,
for we rarely probe the subjective motivations of police of-
ficers in the Fourth Amendment context. See Nieves v.
Bartlett, 587 U. S. ___, ___ (2019) (slip op., at 10). Only an
objective test “allows the police to determine in advance
whether the conduct contemplated will implicate the
Fourth Amendment.” Michigan v. Chesternut, 486 U. S.
567, 574 (1988). While a mere touch can be enough for a
seizure, the amount of force remains pertinent in assessing
the objective intent to restrain. A tap on the shoulder to get
one’s attention will rarely exhibit such an intent. See INS
v. Delgado, 466 U. S. 210, 220 (1984); Jones, 35 N. C., at
448–449.
Nor does the seizure depend on the subjective perceptions
of the seized person. Here, for example, Torres claims to
have perceived the officers’ actions as an attempted carjack-
ing. But the conduct of the officers—ordering Torres to stop
and then shooting to restrain her movement—satisfies the
objective test for a seizure, regardless whether Torres com-
prehended the governmental character of their actions.
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 recog-
nize 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 de-
fendant may exclude from trial. See, e.g., Utah v. Strieff,
579 U. S. ___, ___ (2016) (slip op., at 4). But brief seizures
are seizures all the same.
Applying these principles to the facts viewed in the light
most favorable to Torres, the officers’ shooting applied
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Opinion of the Court
physical force to her body and objectively manifested an in-
tent to restrain her from driving away. We therefore con-
clude that the officers seized Torres for the instant that the
bullets struck her.
III
In place of the rule that the application of force completes
an arrest even if the arrestee eludes custody, the officers
would introduce a single test for all types of seizures: inten-
tional acquisition of control. This alternative rule is incon-
sistent with the history of the Fourth Amendment and our
cases.
A
The officers and their amici stress that common law rules
are not automatically “elevated to constitutional proscrip-
tions,” Hodari D., 499 U. S., at 626, n. 2, especially if they
are “distorted almost beyond recognition when literally ap-
plied,” Garner, 471 U. S., at 15. In their view, the common
law doctrine recognized in Hodari D. is just “a narrow legal
rule intended to govern liability in civil cases involving
debtors.” Brief for National Association of Counties et al.
as Amici Curiae 12. The dissent presses the same argu-
ment. See post, at 14–17.
But the common law did not define the arrest of a debtor
any differently from the arrest of a felon. Whether the ar-
rest was authorized by a criminal indictment or a civil writ,
“there must be a corporal seizing, or touching the defend-
ant’s person; or, what is tantamount, a power of taking im-
mediate possession of the body, and the party’s submission
thereto, and a declaration of the officer that he makes an
arrest.” 1 J. Backus, A Digest of Laws Relating to the Of-
fices and Duties of Sheriff, Coroner and Constable 115–116
(1812). Treatises on the law governing criminal arrests
cited Genner v. Sparks, 6 Mod. 173, 87 Eng. Rep. 928—the
preeminent mere-touch case involving a debtor—for the
12 TORRES v. MADRID
Opinion of the Court
proposition that, “[i]n making the arrest, the constable or
party making it should actually seize or touch the offender’s
body, or otherwise restrain his liberty.” 1 R. Burn, The Jus-
tice of the Peace 275 (28th ed. 1837). When English courts
confronted arrests for criminal offenses, they too relied on
precedents concerning arrests for civil offenses. See
Bridgett v. Coyney, 1 Man. & Ryl. 1, 5–6 (K. B. 1827); Ar-
rowsmith v. Le Mesurier, 2 Bos. & Pul. 211, 211–212, 127
Eng. Rep. 605, 606 (C. P. 1806). American courts likewise
articulated a materially identical definition in criminal
cases—that “[t]he arrest itself is the laying hands on the
defendant,” State v. Townsend, 5 Del. 487, 488 (Ct. Gen.
Sess. 1854), or that an arrest is “the taking, seizing, or de-
taining of the person of another, either by touching him or
putting hands on him,” McAdams v. State, 30 Okla. Crim.
207, 210, 235 P. 241, 242 (1925).
This uniform definition also explains why an arrest by
mere touch carried legal consequences in both the criminal
and civil contexts. The point of an arrest was of course to
take custody of a person to secure his appearance at a pro-
ceeding. But some arrests did not culminate in actual con-
trol of the individual, let alone a trip to the gaol or compter.
See Nicholl, 2 Y. & J., at 403–404, 148 Eng. Rep., at 975–
976. When an officer let an arrestee get away, the officer
risked becoming a defendant himself in an action for “es-
cape.” See Perkins, The Law of Arrest, 25 Iowa L. Rev. 201,
204 (1940). The laying of hands constituted a taking cus-
tody and would expose the officer to liability for the escape
of felons and debtors alike. See 1 M. Hale, Pleas of the
Crown 590–591, 597, 603 (1736); 2 id., at 93 (no liability for
escape “if the felon were not once in the hands of an officer”);
see also Perkins, 25 Iowa L. Rev., at 206.
The tort of false imprisonment, which the dissent rightly
acknowledges as the “ ‘closest analogy’ to an arrest without
probable cause,” post, at 12 (quoting Wallace v. Kato, 549
U. S. 384, 388–389 (2007)), reinforces the conclusion that
Cite as: 592 U. S. ____ (2021) 13
Opinion of the Court
the common law considered touching to be a seizure. Stated
generally, false imprisonment required “confinement,” such
as “taking a person into custody under an asserted legal au-
thority.” Restatement of Torts §§35, 41 (1934); see 3 Black-
stone 127. But that element of confinement demanded no
more than that the defendant “had for one moment taken
possession of the plaintiff ’s person”—including, “for exam-
ple, if he had tapped her on the shoulder, and said, ‘You are
my prisoner.’ ” Simpson v. Hill, 1 Esp. 431, 431–432, 170
Eng. Rep. 409 (N. P. 1795); see Restatement of Torts §41,
Comment h (noting that “the touching alone of the person
against whom [legal authority] was asserted would be suf-
ficient to constitute” confinement by arrest when the au-
thority was valid). While the dissent emphasizes that “the
court [in Simpson] proceeded to reject the plaintiff ’s claim
for false imprisonment,” post, at 13, that was only because
“the constable never touched the plaintiff, or took her into
custody.” 1 Esp., at 431, 170 Eng. Rep., at 409.
To be sure, the mere-touch rule was particularly well doc-
umented in cases involving the execution of civil process.
An officer pursuing a debtor could not forcibly enter the
debtor’s home unless the debtor had escaped arrest, such as
by fleeing after being touched. See Semayne’s Case, 5 Co.
Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1604); see also
Miller v. United States, 357 U. S. 301, 307 (1958). Officers
seeking to execute criminal process, on the other hand, pos-
sessed greater pre-arrest authority to enter a felon’s home.
See Payton, 445 U. S., at 598. But the fact that the common
law rules of arrest generated more litigation in the civil con-
text proves only that creditors had ready recourse to the
courts to pursue escape actions for unsatisfactory arrests.
There is no reason to suspect that English jurists silently
adopted a special definition of arrest only for debt collec-
tion—indeed, they told us just the opposite. See supra, at
12. Nothing specific to debt collection elevated escape from
arrest into a justification for entry of the home. Whenever
14 TORRES v. MADRID
Opinion of the Court
a person was “lawfully arrested for any Cause and after-
wards escape[d], and shelter[ed] himself in a House,” the
officer could break open the doors of the house. 2 W. Haw-
kins, Pleas of the Crown 87 (1721) (emphasis added).
In any event, the officers and the dissent misapprehend
the history of the Fourth Amendment by minimizing the
role of practices in civil cases. “[A]rrests in civil suits were
still common in America” at the founding. Long v. Ansell,
293 U. S. 76, 83 (1934). And questions regarding the legal-
ity of an arrest “typically arose in civil damages actions for
trespass or false arrest.” Payton, 445 U. S., at 592. Accord-
ingly, this Court has not hesitated to rely on such decisions
when interpreting the Fourth Amendment. See, e.g.,
United States v. Jones, 565 U. S. 400, 404–405 (2012); Boyd
v. United States, 116 U. S. 616, 626 (1886). We see no rea-
son to break with our settled approach in this case.
