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Is Unsuccessful Attempt to Detain Suspect by Use of Physical Force a “Seizure”

Case Name: Torres v. Madrid (2021) __ U.S. __ [141 S.Ct. 989].
Case #: 19-292
Last Updated: March 25, 2021

Police officers shot Petitioner, but she drove away and temporarily eluded capture. In this excessive force suit, the district court granted summary judgment for the officers on the ground that no Fourth Amendment “seizure” occurred. The Tenth Circuit affirmed, reasoning that an officer’s application of physical force is not a seizure if the person upon whom the force is applied is able to evade apprehension.

The question presented is:

Is an unsuccessful attempt to detain a suspect by use of physical force a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold?


The Fourth Amendment prohibits unreasonable “seizures” to safeguard “[t]he 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.

This case was decided 3/25/2021. Chief Justice Roberts delivered the opinion of the court, in which Justices Breyer, Sotomayor, Kagan, and Kavanaugh joined. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Barrett took no part in the consideration or decision of the case.

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