Argument evaluation: Justices spar over stare decisis, originalism, textual content and what counts as a Fourth Modification “seizure”

Argument analysis: Justices spar over stare decisis, originalism, text and what counts as a Fourth Amendment “seizure”

At the Torres v Madrid hearing on Wednesday, the judges tried all the instruments of interpretation of the Constitution while working through the meaning of the critical term "seizure" of the fourth amendment. How they govern will answer one of the last remaining questions in this regard: is there a “seizure” of the Fourth Amendment if the police shoot a fugitive suspect who is bullet wounded but does not stop?

Kelsi Brown Corkran for Roxanne Torres and Mark Standridge for officers (Art Lien)

Kelsi Corkran argued on behalf of Roxanne Torres, a New Mexico woman who was shot and killed twice by state police before driving away from the scene. She had support from Rebecca Taibleson, who appeared on behalf of the United States as "the friend of the court". Mark Standridge argued for police officers Janice Madrid and Richard Williamson. Torres alleges in a civil rights lawsuit that the officers violated their Fourth Right of Amendment by committing an unreasonable seizure when they shot her. The officers' defense is that the shooting did not constitute a confiscation at all.

Stare decision

As I mentioned in my case preview, it would be easiest for the court to just follow its precedent. Judges Sonia Sotomayor and Elena Kagan endorsed this approach, noting that in the 1991 California ruling against Hodari D., the court provided a definition of “seizure” that clearly captured the shooting in this case: “laying on of hands or Using physical strength to restrict movement, even if it ultimately fails. “The judges Clarence Thomas and Neil Gorsuch emphasized in their questioning, however, that this language is dictated or not essential for the outcome of this case and is therefore not binding for future decisions.

In order to clarify the central importance of this edition, Kagan read a number of passages from Hodari D. and stated that the language appeared "everywhere in the opinion" and "six times (in) only one seven-sided opinion" appeared. For Kagan, this was not a "stray statement" that could easily be ignored. To reiterate this point, Taibleson offered a sonic endorsement of the rigid decision, stating, “It is in the United States' interest to establish a clear and predictable rule that law enforcement can apply in the heat of the moment on the ground. and we I think the rule set out in Hodari D. achieves these goals. “While Taibleson acknowledged that the United States took an opposite position in 1991, she stated," We weren't … just comfortable, you know, running them back. "

Whether or not he valued Taibleson's unlucky basketball reference, Judge Stephen Breyer seemed similarly influenced by the need for a clear line: "We need a line slightly larger than what (the officers) suggest . " For Breyer, the line that the court drew in Hodari D. is “as good as any other line”.


For those Conservative judges interested in the narrow definition of officials for "seizure", the existence of a precedent to the contrary is only part of the problem. In addition, Hodari D. is a precedent of the originalists, written by Justice Antonin Scalia. In his statement for the court, Scalia wrote that under common law at the time of drafting "the mere seizing or use of physical force with legitimate authority, regardless of whether the detainee has been successfully subjugated, is sufficient to justify" a fit. This led Judge Brett Kavanaugh to urge Standridge to recognize that "You are arguing, as I understand it, that Justice Scalia, and indeed all nine judges in this case, were wrong about the original meaning of the fourth amendment." Kavanaugh similarly pushed Taibleson on this question, with Taibleson ultimately confirming that the official position of the United States was that Scalia got the story right. Sotomayor lit the flames, ironically noting that Scalia "was very much an advocate of common law and … in general was pretty well informed about it".

Faced with this set of originalist forces against him, Standridge demanded that the court “reject historical relics unsuitable for modern times,” in favor of rules that change “in interpreting the Fourth Amendment in the light of current norms and norms have developed contemporary conditions. "Oddly enough, it was the court Conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the framing-era cases, which he said primarily concerned" Dickensian collection practices ". Thomas suggested that the cases might be distinguishable because they originated outside of the criminal context and involved direct use of force. Judge Samuel Alito pointed out that none of the cases involved shootings. It seemed ironic here given the events that took place At the same time, when Judge Amy Coney Barrett praised the clarity of originalism in her Senate confirmatory hearing, the court's most prominent originalists seemed to be pointing out that framing-era precedents were set Little insight into the proper application of the constitution in a modern context offered t.


The judges returned to a more familiar area as they discussed the clear meaning of the term "seizure". The officials' strongest textual argument is that the ordinary meaning of the term does not apply to unsuccessful attempts to withhold someone. To illustrate this, Gorsuch used the most extreme hypothesis of the day and conjured up a driver who "blows" through roadblocks at 100 miles per hour, with the "bazookas" of the police (!) Firing all around and still only scratching one weapon. Alito picked up the thread and asked about "a baseball pitcher (which) intentionally beans the dough". Thomas added a question about someone who was hit by "a snowball". None of these cases, the judges suggested, fit the term “seizure”. The examples prompted Kavanaugh to ask Corkran to explain “why we shouldn't just follow the common usage of the term“ seizure ”.” In an obvious appeal to the judges against them, Corkran replied, “It is the common meaning at the time the foundation that controls. "

The judges 'hypotheses arguably underestimated an important fact about Torres' claim. Not only was Torres shot, he felt the effects – including (she claims) temporary paralysis. The fact that the bullets did their damage in the blink of an eye can lead judges to overlook their grave effects – damage that would have been easily noticeable with traditional physical contact. This point came up when Sandridge responded to Justice Alito's question about an officer who would "snap (a) person's shirt … for a few seconds", acknowledging that this would be a (temporary) seizure. Taking up the exchange regarding Torres' claim, Sotomayor asked Standridge how more of a fit grabbing a shirt for a few seconds was than sticking a bullet into someone.


One undercurrent in the survey concerned the social significance of the case. A thorough understanding of the term “seizure” would allow for greater judicial control of excessive police forces at a time when the country is increasingly dealing with police violence. At the beginning of the argument, Sotomayor asked Corkran to "explain why this case is so important". Committed to Corkran, Corkran noted that the narrow definition of seizure sought by officials would leave “government abuse of all kinds” outside the constitutional framework. Breyer emphasized the point, noting that the officials' argument left "people's right to be safe in their persons" without "a lot of protection – an entire area (without) protection".

Gorsuch and Alito made a contrary observation and asked both sides if the lawsuit could have been filed as a civil battery lawsuit in New Mexico State Court. The consensus seemed to be that it could have been without the statute of limitations. Standridge relied on his local New Mexico practice to help reduce skepticism about the potential of state remedies against excessive police force:

I believe I can argue, as an officer of this court and the New Mexico state courts, that it is likely a personal injury or battery charge brought by … a plaintiff like this petitioner who would and likely would have survived the summary judgment was resolved at the negotiation.


After the argument, the case feels closer than expected. Things can always change with the judges delving into the file, but right now I'm counting three votes for Torres and three for the officers, with the result depending on the two remaining judges – Kavanaugh and Chief Justice John Roberts – who don't tip have given their hands.

Posted in Torres v. Madrid, Featured, Merits Cases

Recommended citation:
Jeffrey Bellin,
Argument analysis: the judges argue over the decision, the originalism, the text and what is considered the "seizure" of the fourth amendment.
SCOTUSblog (October 16, 2020, 3:08 pm),