B
The officers and the dissent derive from our cases a dif-
ferent touchstone for the seizure of a person: “an intentional
acquisition of physical control.” Brower v. County of Inyo,
489 U. S. 593, 596 (1989). Under their alternative rule, the
use of force becomes a seizure “only when there is a govern-
mental termination of freedom of movement through means
intentionally applied.” Id., at 597 (emphasis deleted); see
Brief for Respondents 12–15; post, at 6–7.
This approach improperly erases the distinction between
seizures by control and seizures by force. In all fairness, we
too have not always been attentive to this distinction when
a case did not implicate the issue. See, e.g., Brendlin v. Cal-
ifornia, 551 U. S. 249, 254 (2007). But each type of seizure
enjoys a separate common law pedigree that gives rise to a
separate rule. See Hodari D., 499 U. S., at 624–625; A. Cor-
nelius, The Law of Search and Seizure §47, pp. 163–164 (2d
ed. 1930) (contrasting actual control with “constructive de-
tention” by touching).
Cite as: 592 U. S. ____ (2021) 15
Opinion of the Court
Unlike a seizure by force, a seizure by acquisition of con-
trol involves either voluntary submission to a show of au-
thority or the termination of freedom of movement. A prime
example of the latter comes from Brower, where the police
seized a driver when he crashed into their roadblock. 489
U. S., at 598–599; see also, e.g., Scott v. Harris, 550 U. S.
372, 385 (2007) (ramming car off road); Williams v. Jones,
Cas. t. Hard. 299, 301, 95 Eng. Rep. 193, 194 (K. B. 1736)
(locking person in room). Under the common law rules of
arrest, actual control is a necessary element for this type of
seizure. See Wilgus, Arrest Without a Warrant, 22 Mich.
L. Rev. 541, 553 (1924). Such a seizure requires that “a per-
son be stopped by the very instrumentality set in motion or
put in place in order to achieve that result.” Brower, 489
U. S., at 599. But that requirement of control or submission
never extended to seizures by force. See, e.g., Sandon, El.
Bl. & El., at 940–941, 120 Eng. Rep., at 760.
As common law courts recognized, any such requirement
of control would be difficult to apply in cases involving the
application of force. See supra, at 7. At the most basic level,
it will often be unclear when an officer succeeds in gaining
control over a struggling suspect. Courts will puzzle over
whether an officer exercises control when he grabs a sus-
pect, when he tackles him, or only when he slaps on the
cuffs. Neither the officers nor the dissent explains how long
the control must be maintained—only for a moment, into
the squad car, or all the way to the station house. To cite
another example, counsel for the officers speculated that
the shooting would have been a seizure if Torres stopped
“maybe 50 feet” or “half a block” from the scene of the shoot-
ing to allow the officers to promptly acquire control. Tr. of
Oral Arg. 45. None of this squares with our recognition that
“ ‘[a] seizure is a single act, and not a continuous fact.’ ” Ho-
dari D., 499 U. S., at 625 (quoting Thompson v. Whitman,
18 Wall. 457, 471 (1874)). For centuries, the common law
16 TORRES v. MADRID
Opinion of the Court
rule has avoided such line-drawing problems by clearly fix-
ing the moment of the seizure.
IV
The dissent sees things differently. It insists that the
term “seizure” has always entailed a taking of possession,
whether the officer is seizing a person, a ship, or a promis-
sory note. See post, at 6–7. But the facts of the cases and
the language of the opinions confirm that the concept of pos-
session included the “constructive detention” of persons
“never actually brought within the physical control of the
party making an arrest.” Wilgus, 22 Mich. L. Rev., at 556
(emphasis deleted); see, e.g., Nicholl, 2 Y. & J., at 404, 148
Eng. Rep., at 976 (explaining that the “slightest touch” can
constitute “custody”); Anonymus, 1 Vent., at 306, 86 Eng.
Rep., at 197 (describing a touch as a “taking” of a person).
Even the dissent acknowledges that a touch can establish a
form of constructive possession. See post, at 20.
The dissent says that “common law courts never contem-
plated” that the touching itself could effect a seizure. Post,
at 18. But one need only look at the many decisions adopt-
ing that definition of arrest. See supra, at 5–8, 12–13. The
dissent can offer no case expressing doubt about the rule
that the touching constitutes an arrest, much less refusing
to apply that rule in any context—felon or debtor. And we
have, as noted, definitively stated that “the arrest of a per-
son is quintessentially a seizure.” Payton, 445 U. S., at 585(internal quotation marks omitted). The dissent’s attempt
to ignore arrests it appraises as “unfortunate” or “peculiar,”
post, at 15, 16, pays insufficient regard to the complete his-
tory underlying the Fourth Amendment.
The dissent argues that we advance a “schizophrenic
reading of the word ‘seizure.’ ” Post, at 7. But our cases
demonstrate the unremarkable proposition that the nature
of a seizure can depend on the nature of the object being
seized. It is not surprising that the concept of constructive
Cite as: 592 U. S. ____ (2021) 17
Opinion of the Court
detention or the mere-touch rule developed in the context
of seizures of a person—capable of fleeing and with an in-
terest in doing so—rather than seizures of “houses, papers,
and effects.”
The dissent also criticizes us for “posit[ing] penumbras”
of “privacy” and “personal security” in our analysis of the
Fourth Amendment. Post, at 24. But the text of the Fourth
Amendment expressly guarantees the “right of the people
to be secure in their persons,” and our earliest precedents
recognized privacy as the “essence” of the Amendment—not
some penumbral emanation. Boyd, 116 U. S., at 630. We
have relied on that understanding in construing the mean-
ing of the Amendment. See, e.g., Riley v. California, 573
U. S. 373, 403 (2014).
The dissent speculates that the real reason for today’s de-
cision is an “impulse” to provide relief to Torres, post, at 23,
or maybe a desire “to make life easier for ourselves,” post,
at 22. It may even be, says the dissent, that the Court “at
least hopes to be seen as trying” to achieve particular goals.
Post, at 25. There is no call for such surmise. At the end of
the day we simply agree with the analysis of the common
law of arrest and its relation to the Fourth Amendment set
forth thirty years ago by Justice Scalia, joined by six of his
colleagues, rather than the competing view urged by the
dissent today.
* * *
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 re-
garding the reasonableness of the seizure, the damages
18 TORRES v. MADRID
Opinion of the Court
caused by the seizure, and the officers’ entitlement to qual-
ified immunity.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
JUSTICE BARRETT took no part in the consideration or de-
cision of this case.
Cite as: 592 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–292
_________________
ROXANNE TORRES, PETITIONER v.
JANICE MADRID, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[March 25, 2021]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
The majority holds that a criminal suspect can be simul-
taneously seized and roaming at large. On the majority’s
account, a Fourth Amendment “seizure” takes place when-
ever an officer “merely touches” a suspect. It’s a seizure
even if the suspect refuses to stop, evades capture, and rides
off into the sunset never to be seen again. That view is as
mistaken as it is novel.
Until today, a Fourth Amendment “seizure” has required
taking possession of someone or something. To reach its
contrary judgment, the majority must conflate a seizure
with its attempt and confuse an arrest with a battery. In
the process, too, the majority must disregard the Constitu-
tion’s original and ordinary meaning, dispense with our
conventional interpretive rules, and bypass the main cur-
rents of the common law. Unable to rely on any of these
traditional sources of authority, the majority is left to lean
on (really, repurpose) an abusive and long-abandoned Eng-
lish debt-collection practice. But there is a reason why, in
two centuries filled with litigation over the Fourth Amend-
ment’s meaning, this Court has never before adopted the
majority’s definition of a “seizure.” Neither the Constitu-
tion nor common sense can sustain it.
