U.S. Supreme Court Holds That Firing At and Striking Fleeing Suspect Amounts To A Seizure Even If Not Successful In Apprehending The Individual

Adam P. Sadowski By Adam P. Sadowski

On March 25, 2021, the Supreme Court in Torres v. Madrid, 592 U.S. ___ (2021) found that firing at a fleeing suspect constituted a “seizure” under the Fourth Amendment.  The plaintiff claims that she was sleeping in her car at an Albuquerque apartment complex when she awoke to police officers approaching.  The officers were executing a warrant for another individual.  The plaintiff claimed that she did not realize that the individuals were police officers, only that they were carrying guns, and mistook them for carjackers.  She sped from the apartment complex and the officers opened fire, striking her twice in the back.  Torres then continued to drive for 75 miles to a hospital and was arrested the next day.

The plaintiff brought a 42 U.S.C. § 1983 claim that the officers unconstitutionally seized her, although they never physically touched her.  Both lower courts dismissed the case on grounds that there was no physical contact between the officers and the plaintiff.  The Supreme Court reversed, with Chief Justice Roberts’ majority opinion noting that an unconstitutional seizure can “as readily [be] accomplished by a bullet as a finger.”  The Court then clarified that the “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”  Justice Neil Gorsuch’s dissent noted the quandary this holding presents: “We are told that a touch is a seizure even if the suspect never stops or slows down[.]”

It is unclear how impactful the decision will be, but it opens a new avenue for § 1983 plaintiffs who may not otherwise be able to support an unconstitutional seizure claim.  It remains to be seen whether the holding will be extended to other non-contact seizures such as tire strips.

You can view the full opinion by clicking here.