141 S. Ct. 989 (2021)
Respondents Janice Madrid and Richard Williamson, officers with the New Mexico State Police, arrived at an Albuquerque apartment complex to execute an arrest warrant and approached petitioner Roxanne Torres, then standing near a Toyota FJ Cruiser. The officers attempted 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 arrested 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. The District Court granted summary judgment to the officers, and 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.”
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.
(a) The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This Court's precedents have interpreted the term “seizure” by consulting the common law of arrest, the “quintessential” seizure of the person. In California v. 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. A review of the pertinent English and American decisions confirms that the slightest touching was a constructive detention that would complete the arrest. 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” 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.
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. The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain. This test does not depend on either the subjective motivation of the officer or the subjective perception of the suspect. Finally, a seizure by force lasts only as long as the application of force unless the suspect submits. Hodari D. held that brief or fleeting seizures remain seizures even if they are not followed by submission.
(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 neither the history of the Fourth Amendment nor this Court's precedents. The officers attempt to recast the common law doctrine recognized 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 arrests at common law.
The officers' contrary test would limit seizures of a person to “an intentional acquisition of physical control.” 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 termination of freedom of movement. But as common law courts recognized, 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 that the application of force completes an arrest has avoided such line-drawing problems.
(c) The officers seized Torres by shooting her with the intent to restrain her movement. This Court does not address the reasonableness of the seizure, the damages caused by the seizure, or the officers' entitlement to qualified immunity.
The Fourth Amendment prohibits unreasonable “seizures” to safeguard “the 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.
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 collar crimes, but also suspected of having been involved in drug trafficking, murder, and other violent crimes. What happened next is hotly contested. 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 Williamson.
The officers observed Torres standing with another person near a Toyota FJ Cruiser in the parking lot. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres—at the time experiencing methamphetamine withdrawal—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 police 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. According to Torres, neither Officer Madrid nor Officer Williamson stood in the path of the vehicle, but both fired their service pistols to stop her. 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 hospital in Grants was able to airlift her to another hospital in Albuquerque, where the police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault 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, alleging that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary judgment to the officers, and 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.” 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 movement or otherwise give rise to physical control over the suspect. We granted certiorari.
The Fourth Amendment protects “the 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. 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. There we interpreted the term “seizure” by consulting the common law of arrest, the “quintessential 'seizure of the person' under our Fourth Amendment jurisprudence.” As Justice Scalia explained 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.” 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 person did not yield.
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. Hodari D. articulated 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 arrest, 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” could be the “act of taking by warrant” or “of laying hold on suddenly”—for example, when an officer seizes a thief. A seizure did not necessarily result in actual control or detention. 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 effects.” As applied to a person, the word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. Then, as now, an ordinary user of the English language could remark: “She seized the purse-snatcher, but he broke out of her grasp.”
The “seizure” of a “person” plainly refers to an arrest. That linkage existed at the founding and persists today. 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. The cases and commentary speak with virtual unanimity 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 recognition to such an extent that English lawyers could confidently proclaim that “all the authorities, from the earliest time to the present, establish that a corporal touch is sufficient to constitute an arrest, even though the defendant do not submit.” The slightest application of force could satisfy this rule. In Genner v. Sparks, 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.” 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. The touching of the person—frequently called a laying of hands—was enough. Only later did English law grow to recognize arrest without touching through a submission to a show of authority. Even so, the traditional rule persisted that all an arrest required was “corporal seising or touching the defendant's body.”
Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. Justice Baldwin defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” State courts agreed that “any touching, however slight, is enough,” provided the officer made his intent to arrest clear. Courts continued to hold that an arrest required only the application of force—not control or custody—through the framing of the Fourteenth Amendment. Stated simply, the cases “abundantly shew that the slightest touch [was] an arrest in point of law.” 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.”
This case does not involve “laying hands,” 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. We are aware of no common law authority addressing 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, which involved touching with a mace. We see no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest. The required “corporal seising or touching the defendant's body” can be as readily accomplished by a bullet as by the end of a finger.