2 TORRES v. MADRID
GORSUCH, J., dissenting
I
A
This case began when two Albuquerque police officers ap-
proached Roxanne Torres on foot. The officers thought
Ms. Torres was the subject of an arrest warrant and sus-
pected of involvement in murder and drug trafficking. As
it turned out, they had the wrong person; Ms. Torres was
the subject of a different arrest warrant. As she saw the
officers walk toward her, Ms. Torres responded by getting
into her car and hitting the gas. At the time, Ms. Torres
admits, she was “tripping out bad” on methamphetamine.
Fearing the oncoming car was about to hit them, the officers
fired their duty weapons, and two bullets struck Ms. Torres
while others hit her car.
None of that stopped Ms. Torres. She continued driv-
ing—over a curb, across some landscaping, and into a
street, eventually colliding with another vehicle. Abandon-
ing her car, she promptly stole a different one parked
nearby. Ms. Torres then drove over 75 miles to another city.
When she eventually sought medical treatment, doctors de-
cided she needed to be airlifted back to Albuquerque for
more intensive care. Only at that point, a day after her en-
counter with the officers, was Ms. Torres finally identified
and arrested. Ultimately, she pleaded no contest to assault
on a police officer, aggravated fleeing from an officer, and
the unlawful taking of a motor vehicle.
More than two years later, Ms. Torres sued the officers
for damages in federal court under 42 U. S. C. §1983. She
alleged that they had violated the Fourth Amendment by
unreasonably “seizing” her. After discovery, the officers
moved for summary judgment. The district court granted
the motion, and the court of appeals affirmed. Individuals
like Ms. Torres are free to sue officers under New Mexico
state law for assault or battery. They may also sue officers
under the Fourteenth Amendment for conduct that “shocks
the conscience.” But under longstanding circuit precedent,
Cite as: 592 U. S. ____ (2021) 3
GORSUCH, J., dissenting
the courts explained, a Fourth Amendment “seizure” occurs
only when the government obtains “physical control” over a
person or object. Because Ms. Torres “managed to elude the
police for at least a full day after being shot,” the courts rea-
soned, the officers’ bullets had not “seized” her; any seizure
took place only when she was finally arrested back in Albu-
querque the following day. Torres v. Madrid, 769 Fed.
Appx. 654, 657 (CA10 2019).
B
Now before us, Ms. Torres argues that this Court’s deci-
sion in California v. Hodari D., 499 U. S. 621 (1991), “com-
pel[s] reversal.” Brief for Petitioner 25. As she reads it,
Hodari D. held that a Fourth Amendment seizure takes
place whenever an officer shoots or even “mere[ly]
touch[es]” an individual with the intent to restrain. Brief
for Petitioner 15.
Whatever one thinks of Ms. Torres’s argument, one thing
is certain: Hodari D. has generated considerable confusion.
There, officers chased a suspect on foot. 499 U. S., at 623.
Later, the suspect argued that he was “seized” for purposes
of the Fourth Amendment the moment the chase began.
See id., at 625. Though he fled, the suspect argued, a “rea-
sonable person” would not have felt at liberty given the of-
ficers’ “show of authority,” so a Fourth Amendment seizure
had occurred. Id., at 627–628.
The Court rejected this argument. In doing so, it ex-
plained that, “[f]rom the time of the founding to the present,
the word ‘seizure’ has meant a ‘taking possession.’ ” Id., at
624. Because the defendant did not submit to the officers’
show of authority, the Court reasoned, the officers’ conduct
amounted at most to an attempted seizure. See id., at 626,
and n. 2. And “neither usage nor common-law tradition
makes an attempted seizure a seizure.” Ibid.At the same time, and as Ms. Torres emphasizes, the
4 TORRES v. MADRID
GORSUCH, J., dissenting
Court didn’t end its discussion there. It proceeded to imag-
ine a different and hypothetical case, one in which the offic-
ers not only chased the suspect but also “appl[ied] physical
force” to him. In these circumstances, the Court suggested,
“merely touching” a suspect, even when officers fail to gain
possession, might qualify as a seizure. Id., at 624–625.
Unsurprisingly, these dueling passages in Hodari D. led
to a circuit split. For the first time, some lower courts began
holding that a “mere touch” constitutes a Fourth Amend-
ment “seizure.” Others, however, continued to adhere to
the view, taken “[f]rom the time of the founding to the pre-
sent,” that the word “seizure” means “taking possession.”
Id., at 624 (internal quotation marks omitted). We took this
case to sort out the confusion.
II
As an initial matter, Ms. Torres is mistaken that Hodari
D.’s discussion of “mere touch” seizures compels a ruling in
her favor. Under the doctrine of stare decisis, we normally
afford prior holdings of this Court considerable respect.
But, in the course of issuing their holdings, judges some-
times include a “witty opening paragraph, the background
information on how the law developed,” or “digressions
speculating on how similar hypothetical cases might be re-
solved.” B. Garner et al., The Law of Judicial Precedent 44
(2016). Such asides are dicta. The label is hardly an epi-
thet: “Dicta may afford litigants the benefit of a fuller un-
derstanding of the court’s decisional path or related areas
of concern.” Id., at 65. Dicta can also “be a source of advice
to successors.” Ibid. But whatever utility it may have, dicta
cannot bind future courts.
This ancient rule serves important purposes. A passage
unnecessary to the outcome may not be fully considered.
Parties with little at stake in a hypothetical question may
afford it little or no adversarial testing. And, of course, fed-
eral courts possess no authority to issue rulings beyond the
Cite as: 592 U. S. ____ (2021) 5
GORSUCH, J., dissenting
cases and controversies before them. If the respect we af-
ford past holdings under the doctrine of stare decisis may
be justified in part as an act of judicial humility, respecting
that doctrine’s limits must be too. Fewer things could be
less humble than insisting our every passing surmise con-
stitutes a rule forever binding a Nation of over 300 million
people. No judge can see around every corner, predict the
future, or fairly resolve matters not at issue. See, e.g., Co-
hens v. Virginia, 6 Wheat. 264, 399–400 (1821); Central Va.
Community College v. Katz, 546 U. S. 356, 363 (2006).
On any account, the passage in Hodari D. Ms. Torres
seeks to invoke was dicta. The only question presented in
that case was whether officers seize a defendant by a show
of authority without touching him. The Court answered
that question in the negative. The separate question
whether a “mere touch” also qualifies as a seizure was not
presented by facts of the case. No party briefed the issue.
And the opinion offered the matter only shallow considera-
tion, resting on just three sources: A state court opinion
from the 1860s, a “comment” in the 1934 Restatement of
Torts, and a 1930s legal treatise. See 499 U. S., at 624–625.
Already some lower courts, including those below, have
recognized that Hodari D.’s aside does not constitute a
binding holding. See Brooks v. Gaenzle, 614 F. 3d 1213,
1220–1221 (CA10 2010); Henson v. United States, 55 A. 3d
859, 864–865 (D. C. 2012). Today’s majority seems to ac-
cept the point too. It acknowledges that Hodari D. “princi-
pally concerned a show of authority.” Ante, at 4. And it
says it intends to rule for Ms. Torres “independently” of Ho-
dari D. Ante, at 4.
III
Seeking to carry that burden, the majority picks up where
Hodari D.’s dicta left off. It contends that an officer “seizes”
a person by merely touching him with an “intent to re-
strain.” Ante, at 9. We are told that a touch is a seizure
6 TORRES v. MADRID
GORSUCH, J., dissenting
even if the suspect never stops or slows down; it’s a seizure
even if he evades capture. In all the years before Hodari
D.’s dicta, this conclusion would have sounded more than a
little improbable to most lawyers and judges—as it should
still today. 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 pos-
session.
A
Start with the text. The Fourth Amendment guarantees
that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” As at least part of Ho-
dari D. recognized, “[f ]rom the time of the founding to the
present,” the key term here—“seizure”—has always meant
“ ‘taking possession.’ ” 499 U. S., at 624.
