Sotomayor Invokes Scalia on Fourth Amendment Protections

Does the Fourth Amendment right to be free from unreasonable seizures include the right to be free from an unreasonable attempted seizure? The late Supreme Court Justice Antonin Scalia thought it did. “The mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee,” Scalia wrote for a unanimous Court in the 1991 case California v. Hodari D., qualifies as a seizure for Fourth Amendment purposes.

In October, the Supreme Court heard oral arguments in Torres v. Madrid, which challenges that ruling. The U.S. Court of Appeals for the 10th Circuit held that no seizure occurred when New Mexico state police shot Roxanne Torres, because their bullets did not actually stop her from getting away. “An officer’s intentional shooting of a suspect does not effect a seizure,” the appeals court said in 2019, unless the gunshot termi