We will not carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm. While firearms were familiar at the founding, law enforcement did not commonly carry handguns until the latter half of the 19th century, at which point it became possible to use deadly force from a distance as a means of apprehension. So it should come as no surprise that neither we nor the dissent has located a common law case in which an officer used a gun to apprehend a suspect. But the focus of the Fourth Amendment is “the privacy and security of individuals,” not the particular manner of arbitrary invasion by governmental officials. The Fourth Amendment preserves personal security 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 qualify. 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 invitation to opine on matters not presented here—pepper spray, flash-bang grenades, lasers, and more.
Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. Only an objective test allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment. 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.
Nor does the seizure depend on the subjective perceptions of the seized person. Torres claims to have perceived the officers' actions as an attempted carjacking, 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 of whether Torres comprehended 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. The Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” The fleeting nature of some seizures by force may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. 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 physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her.
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: intentional acquisition of control. This alternative rule is inconsistent with the history of the Fourth Amendment and our cases.
The officers and their amici stress that common law rules are not automatically elevated to constitutional proscriptions, especially if they are distorted almost beyond recognition when literally applied. 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. The dissent presses the same argument. But the common law did not define the arrest of a debtor any differently from the arrest of a felon. Whether the arrest was authorized by a criminal indictment or a civil writ, “there must be a corporal seising, or touching the defendant's person; or, what is tantamount, a power of taking immediate possession of the body, and the party's submission thereto, and a declaration of the officer that he makes an arrest.” Treatises on criminal arrests cited the mere-touch precedents. When English courts confronted arrests for criminal offenses, they relied on precedents concerning arrests for civil offenses. American courts likewise articulated a materially identical definition in criminal cases—that the arrest itself is the laying hands on the defendant, or that an arrest is the taking, seizing, or detaining of the person of another, either by touching him or putting hands on him.
This uniform definition explains why an arrest by mere touch carried legal consequences in both the criminal and civil contexts. The point of an arrest was to take custody of a person to secure his appearance at a proceeding. But some arrests did not culminate in actual control of the individual. When an officer let an arrestee get away, the officer risked becoming a defendant himself in an action for “escape.” The laying of hands constituted a taking custody and would expose the officer to liability for the escape of felons and debtors alike.
The tort of false imprisonment, which the dissent acknowledges as the closest analogy to an arrest without probable cause, reinforces the conclusion that the common law considered touching to be a seizure. False imprisonment required “confinement,” such as “taking a person into custody under an asserted legal authority.” That element of confinement demanded no more than that the defendant “had for one moment taken possession of the plaintiff's person”—including, “for example, if he had tapped her on the shoulder, and said, 'You are my prisoner.' ” While the dissent emphasizes that a case proceeded to reject a false imprisonment claim, that was because the constable never touched the plaintiff, or took her into custody.
To be sure, the mere-touch rule was particularly well documented 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. Officers seeking to execute criminal process, on the other hand, possessed greater pre-arrest authority to enter a felon's home. But the fact that the common law rules of arrest generated more litigation in the civil context 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 collection—indeed, they told us just the opposite. Whenever a person was lawfully arrested for any cause and afterwards escaped and sheltered himself in a house, the officer could break open the doors of the house.
The officers and the dissent derive from our cases a different touchstone for the seizure of a person: “an intentional acquisition of physical control.” Under their alternative rule, the use of force becomes a seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” This approach improperly erases the distinction between seizures by control and seizures by force. Each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule. Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement.
A prime example of the acquisition-of-control seizure comes from Brower v. County of Inyo, where the police seized a driver when he crashed into their roadblock. Under the common law rules of arrest, actual control is a necessary element for this type of seizure. But that requirement of control or submission never extended to seizures by force. As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. 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 suspect, 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. For centuries, the common law rule has avoided such line-drawing problems by clearly fixing the moment of the seizure.
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 promissory note. But the facts of the cases and the language of the opinions confirm that the concept of possession included the “constructive detention” of persons “never actually brought within the physical control of the party making an arrest.” Even the dissent acknowledges that a touch can establish a form of constructive possession.
The dissent says that “common law courts never contemplated” that the touching itself could effect a seizure. But one need only look at the many decisions adopting that definition of arrest to see otherwise. 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. We have definitively stated that “the arrest of a person is quintessentially a seizure.” The dissent's attempt to ignore arrests it appraises as “unfortunate” or “peculiar” pays insufficient regard to the complete history underlying the Fourth Amendment.