Countless contemporary dictionaries define a “seizure” or
the act of “seizing” in terms of possession.1 This Court’s
early cases reflect the same understanding. Just sixteen
——————
1 N. Bailey, Universal Etymological English Dictionary (22 ed. 1770)
(To seize is “to take into Custody or Possession by Force, or wrongfully;
to distrain, to attack, to lay hold of, or catch”; a seizure is a “seizing, tak-
ing into Custody”); T. Dyche & W. Pardon, A New General English Dic-
tionary (14th ed. 1771) (To seize is “to lay or take hold of violently or at
unawares, wrongfully, or by force”; a seizing or seizure is “a taking pos-
session of any thing by violent, force, &c”); 2 S. Johnson, A Dictionary of
the English Language (6th ed. 1785) (To seize is “1. To take hold of; to
gripe; to grasp.” “2. To take possession of by force.” “3. To take possession
of; to lay hold on; to invade suddenly.” “4. To take forcible possession of
by law.” “5. To make possessed; to put in possession of.” A seizure is “1.
The act of seizing.” “2. The thing seized.” “3. The act of taking forcible
possession.” “4. Gripe; possession.” “5. Catch”); 2 J. Ash, The New and
Complete Dictionary of the English Language (2d ed. 1795) (To seize is
“[t]o grasp, to lay hold on, to fasten on, to take possession of, to take pos-
session by law”; a seizure is “[t]he act of seizing, a gripe, a catch; the act
of taking possession by force of law; the thing seized, the thing pos-
sessed”).
Cite as: 592 U. S. ____ (2021) 7
GORSUCH, J., dissenting
years after the Fourth Amendment’s adoption, Congress
passed a statute regulating the “seizure” of ships. See The
Josefa Segunda, 10 Wheat. 312, 322 (1825). This Court in-
terpreted the term to require “an open, visible possession
claimed,” so that those previously possessing the ship “un-
derstand that they are dispossessed, and that they are no
longer at liberty to exercise any dominion on board of the
ship.” Id., at 325. Nor did the Court’s view change over
time. In Pelham v. Rose, 9 Wall. 103, 106 (1870), the Court
likewise explained that “[t]o effect [a] seizure” of something,
one needed “to take” the thing “into his actual custody and
control.” Id., at 107.
Today’s majority disputes none of this. It accepts that a
seizure of the inanimate objects mentioned in the Fourth
Amendment (houses, papers, and effects) requires posses-
sion. Ante, at 4. And when it comes to persons, the majority
agrees (as Hodari D. held) that a seizure in response to a
“show of authority” takes place if and when the suspect sub-
mits to an officer’s possession. Ante, at 15. The majority
insists that a different rule should apply only in cases
where an officer “touches” the suspect. Here—and here
alone—possession is not required. 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 some-
thing has gone seriously wrong. The Fourth Amendment’s
Search and Seizure Clause uses the word “seizures” once in
connection with four objects (persons, houses, papers, and
effects). The text thus suggests parity, not disparity, in
meaning. It is close to canon that when a provision uses the
same word multiple times, courts must give it the same
meaning each time. Ratzlaf v. United States, 510 U. S. 135,
143 (1994). And it is canonical that courts cannot give a
8 TORRES v. MADRID
GORSUCH, J., dissenting
single word different meanings depending on the happen-
stance of “which object it is modifying.” Reno v. Bossier Par-
ish School Bd., 528 U. S. 320, 329 (2000) (“[W]e refuse to
adopt a construction that would attribute different mean-
ings to the same phrase in the same sentence, depending on
which object it is modifying”). To “[a]scrib[e] various mean-
ings” to a single word, we have observed, is to “render mean-
ing so malleable” that written laws risk “becom[ing] suscep-
tible to individuated interpretation.” Ratzlaf, 510 U. S., at
143 (internal quotation marks omitted). The majority’s con-
clusion that a single use of the word “seizures” bears two
different meanings at the same time—indeed, in this very
case—is truly novel. And when it comes to construing the
Constitution, that kind of innovation is no virtue.
If more textual evidence were needed, the Fourth Amend-
ment’s neighboring Warrant Clause would seem to provide
it. That Clause states that warrants must describe “the
persons or things to be seized.” Once more, the Amendment
uses the same verb—“seized”—for both persons and objects.
Once more, it suggests parity, not some hidden divergence
between people and their possessions. Nor does anyone dis-
pute that a warrant for the “seizure” of a person means a
warrant authorizing officers to take that person into their
possession.
Against all these adverse textual clues, the majority of-
fers little in reply. It admits that its interpretation defies
this Court’s teachings in Ratzlaf and Reno by ascribing dif-
ferent meanings to the word “seizure” depending on “the ob-
ject being seized.” Ante, at 16. It says only that we should
overlook the problem because “our cases” in the Fourth
Amendment context compel this remarkable construction.
Ibid. But it is unclear what cases the majority might have
in mind for it cites none.
Instead, the 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
Cite as: 592 U. S. ____ (2021) 9
GORSUCH, J., dissenting
have “an interest in doing so.” Ibid. But that reasoning
faces trouble even from Hodari D., which explained that “[a]
ship still fleeing, even though under attack, would not be
considered to have been seized as a war prize.” 499 U. S.,
at 624. Of course, as the majority observes, persons alone
can possess “an interest” in fleeing. But, as Hodari D.’s ex-
ample shows, they can have as much (or more) interest in
fleeing to prevent the seizure of their possessions as they do
their persons. Even today, a suspect driving a car loaded
with illegal drugs may be more interested in fleeing to avoid
the loss of her valuable cargo than to prevent her own de-
tention. Yet the majority offers no reasoned explanation
why the meaning of the word “seizure” changes when offic-
ers hit the suspect and when they hit her drugs and car as
all three speed away.
Unable to muster any precedent or sound reason for its
reading, the majority finishes its textual analysis with a se-
lective snippet from Webster’s Dictionary and a hypothet-
ical about a purse snatching. The majority notes that Web-
ster equated a seizure with “ ‘the act of taking by warrant’ ”
or “ ‘laying hold on suddenly.’ ” Ante, at 4. But Webster used
the warrant definition to describe “the seizure of contra-
band goods”—a seizure the majority agrees requires posses-
sion. Meanwhile, the phrase “laying hold on” a person con-
notes physical possession, as a look at the dictionary’s
entire definition demonstrates. A “seizure,” Webster con-
tinued, is the “act of taking possession by force,” the “act of
taking by warrant,” “possession,” and “a catching.”2 Read
——————
2 2 N. Webster, An American Dictionary of the English Language 67
(1828) (To seize is “1. To fall or rush upon suddenly and lay hold on; or
to gripe or grasp suddenly.” “2. To take possession by force, with or with-
out right.” “3. To invade suddenly; to take hold of; to come upon suddenly;
as, a fever seizes a patient.” “4. To take possession by virtue of a warrant
or legal authority.” To be seized is to be “[s]uddenly caught or grasped;
taken by force; invaded suddenly; taken possession of; fastened with a
cord; having possession.” A seizure is “1. The act of seizing; the act of
laying hold on suddenly; as the seizure of a thief. 2. The act of taking
10 TORRES v. MADRID
GORSUCH, J., dissenting
in full, Webster thus lends no support to the majority’s
view.
The purse hypothetical, borrowed from Hodari D.’s dicta,
turns out to be even less illuminating. It supposes that “an
ordinary user of the English language could remark: ‘She
seized the purse-snatcher, but he broke out of her grasp.’ ”
Ante, at 5 (quoting Hodari D., 499 U. S., at 626). But what
does that prove? The hypothetical contemplates a woman
who takes possession of the purse-snatcher, establishing a
“grasp” for him to “break out of.” One doesn’t “break out of ”
a mere touch.
Really, the majority’s answer to the Constitution’s text is
to ignore it. The majority stands mute before the consensus
among founding-era dictionaries, this Court’s early cases
interpreting the word “seizure,” and the Warrant Clause.
It admits its interpretation spurns the canonical interpre-
tive principle that a single word in a legal text does not
change its meaning depending on what object it modifies.
