The Role of Originalism in Torres v. Madrid
In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment “seizure.” The question in Torres is whether a person is “seized” if the government uses physical force to try to stop someone but the force does not succeed in stopping her. The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away. Was the shooting that injured her a Fourth Amendment “seizure”?
In this post, I want to discuss a really interesting question that I see underlying Torres: To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?
I. Concept One Way, Consequences the Other
Before I get to the common law rules, I want to point out that there are lots of ways of resolving Torres without reference to the common law rules. When I first heard about the Torres case, my thoughts were drawn to two other issues; the concept of seizures and the practical implications of how to interpret it in this setting. Because I suspect many readers will focus on these arguments, I thought I would flag them and say how I think they may cut.
On one hand, the usual concept of a Fourth Amendment seizure would point to the answer being that no seizure occurred. In modern Fourth Amendment law, a seizure is ordinarily a taking of control of an item. An officer does not take control of a person when he shoots a person but she does not stop. So you might say, as the court below did, that a shooting without a taking control is not a seizure.
On the other hand, a pragmatist might say that whether a person is seized in this kind of situation will come up mostly in excessive force actions permitted by modern Supreme Court caselaw. If we rely on Fourth Amendment law for a sensible excessive force doctrine, it would make sense to call any shooting of a person a seizure. That way it can allow civil suits in federal court based on it. So you might say, as some amicus briefs filed in Torres say, that a shooting without a taking control should be a seizure for those practical reasons.
So far this is pretty interesting. The concept of seizures seems to point one way, and the practical consequences seem to point the other way. It’s the kind of tension that makes for an interesting case.
II. Enter the Originalist Syllogism
But what makes Torres a really fascinating case, I think, is the role of originalism in settling the dispute. So now let’s turn to the common law rules that are the focus of a lot of the briefing so far in the case. The brief of the petitioner, plaintiff Roxanne Torres, relies heavily on the following originalist syllogism:
(1) at the time of the Fourth Amendment’s enactment, it was considered an “arrest” for an officer to apply physical force to a person in an unsuccessful effort to detain them;
(2) an arrest is a type of Fourth Amendment seizure; and therefore,
(3) it is a seizure for the government to apply physical force to a person in an unsuccessful effort to detain them.
This is a really interesting syllogism, I think, because it seems right in some ways but questionable in others.
On one hand, it’s true that at the time of the Fourth Amendment’s enactment, it generally was considered an “arrest” for an officer to apply physical force to a person
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