The dissent argues that we advance a “schizophrenic reading of the word 'seizure.'” But our cases demonstrate 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 detention or the mere-touch rule developed in the context of seizures of a person—capable of fleeing and with an interest 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. 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. We have relied on that understanding in construing the meaning of the Amendment.
The dissent speculates about the majority's motives, but 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 regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers' entitlement to qualified 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 Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting.
The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority's account, a Fourth Amendment “seizure” takes place whenever 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, the majority must disregard the Constitution's original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Lacking support from those traditional sources of authority, the majority leans on an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment's meaning, this Court has never before adopted the majority's definition of a “seizure.” Neither the Constitution nor common sense can sustain it.
This case began when two Albuquerque police officers approached Roxanne Torres on foot. The officers thought Ms. Torres was the subject of an arrest warrant and suspected of involvement in murder and drug trafficking. As it turned out, they had the wrong person. 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 under the influence of 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 driving—over a curb, across some landscaping, and into a street, eventually colliding with another vehicle. Abandoning 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 decided she needed to be airlifted back to Albuquerque for more intensive care. Only at that point, a day after her encounter 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. Under longstanding circuit precedent, 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 reasoned, the officers' bullets had not “seized” her; any seizure took place only when she was finally arrested back in Albuquerque the following day.
Ms. Torres argues that California v. Hodari D. compels reversal because, 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. Hodari D. has indeed generated confusion. There officers chased a suspect on foot and the suspect argued he was seized the moment the chase began. The Court rejected that argument, explaining that from the founding to the present the word “seizure” has meant a “taking possession.” Because the defendant did not submit to the officers' show of authority, the officers' conduct amounted at most to an attempted seizure. Neither usage nor common-law tradition makes an attempted seizure a seizure.
But the Court in Hodari D. proceeded to imagine a different hypothetical: one in which the officers not only chased the suspect but also “appl[ied] physical force” to him. In those circumstances, the Court suggested, “merely touching” a suspect, even when officers fail to gain possession, might qualify as a seizure. That dicta led to a circuit split. Some courts began holding that a mere touch constitutes a Fourth Amendment seizure; others continued to adhere to the long-understood meaning of “seizure” as a taking of possession. We took this case to sort out the confusion.
The passage in Hodari D. Ms. Torres seeks to invoke was dicta. The only question in Hodari D. was whether officers seize a defendant by a show of authority without touching him. The separate question whether a “mere touch” also qualifies as a seizure was not presented, no party briefed it, and the opinion offered only shallow consideration resting on three sources: a state court opinion from the 1860s, a comment in the 1934 Restatement of Torts, and a 1930s treatise. Some lower courts have recognized Hodari D.'s aside as nonbinding dicta. The majority says it intends to rule for Ms. Torres independently of Hodari D., but the majority nonetheless picks up where Hodari D.'s dicta left off.
Ms. Torres is mistaken that Hodari D.'s discussion of “mere touch” seizures compels a ruling in her favor. Dicta cannot bind future courts. Passages unnecessary to the outcome may not be fully considered; parties with little at stake in a hypothetical question may afford it little adversarial testing; and federal courts have no authority to rule beyond the cases and controversies before them. The passage Ms. Torres invokes was dicta, and the Court should not treat it as controlling precedent.
Seeking to carry the burden independently, the majority contends that an officer “seizes” a person by merely touching him with an “intent to restrain.” According to the majority, a touch is a seizure 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 improbable to most lawyers and judges—as it should today. A mere touch may be a battery or part of an attempted seizure, but the Fourth Amendment's text, history, and our precedent confirm that “seizing” something means taking possession.
Start with the text. The Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” From the founding to the present the key term “seizure” has meant “taking possession.” Contemporary dictionaries define a “seizure” in terms of possession. This Court's early cases reflect the same understanding. In The Josefa Segunda the Court interpreted “seizure” of a ship to require “an open, visible possession claimed,” so that previous possessors understand they are dispossessed. In Pelham v. Rose the Court explained that to effect a seizure one needed to “take” the thing “into his actual custody and control.”