All we’re offered is a curated snippet and an unhelpful hy-
pothetical. Ultimately, it’s hard not to wonder whether the
majority says so little about the Constitution’s terms be-
cause so little can be said that might support its ruling.
B
Rather than focus on text, the majority turns quickly to
history. At common law, it insists, a “linkage” existed be-
tween the “seizure” of a person and the concept of an “ar-
rest.” Ante, at 5. Thus, the majority contends, we must
examine how the common law defined that term. But fol-
lowing the majority down this path only leads to another
dead end. Unsurprisingly, an “arrest” at common law ordi-
narily required possession too.
——————
possession by force; as the seizure of lands or goods; the seizure of a town
by an enemy; the seizure of a throne by an usurper. 3. The act of taking
by warrant; as the seizure of contraband goods. 4. The thing taken or
seized.” “5. Gripe; grasp; possession.” “6. Catch; a catching”).
Cite as: 592 U. S. ____ (2021) 11
GORSUCH, J., dissenting
1
Consider what some of our usual common law guides say
on the subject. Blackstone defined “an arrest” in the crim-
inal context as “the apprehending or restraining of one’s
person, in order to be forthcoming to answer an alleged or
suspected crime.” 4 Commentaries on the Laws of England
286 (1769). Hale and Hawkins both equated an “arrest”
with “apprehending,” “taking,” and “detain[ing]” a person.
See 1 M. Hale, Pleas of the Crown 89, 93–94 (5th ed. 1716);
2 W. Hawkins, Pleas of the Crown 74–75, 77, 80–81, 86 (3d
ed. 1739). And Hawkins stated that an arrest required the
officer to “actually have” the suspect “in his Custody.” Id.,
at 129. Any number of historical dictionaries attest to a
similar understanding—defining an “arrest” as a “stop,” a
“taking of a person,” and the act “by which a man becomes
a prisoner.”3
Common law causes of action point to the same common-
sense conclusion. During the founding era, an individual
who was unlawfully arrested could seek redress through
the tort of false imprisonment. See 3 W. Blackstone, Com-
mentaries on the Laws of England 127 (1768); see also Pay-
ton v. New York, 445 U. S. 573, 592 (1980); Wallace v. Kato,
——————
3 See, e.g., Bailey, Universal Etymological English Dictionary (To ar-
rest is “to stop or stay”; an arrest (in the legal sense) is “a Legal taking
of a Person, and restraining him from Liberty”); Dyche & Pardon, A New
General English Dictionary (An arrest is “the stopping or detaining a
person, by a legal process”); 1 Johnson, A Dictionary of the English Lan-
guage (“1. In law. A stop or stay; as, a man apprehended for debt, is said
to be arrested.” “An arrest is a certain restraint of a man’s person, de-
priving him of his own will, and binding it to become obedient to the will
of the law, and may be called the beginning of imprisonment.” “2. Any
caption, seizure of the person.” “3. A stop” (emphasis deleted)); 1 Ash,
The New and Complete Dictionary of the English Language (To arrest is
“[t]o seize a man for debt, to apprehend by virtue of a writ from any court
of justice, to stop, to hinder”; an arrest is “[t]he act of seizing on a man’s
person for debt, the execution of a writ from any court of justice by which
a man becomes a prisoner, a stop, a hindrance”).
12 TORRES v. MADRID
GORSUCH, J., dissenting
549 U. S. 384, 388–389 (2007) (describing “false arrest and
false imprisonment” as the “closest analogy” to an arrest
without probable cause). That cause of action aimed to rem-
edy “the violation of the right of personal liberty,” 3 Black-
stone, supra, at 127, which was “the power of loco-motion,
of changing situation, or removing one’s person to whatso-
ever place one’s own inclination may direct,” 1 W. Black-
stone, Commentaries on the Laws of England 130 (1765).
Thus, false imprisonment—the violation of the right to
move where one desired—required proof of “[t]he detention
of the person” and “[t]he unlawfulness of such detention.” 3
Blackstone, supra, at 127. That detention could occur “in a
gaol, house, stocks, or in the street,” but it occurred only if
a person was “under the custody of another.” 1 E. East,
Pleas of the Crown 428 (1806) (emphasis added).
Much the same held true in another related field. At com-
mon law, an officer could be held criminally liable for allow-
ing an individual to escape after being arrested. And to
prove the existence of an arrest in an “Indictment for an
Escape,” a prosecutor had to “expressly shew” that “the
Party was actually in the Defendant’s Custody for a Crime,
Action, or Commitment for it.” 2 Hawkins, supra, at 132
(emphasis added). In other words, to demonstrate an ar-
rest, a prosecutor had to prove the suspect had been “a Pris-
oner in [the officer’s] Custody.” 1 Hale, supra, at 112 (em-
phasis added). Here, too, an arrest required possession.
Once more, the majority’s primary answer to all this
countervailing evidence is to ignore it. And once more, the
majority’s own sources do more to hurt than help its cause.
Lifting a line from Simpson v. Hill, 1 Esp. 431, 170 Eng.
Rep. 409 (N. P. 1795), the majority suggests that the tort of
false imprisonment at common law required no more than
a “tapping on the shoulder.” Ante, at 13 (citing 1 Esp., at
431–432, 170 Eng. Rep., at 409). But Simpson could not
have stated the possession requirement more plainly:
“[W]ithout any taking possession of the person,” there “is
Cite as: 592 U. S. ____ (2021) 13
GORSUCH, J., dissenting
not, by law, a false imprisonment.” Id., at 432, 170 Eng.
Rep., at 409 (emphasis added). And the court proceeded to
reject the plaintiff ’s claim for false imprisonment because
the “constable did never take her into custody.” Ibid. (em-
phasis added). The majority offers no case finding the ele-
ments of false imprisonment satisfied by the mere touch of
a fleeing person.
What remains of the majority’s response follows the same
course. The majority asserts that claims for escape only re-
quired proof that the officer touched a suspect. Ante, at 12.
But to prove its point, the majority quotes a sentence from
Hale stating that no liability for escape exists “ ‘if the felon
were not once in the hands of an officer.’ ” Ibid. (quoting 2
Pleas of the Crown 93 (1736)). And as Hale proceeded to
make plain, a felon “in the hands of an officer” was another
way of saying the officer had “apprehended” or “taken” the
felon into his “custody.” See id., at 89, 93–94 (5th ed. 1716).
Ultimately, the majority seeks to invoke Samuel John-
son’s dictionary and Payton, 445 U. S., at 585, to confirm
only the anodyne point that some sort of “linkage” existed
at common law between the concepts of “arrests” and “sei-
zures.” Ante, at 5. Yet, even here it turns out there is more
to the story. The majority neglects to mention that Johnson
proceeded to define an “arrest” as a “caption” of the person,
“a stop or stay,” a “restraint of a man’s person, depriving
him of his own will,” and “the beginning of imprisonment.”
1 S. Johnson, A Dictionary of the English Language (6th ed.
1785). “To arrest,” Johnson said, was “[t]o seize,” “to detain
by power,” “[t]o withhold; to hinder,” and “[t]o stop motion.”
Ibid. Meanwhile, the sentence fragment the majority
quotes from Payton turns out to have originated in Justice
Powell’s concurrence in United States v. Watson, 423 U. S.
411, 428 (1976). And looking to that sentence in full, it is
plain Justice Powell, too, understood an arrest not as a
touching, but as “the taking hold of one’s person.” Ibid.14 TORRES v. MADRID
GORSUCH, J., dissenting
Thus, even the majority’s best sources only wind up point-
ing us back to the traditional possession rule.
2
Unable to identify anything helpful in the main current
of the common law, the majority is forced to retreat to an
obscure eddy. Starting from Hodari D.’s three references to
“mere touch” arrests, the majority traces these authorities
back to their English origins. The tale that unfolds is a cu-
rious one.
Before bankruptcy reforms in the 19th century, creditors
seeking to induce repayment of their loans could employ
bailiffs to civilly arrest delinquent debtors and haul them
off to debtors prison. See Cohen, The History of Imprison-
ment for Debt and Its Relation to the Development of Dis-
charge in Bankruptcy, 3 J. Legal Hist. 153, 154–155 (1982).
But the common law also offered debtors some tools to avoid
or delay that fate. Relevant here, the common law treated
the home as a “castle of defence and asylum” so no bailiff
could break into a debtor’s home to effect a civil arrest. 3
Blackstone, supra, at 288; see also Treiman, Escaping the
Creditor in the Middle Ages, 43 L. Q. Rev. 230, 233 (1927).
Over time, the practice of “keeping house” became an in-
creasingly popular way for debtors to evade the bailiff. Id.,
at 234. Naturally, too, creditors railed against this “notori-
ous” practice. See ibid. And eventually Parliament re-
sponded to their clamor. The English bankruptcy statutes
of 1542 and 1570 imposed serious penalties on debtors who
“kept house” to avoid imprisonment. Cohen, supra, at 157.
It was seemingly against this backdrop that the strange
cases Hodari D.’s dicta briefly alluded to and the majority
has now dug up began to appear. Under their terms, a bail-
iff who could manage to touch a person hiding in his home,
often through an open window or door, was deemed to have
effected a civil “arrest.” See Genner v. Sparks, 6 Mod. 173,
87 Eng. Rep. 928 (K. B. 1704). And because this mere touch
Cite as: 592 U. S. ____ (2021) 15
GORSUCH, J., dissenting
was deemed an “arrest,” the bailiff was then permitted by
law to proceed to “br[eak] the house . . . to seize upon” the
person and render him to prison. Ibid., 87 Eng. Rep., at
929. Of course it was farcical to call a tap through an open
window an “arrest.” But it proved a useful farce, at least
for creditors.
One of the majority’s lead cases, Sandon v. Jervis, El. Bl.
& El. 935, 120 Eng. Rep. 758 (K. B. 1858), illustrates the
absurdity of it all. There, a bailiff tried and failed “on sev-
eral occasions” to arrest a debtor. Id., at 936, 120 Eng. Rep.,
at 758. Eventually, the bailiff spotted an open window on
“an upper story,” so he ordered an assistant to fetch a lad-
der. Ibid. But the debtor and his daughter noticed the ploy
and “ran to the window,” slamming it closed. Ibid. Unfor-
tunately, in the excitement a window pane broke. Seeing
the opportunity, the bailiff ’s assistant, while perched atop
the ladder, thrust his hand through the opening and man-
aged to touch the debtor. Id., at 936–937, 120 Eng. Rep., at
758. According to the court, this “arrest” was sufficient to
justify the bailiff ’s later forcible entry into the home. Id.,
at 946–948, 120 Eng. Rep., at 762–763.
By everyone’s account, however, the farce extended only
so far. Yes, the mere-touch arrest was a feature of civil
bankruptcy practice for an unfortunate period. But the ma-
jority has not identified a single founding-era case extend-
ing the mere-touch arrest rule to the criminal context. The
majority points to two nineteenth-century treatises, but
both reference only a case about a debt-collection arrest.
See ante, at 11–12 (citing 1 J. Backus, A Digest of Laws Re-
lating to the Offices and Duties of Sheriff, Coroner and Con-
stable 115–116, n. (c) (1812) (citing Genner v. Sparks, 6
Mod. 173, 87 Eng. Rep. 928 (K. B. 1704)), and 1 R. Burn,
The Justice of the Peace 275 (28th ed. 1837) (citing the
same)). The majority nods to dicta from an 1854 Delaware
state trial court, but that came long after the founding and
the majority does not explain how it sheds light on the
16 TORRES v. MADRID
GORSUCH, J., dissenting
Fourth Amendment’s original meaning. See ante, at 12 (cit-
ing State v. Townsend, 5 Del. 487, 488)). And every remain-
ing early American case the majority cites for its “mere
touch” rule—from the founding through the Civil War—in-
volved only civil debt-collection arrests. See ante, at 4 (cit-
ing Whithead v. Keyes, 85 Mass. 495 (1862)); ante, at 6 (cit-
ing United States v. Benner, 24 F. Cas. 1084 (No. 14,568)
(CC ED Pa. 1830)); ante, at 6 (citing Butler v. Washburn, 25
N. H. 251 (1852) (tax collection)). The same goes for the
majority’s primary English authorities. See ante, at 7 (cit-
ing Nicholl v. Darley, 2 Y. & J. 399, 400, 148 Eng. Rep. 974
(Exch. 1828); Sandon, El. Bl. & El., at 940, 120 Eng. Rep.,
at 760)).
So what relevance do these obscure and long-abandoned
civil debt-collection practices have for today’s case concern-
ing a criminal arrest and brought under the Fourth Amend-
ment? The answer seems to be not much, for at least three
reasons.
In the first place, the Amendment speaks of “seizures,”
not “arrests.” To the extent the common law of arrests in-
forms the Amendment’s meaning, we have already seen
that an arrest normally meant taking possession of an ar-
restee. Maybe in one peculiar area, and for less than admi-
rable reasons, the common law deviated from this under-
standing. But this Court usually presumes that those who
wrote the Constitution used words in their ordinary sense,
not in some idiosyncratic way. See District of Columbia v.
Heller, 554 U. S. 570, 576 (2008). And today’s majority sup-
plies no evidence that anyone during the founding era un-
derstood the Fourth Amendment to adopt the specialized
definition of “arrest” from civil debt-collection practice.
Second, even if we were to hypothesize that people did
understand the Fourth Amendment to incorporate this
quirky rule, what would that tell us? Here, the officers tried
to arrest Ms. Torres in a parking lot on behalf of the State
for serious crimes, not break into her home on behalf of the
Cite as: 592 U. S. ____ (2021) 17
GORSUCH, J., dissenting
local credit union for missing a payment. So even if we were
willing to suppose that the founding generation understood
the Constitution to incorporate the majority’s civil debt-
collection arrest rule, nothing before us suggests they con-
templated, let alone endorsed, injecting it into the criminal
law and overriding settled doctrine equating arrests with
possession.
Finally, even in the civil debt-collection context, the ma-
jority cannot point to even a single case suggesting that hit-
ting a suspect with an object—an arrow, a bullet, a cudgel,
anything—as she flees amounted to an arrest. Instead, the
majority’s cases hold only that the “laying of hands” on an
arrestee constituted an arrest. Ante, at 7. Thus, even if the
Fourth Amendment did transpose the “mere touch” rule
from the context of civil arrests into the criminal arena, it
still would not reach this case.
How does the majority respond? Again, it does little more
than disregard the difficulties. The majority says there is
“no reason to suspect” the common law defined criminal ar-
rests of felons “any differently” than civil arrests of debtors.
Ante, at 13, 11. But the majority skips over all the evidence
canvassed above showing that a criminal arrest required
possession, not a mere touch. See Part III–B–1, supra. It
sails past its failure to identify any case holding that a mere
touch qualified as a criminal arrest. It ignores the fact
Blackstone defined criminal and civil arrests differently.4
And it claims to find support in Hawkins’s statement that
an officer could break into a house to capture an arrestee
——————
4 The majority cites only Blackstone’s definition of a civil arrest, which
required a “corporal seising or touching the defendant’s body.” Ante, at
6 (quoting 3 W. Blackstone, Commentaries on the Laws of England 288
(1768)). But flipping from Blackstone’s third volume (discussing “private
wrongs”) to his fourth volume (discussing “public wrongs”) reveals—as
we have already seen but the majority fails to acknowledge—that Black-
stone equated a criminal arrest with “apprehending or restraining . . .
one’s person, in order to be forthcoming to answer an alleged or suspected
crime.” See supra, at 11.
18 TORRES v. MADRID
GORSUCH, J., dissenting
who escaped after being “ ‘lawfully arrested for any Cause.’ ”
Ante, at 13–14 (quoting 2 Pleas of the Crown 87 (1721)).