The majority accepts that a seizure of inanimate objects requires possession and that a seizure of a person through a show of authority occurs only if the suspect submits. The majority insists that a different rule should apply only in cases where an officer “touches” the suspect, and here possession is not required. Thus, the majority asks us to believe officers “seized” Ms. Torres's person, but not her car, when they shot both and both continued speeding away. That schizophrenic reading of “seizure” is without textual or canonical support. When a provision uses the same word multiple times, courts must give it the same meaning each time. The majority's construction ascribing different meanings depending on the object being seized is novel and unjustified.
The majority's textual defense is limited to selective snippets and hypothetical examples. Webster's fuller definitions of “seizure” include “the act of taking possession by force,” “possession,” and “a catching,” and the purse-snatcher hypothetical from Hodari D. presupposes that the seizing person had established a grasp for the suspect to break out of. The majority's textual arguments therefore do not support abandoning the ordinary meaning of “seizure” as possession.
The majority turns to history next, insisting the common law linked “seizure” of a person to the concept of “arrest.” But at common law an arrest ordinarily required possession too. Blackstone defined an arrest as the apprehending or restraining of one's person. Hale and Hawkins equated arrest with apprehending, taking, and detaining a person and indicated an arrest required the officer to “actually have” the suspect in custody. Historical dictionaries and causes of action such as false imprisonment confirm that detention required custody: detention was the deprivation of the right to loco-motion and required that a person be “under the custody of another.” In prosecutions for escape, indictments had to show the party was actually in the defendant's custody for a crime. All of these sources point to possession, not mere touching, as required for an arrest.
The majority's principal rejoinder is to cite a strand of civil debt-collection practice where bailiffs were permitted to touch a debtor through a window or with the end of an instrument, and courts treated that touching as sufficient to constitute an arrest for purposes of debt collection and to justify forcible entry. But those cases sprang from a peculiar and narrow area of law—civil creditor remedies in which Parliament and the courts developed special rules to discourage debtors from “keeping house” to avoid bailiffs. The majority cannot show a single founding-era case extending the mere-touch rule to the criminal context. The cases it cites from the early American period concern civil arrests for debt or tax collection, not criminal arrests. Even within the civil context, the rule concerned a “laying on of hands” or constructive possession, not run-of-the-mill batterings or shootings.
The majority's efforts to translate the debt-collection mere-touch rule into a constitutional rule governing criminal arrests require three leaps: importing a narrow civil practice into the criminal law, treating mere touchings by weapons or distant force as the same as laying hands, and jettisoning the historical rationale that treated the touch as evidence of the officer's constructive possession. Those three steps rewrite the common law rather than faithfully interpret it.
If text and history present problems for the majority, so do this Court's precedents. Terry v. Ohio explained that only when an officer, by means of physical force or show of authority, in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. Brower held that a Fourth Amendment seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” These teachings point to possession or its practical equivalent, not to every application of force.
The majority criticizes Brower as erasing the distinction between seizures by control and seizures by force, but Brower describes seizures that involve the governmental termination of freedom of movement. The majority's distinction between control and force is of its own making; historically, the same requirement of meaningful restraint has governed seizures whether by authority or force.
If the majority's goal were administrative ease, its approach fails. The majority claims its rule avoids line-drawing problems, but it creates many more. Its test asks whether the force “objectively manifests an intent to restrain,” but how are courts to measure that objectively? What degree and kind of force will qualify? Do pepper spray, flash-bangs, blinded retinas, fragments of shattered glass, or other indirect consequences count as “touchings”? The majority refuses to answer.
Nor does this new rule fill a large remedial gap. Many victims of police abuse can bring state-law tort claims for assault or battery. For those who cannot, remedies under § 1983 and the Fourteenth Amendment still exist for conscience-shocking conduct. Qualified immunity will also constrain many suits. The majority's rule will thus help only a vanishingly small class of plaintiffs and will do so at the cost of distorting the text and history of the Fourth Amendment.
To adopt the majority's position requires endowing the term “seizure” with two different meanings at the same time, disregarding the dominant current of common law, and remaking precedent. For that reason, and because the majority's approach confuses an attempted seizure with its consummation, I respectfully dissent.