Yet, the question before us isn’t what an officer might do
after making an arrest; it’s what constitutes an arrest in the
first place.
Rather than confront shortcomings like these, the major-
ity asks us to glide past them. It suggests that importing
the mere-touch rule into the criminal context is permissible
because “no common law case” had occasion to reject that
idea expressly. See ante, at 16. But this gets things back-
wards. Today, for the first time, the majority seeks to
equate seizures and criminal arrests with mere touches, at-
tempted seizures, and batteries. It is for the majority to
show the Fourth Amendment commands this result. No
amount of rhetorical maneuvering can obscure how flat it
has fallen: Even its own authorities do more to undermine
than support its thesis. If common law courts never con-
templated the majority’s odd definition of a criminal ar-
rest—and this Court didn’t either for more than two centu-
ries—that can only be further proof of its implausibility.
The majority asks us to glide past another problem too.
It acknowledges that its debt-collection cases required a
“laying on of hands” to complete an arrest. But it says we
should overlook that rule as an accident of antiquity.
“Touchings” by “firearm,” we are told, were unknown to
“founding-era courts,” and no “officer used a gun to appre-
hend a suspect” before 1850. Ante, at 9. Never mind the
shot heard round the world in 1775 and the adoption of the
Second Amendment. Never mind that as early as 1592,
when a bailiff “feared resistance” and thus “brought with
him” a gun “to arrest” someone, a common law court
deemed it lawful because “[t]he sheriff or any of his minis-
ters may for the better execution of justice carry with them
offensive or defensive weapons.” Seint John’s Case, 5 Co.
Rep. 71b, 77 Eng. Rep. 162, 162–163 (K. B. 1592). Never
mind that even tax collectors were carrying guns by the
Cite as: 592 U. S. ____ (2021) 19
GORSUCH, J., dissenting
1680s. E.g., Dickenson v. Watson, Jones, T. 205, 205–206,
84 Eng. Rep. 1218, 1218–1219 (K. B. 1682). And never
mind, too, that the majority’s problem isn’t limited to guns.
It fails to cite any case in which a touching by any weapon
was deemed sufficient to effect an arrest. Seemingly, the
majority would have us believe that bailiffs wielding any-
thing but their fists were beyond the framers’ imagination.
Faced with all these problems, the majority tacks. It
scrambles to locate a case—any case—suggesting that com-
mon law courts considered “touchings” by weapon enough
to effect an arrest in the debt-collection context. Ulti-
mately, the majority asks us to dwell at length on the Coun-
tess of Rutland’s case. In at least that lone instance, the
majority promises, we will find bailiffs who arrested a
debtor by touching her with an object (a mace) rather than
a laying on of hands. See ante, at 7–8 (citing Countess of
Rutland’s Case, 6 Co. Rep. 52b, 54a, 77 Eng. Rep. 332 (Star
Chamber 1605)). But it turns out the dispute concerned
whether a countess could be civilly arrested at all, not when
or how the arrest was completed. The court had no reason
to (and did not) decide whether the bailiffs accomplished
their arrest when they “shewed her their mace,” “touch[ed]”
her with the mace, or “compelled the coachman to carry”
her to jail. Id., at 54a, 77 Eng. Rep., at 336. And no one
questions that these things together—a show of authority
followed by compelled detention—have always been enough
to complete an arrest. Not even minor royalty can rescue
the majority.
So the majority tacks again. Now it asks us to dispense
with the common law’s “laying on of hands” requirement as
an “artificial” rule. Ante, at 8. Distinguishing between
“touchings” by hand and by weapon, it says, “calls to mind
the unavailing defense of the person who ‘persistently de-
nied that he had laid hands upon a priest, for he had only
cudgelled and kicked him.’ ” Ibid. But the quip exposes the
majority’s bind. To get where it wishes to go, the majority
20 TORRES v. MADRID
GORSUCH, J., dissenting
not only must rework the rules found in the cases on which
it relies, it must also abandon their rationale. The debt-
collection cases treated the “laying on of hands” as a sign of
possession.5 Maybe the possession was more “constructive”
or even fictional than “actual.” See ante, at 16. But the idea
was that someone who stood next to a debtor and laid hands
on him could theoretically exercise a degree of control over
his person. Common law courts never said the same of bail-
iffs who fired arrows at debtors, shot them with firearms,
or cudgeled them as they ran away. Such conduct might
have amounted to a battery, but it was never deemed suffi-
cient to constitute an arrest. Doubtless that’s why when a
tax collector shot a man in the eye with a (supposedly una-
vailable) firearm in 1682, the man sued the officer for “as-
sault, battery, and wounding”—not false imprisonment.
See Dickenson, Jones, T., at 205, 84 Eng. Rep., at 1218–
1219.
The majority implores us to study the common law his-
tory of arrests. But almost immediately, the majority real-
izes it cannot find what it seeks in the history of criminal
arrests. So it is forced to disinter a long-abandoned mere-
touch rule from civil bankruptcy practice. Then it must im-
port that rule into the criminal law. And because even that
isn’t enough to do the work it wishes done, the majority
must jettison both the laying on of hands requirement and
the rationale that sustained it. All of which leaves us con-
——————
5 That is why the mere-touch cases often discussed the “corporal pos-
session of the debtor.” E.g., Sandon v. Jervis, El. Bl. & El. 935, 941–942,
120 Eng. Rep. 758 (K. B. 1858) (Hill, J.). A “corporal” touch was a legal
term of art and was frequently used in the context of determining the
possession of goods. E.g., Jordan v. James, 5 Ohio 88, 98 (1831) (stating
that an owner “may deliver any chattel he sells, symbolically and con-
structively, as well as by corporal touch”); see also 2 W. Blackstone, Com-
mentaries on the Laws 448–449, n. 16 (J. Chitty ed. 1826); Friedman,
Formative Elements in the Law of Sales: The Eighteenth Century, 44
Minn. L. Rev. 411, 445 (1960).
Cite as: 592 U. S. ____ (2021) 21
GORSUCH, J., dissenting
fusing seizures with their attempts and arrests with batter-
ies.
The common law offers a vast legal library. Like any
other, it must be used thoughtfully. We have no business
wandering about and randomly grabbing volumes off the
shelf, plucking out passages we like, scratching out bits we
don’t, all before pasting our own new pastiche into the U. S.
Reports. That does not respect legal history; it rewrites it.
C
If text and history pose challenges for the majority, so do
this Court’s precedents. The majority admits (as it must)
that the seizure of an object occurs only through taking pos-
session. Ante, at 4. The majority also admits (as it must)
that the seizure of a person through a “show of authority”
occurs only if the suspect submits to an officer’s possession.
Ante, at 15. But the majority fails to acknowledge that this
Court has also said the same principle governs the seizure
of persons effected through the use of force.
In Terry v. Ohio, 392 U. S. 1 (1968), the Court explained
that “[o]nly 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.” Id.,
at 19, n. 16 (emphasis added). The restraint of liberty Terry
referred to was “interference” with a person’s “freedom of
movement.” United States v. Jacobsen, 466 U. S. 109, 113,
n. 5 (1984). As the Court put it in Brower v. County of Inyo,
489 U. S. 593 (1989), a decision issued just two years before
Hodari D.: “It is clear, in other words, that a Fourth Amend-
ment seizure” occurs “only when there is a governmental
termination of freedom of movement through means inten-
tionally applied.” 489 U. S., at 597 (emphasis deleted).
Rather than follow these teachings, the majority dispar-
ages them. After highlighting (multiple times) that Justice
Scalia authored Hodari D.’s dicta, the majority turns about
22 TORRES v. MADRID
GORSUCH, J., dissenting
and faults his opinion for the Court in Brower for “improp-
erly eras[ing] the distinction between seizures by control
and seizures by force.” Ante, at 14. The majority continues
on to blame other of our decisions, too, for “hav[ing] not al-
ways been attentive” to this supposedly fundamental dis-
tinction. Ibid. But this Court has not been “[in]attentive”
to a fundamental Fourth Amendment distinction for over
two centuries, let alone sought to “erase” it. In truth, the
majority’s “distinction” is a product of its own invention.
This Court has always recognized that how seizures take
place can differ. Some may take place after a show of au-
thority, others by the application of force, still others after
a polite request. But to be a “seizure,” the same result has
always been required: An officer must acquire possession.
IV
If text, history, and precedent cannot explain today’s re-
sult, what can? The majority seems to offer a clue when it
promises its new rule will help us “avoi[d] . . . line-drawing
problems.” Ante, at 15–16 (internal quotation marks omit-
ted). Any different standard, the majority worries, would
be “difficult to apply.” Ante, at 15.
But if efficiency in judicial administration is the explana-
tion, it is a troubling one. Surely our role as interpreters of
the Constitution isn’t to make life easier for ourselves. Cf.
Calabresi & Lawson, The Rule of Law as a Law of Law, 90
Notre Dame L. Rev. 483, 488 (2014). Nor, for that matter,
has the majority even tried to show that the traditional pos-
session rule—in use “[f]rom the time of the founding,” Ho-
dari D., 499 U. S., at 624—has proven unreasonably diffi-
cult to administer. Everyone agrees, too, that the
possession rule will continue to govern when it comes to the
seizures of objects and persons through a show of authority.
So, rather than simplify things, the majority’s new rule for
“mere touch” seizures promises only to add another layer of
complexity to the law.
Cite as: 592 U. S. ____ (2021) 23
GORSUCH, J., dissenting
Even within its field of operation, the majority’s rule
seems destined to underdeliver on its predicted efficiencies.
The majority tells us that its new test requires an “objective
intent to restrain.” Ante, at 10. But what qualifies is far
from clear. The majority assures us that a “tap on the
shoulder to get one’s attention will rarely exhibit such an
intent.” Ibid. Suppose, though, the circumstances “objec-
tively” indicate that the tap was “intended” to secure a per-
son’s attention for a minute, a quarter hour, or longer.
Would that be enough?
Then there’s the question what kind of “touching” will
suffice. Imagine that, with an objective intent to detain a
suspect, officers deploy pepper spray that enters a suspect’s
lungs as he sprints away. Does the application of the pep-
per spray count? Suppose that, intending to capture a flee-
ing suspect, officers detonate flash-bang grenades that are
so loud they damage the suspect’s eardrum, even though he
manages to run off. Or imagine an officer shines a laser
into a suspect’s eyes to get him to stop, but the suspect is
able to drive away with now-damaged retinas. Are these
“touchings”? What about an officer’s bullet that shatters
the driver’s windshield, a piece of which cuts her as she
speeds away? Maybe the officer didn’t touch the suspect,
but he set in motion a series of events that yielded a touch-
ing. Does that count? While assuring us that its new rule
will prove easy to administer, the majority refuses to con-
front its certain complications. Lower courts and law en-
forcement won’t have that luxury.
If efficiency cannot explain today’s decision, what’s left?
Maybe it is an impulse that individuals like Ms. Torres
should be able to sue for damages. Sometimes police shoot-
ings are justified, but other times they cry out for a remedy.
The majority seems to give voice to this sentiment when it
disparages the traditional possession rule as “artificial” and
promotes its alternative as more sensitive to “personal se-
curity” and “new” policing realities. Ante, at 8–9. It takes
24 TORRES v. MADRID
GORSUCH, J., dissenting
pains to explain, too, that its new rule will provide greater
protection for personal “privacy” interests, which we’re told
make up the “essence” of the Fourth Amendment. Ante, at
16 (internal quotation marks omitted).
But tasked only with applying the Constitution’s terms,
we have no authority to posit penumbras of “privacy” and
“personal security” and devise whatever rules we think
might best serve the Amendment’s “essence.” The Fourth
Amendment allows this Court to protect against specific
governmental actions—unreasonable searches and seizures
of persons, houses, papers, and effects—and that is the
limit of our license. Besides, it’s hard to see why we should
stretch to invent a new remedy here. Ms. Torres had ready-
made claims for assault and battery under New Mexico law
to test the officers’ actions. See N. M. Stat. Ann §41–4–12
(2020). The only reason this case comes before us under
§1983 and the Fourth Amendment rather than before a
New Mexico court under state tort law seems to be that Ms.
Torres (or her lawyers) missed the State’s two-year statu-
tory filing deadline. See Tr. of Oral Arg. 16–17; Brief for
Respondents 20, n. 4. That may be a misfortune for her,
but it is hardly a reason to upend a 230 year-old under-
standing of our Constitution.
Nor, if we are honest, does today’s decision promise much
help to anyone else. Like Ms. Torres, many seeking to sue
officers will be able to bring state tort claims. Even for
those whose only recourse is a federal lawsuit, the major-
ity’s new rule seems likely to accomplish little. This Court
has already said that a remedy lies under §1983 and the
Fourteenth Amendment for police conduct that “shocks the
conscience.” County of Sacramento v. Lewis, 523 U. S. 833,
840, 845–847 (1998). At the same time, qualified immunity
poses a daunting hurdle for those seeking to recover for less
egregious police behavior. In our own case, Ms. Torres has
yet to clear that bar and still faces it on remand. So, at the
end of it all, the majority’s new rule will help only those who
Cite as: 592 U. S. ____ (2021) 25
GORSUCH, J., dissenting
(1) lack a state-law remedy, (2) evade custody, (3) after
some physical contact by the police, (4) where the contact
was sufficient to show an objective intent to restrain, (5)
and where the police acted “unreasonably” in light of clearly
established law, (6) but the police conduct was not “con-
science shocking.” With qualification heaped on qualifica-
tion, that can describe only a vanishingly small number of
cases.
Even if its holding offers little practical assistance to an-
yone, perhaps the majority at least hopes to be seen as try-
ing to vindicate “personal security” and the “essence” of
“privacy” when it derides the traditional possession rule as
“artificial.” But an attractive narrative cannot obscure the
hard truth. Not only does the majority’s “mere touch” rule
allow a new cause of action in exceedingly few cases (non-
conscience-shocking-but-still-unreasonable batteries in-
tended to result in possession that don’t achieve it). It sup-
plies no path to relief for otherwise identical near-misses
(assaults). A fleeing suspect briefly touched by pursuing
officers may have a claim. But a suspect who evades a hail
of bullets unscathed, or one who endures a series of flash-
bang grenades untouched, is out of luck. That distinction
is no less “artificial” than the one the law has recognized for
centuries. And the majority’s new rule promises such
scarce relief that it can hardly claim more sensitivity to
“personal security” than the rule the Constitution has long
enshrined.
In the face of these concerns, the majority replies by deny-
ing their relevance. It says there is “no call” to “surmise”
that its decision rests on anything beyond an “analysis of
the common law of arrest.” Ante, at 17. But there is no
surmise about it. The majority itself tells us that its deci-
sion is also justified by the need to “avoi[d] . . . line-drawing
problems,” protect “personal security,” and advance the
“privacy” interests that form the “essence” of the Fourth
Amendment. Having invoked these sundry considerations,
26 TORRES v. MADRID
GORSUCH, J., dissenting
it’s hard to see how the majority might disown them.
*
To rule as it does, the majority must endow the term “sei-
zure” with two different meanings at the same time. It
must disregard the dominant rule of the common law. It
must disparage this Court’s existing case law for erasing
distinctions that never existed. It cannot even guarantee
that its new rule will offer great efficiencies or meaningfully
vindicate the penumbral promises it supposes. Instead, we
are asked to skip from one snippet to another, finally land-
ing on a long-abandoned debt-collection practice that must
be reengineered to do the work the majority wishes done.
Our final destination confuses a battery for a seizure and
an attempted seizure with its completion. All this is miles
from where the standard principles of interpretation lead
and just as far from the Constitution’s original meaning.
And for what? A new rule that may seem tempting at first
blush, but that offers those like Ms. Torres little more than
false hope in the end.
Respectfully, I dissent.