No. 19-292

In the Supreme Court of the United States

ROXANNE TORRES, PETITIONER

v.

JANICE MADRID, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF VACATUR
AND REMAND

NOEL J. FRANCISCO
Solicitor General
Counsel of Record

BRIAN A. BENCZKOWSKI
ERIC S. DREIBAND
Assistant Attorneys General

ERIC J. FEIGIN
Deputy Solicitor General

ALEXANDER V. MAUGERI
Deputy Assistant Attorney
General

REBECCA TAIBLESON
Assistant to the Solicitor
General

TOVAH R. CALDERON
JENNY C. ELLICKSON
BRANT S. LEVINE
Attorneys

Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 

QUESTION PRESENTED

Whether a law-enforcement officer’s shooting of a
subject who continues to flee should be analyzed as a
Fourth Amendment seizure for purposes of determining
its constitutionality.

(I)

 

TABLE OF CONTENTS

                                                                                                 Page

Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 6
Argument ....................................................................................... 9
I. The application of restraining physical force can
effect a temporary seizure even if the subject does
not yield .......................................................................... 10
A. A physical-force seizure under the Fourth
Amendment requires intentional application
of restraining physical force by law
enforcement ........................................................... 10
B. A subject’s failure to yield affects the
duration, but not the existence, of a physicalforce
seizure ........................................................... 13
II. This Court should vacate the decision below and
remand for further proceedings ................................... 19
A. When petitioner was shot, she was
momentarily seized by the application of
physical force ......................................................... 19
B. This Court should remand for further
consideration of respondents’ other
arguments in support of summary judgment ..... 20
Conclusion ................................................................................... 23

TABLE OF AUTHORITIES

Cases:
Brendlin v. California, 551 U.S. 249 (2007) ........... 12, 13, 16
Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010),
cert. denied, 562 U.S. 1200 (2011) ....................... 5, 6, 15, 16
Brosseau v. Haugen, 543 U.S. 194 (2004) ........................... 22
Brower v. County of Inyo, 489 U.S. 593
(1989) ............................................................. 11, 12, 13, 16, 20

(III)

 

IV

Cases—Continued: Page

California v. Hodari D., 499 U.S. 621 (1991) ............ passim
Childress v. City of Arapaho, 210 F.3d 1154
(10th Cir. 2000) ...................................................................... 5
County of Sacramento v. Lewis, 523 U.S. 833
(1998) .............................................................................. 12, 16
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 22
Elkins v. United States, 364 U.S. 206 (1960) ...................... 20
Florida v. Bostick, 501 U.S. 429 (1991) ............................... 13
Graham v. Connor, 490 U.S. 386 (1989) .......................... 9, 21
INS v. Delgado, 466 U.S. 210 (1984) .................................... 13
Manuel v. City of Joliet, 137 S. Ct. 911 (2017) ................... 17
Michigan v. Bryant, 562 U.S. 344 (2011) ............................ 12
Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................. 22
Mullenix v. Luna, 136 S. Ct. 305 (2015) ............................. 22
Pearson v. Callahan, 555 U.S. 223 (2009) ........................... 22
Plumhoff v. Rickard, 572 U.S. 765 (2014) ..................... 21, 22
Tennessee v. Garner, 471 U.S. 1 (1985) ............................... 17
Terry v. Ohio, 392 U.S. 1 (1968) ...................... 7, 10, 17, 18, 21
Thompson v. Whitman, 85 U.S. (18 Wall.) 457 (1874) ....... 17
United States v. Jacobsen, 466 U.S. 109 (1984) ............ 16, 18
United States v. Leon, 468 U.S. 897 (1984) ......................... 13
United States v. Mendenhall, 446 U.S. 544 (1980) ............. 16
Utah v. Strieff, 136 S. Ct. 2056 (2016) .................................. 18
Whithead v. Keyes, 85 Mass. (3 Allen) 495 (1862) ........ 11, 12

Constitution and statutes:

U.S. Const. Amend. IV ................................................. passim
18 U.S.C. 242 ............................................................................ 1
34 U.S.C. 12601 (Supp. V 2017) .............................................. 1
42 U.S.C. 1983 .......................................................................... 4

 

V

Miscellaneous:                                                                              Page

Asher L. Cornelius, The Law of Search and Seizure
(2d ed. 1930) ................................................................... 11, 12
Thomas Dyche & William Pardon, A New General
English Dictionary (14th ed. 1771) .................................. 17
2 Samuel Johnson, A Dictionary of the English
Language (6th ed. 1785) ..................................................... 17
Restatement of Torts (1934) ........................................... 11, 12
2 Noah Webster, An American Dictionary of
the English Language (1828) ............................................ 17

 

In the Supreme Court of the United States

No. 19-292

ROXANNE TORRES, PETITIONER

v.

JANICE MADRID, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN SUPPORT OF VACATUR
AND REMAND

INTEREST OF THE UNITED STATES

This case presents the question whether a lawenforcement
officer’s shooting of a subject who continues
to flee should be analyzed as a Fourth Amendment
seizure for purposes of determining its constitutionality.
The Fourth Amendment standard applies to both
federal and state law-enforcement officers. The United
States often defends federal law-enforcement officers
who face personal liability for alleged Fourth Amendment
violations. The United States also prosecutes lawenforcement
officers who willfully violate the Fourth
Amendment, see 18 U.S.C. 242, and brings civil actions
to address systemic Fourth Amendment violations by
law enforcement, see 34 U.S.C. 12601 (Supp. V 2017).
Issues relating to the question presented could also
arise in the context of a suppression motion in a federal

(1)

 

2

criminal case. The United States therefore has a substantial
interest in the Court’s decision on the question.

STATEMENT

1. In the early morning hours of July 15, 2014, New
Mexico State Police officers—including respondents
Janice Madrid and Richard Williamson—went to an
apartment complex in Albuquerque to serve an arrest
warrant on a female suspect. Pet. App. 2a, 10a-11a. Respondents
were wearing “tactical vests and dark clothing”
that “clearly identified them as police officers.” Id.
at 11a. The officers approached petitioner as she sat in
the driver’s seat of a Toyota FJ Cruiser in the complex’s
parking lot. Id. at 2a, 11a. Petitioner had backed the
Cruiser, which is a sport-utility vehicle (SUV), into a
parking spot between two other vehicles, and the motor
was running when the officers approached. See J.A. 24;
Pet. App. 2a, 11a.*

Petitioner was in a “[b]ad” state of mind that morning
because she had been awake “for days” and was
“crashing” from methamphetamine withdrawal. C.A.

______________

* This brief describes the facts in a manner consistent with the
lower court opinions. Some factual disputes exist. For example, the
circumstances that precipitated respondents’ approach to petitioner’s
SUV are unclear. At her deposition, petitioner initially suggested
that she never got out of the SUV, remaining inside for five
to ten minutes before the officers approached. See C.A. App. 102.
Later in the deposition, however, petitioner stated that she was outside
the SUV for five to ten minutes and had reentered the SUV
when it had begun to rain. See id. at 204. Officers on the scene
similarly testified that they observed petitioner outside the SUV.
See id. at 113, 120. Two of the officers testified that they began to
approach petitioner while she was standing outside the SUV talking
to a man and that, on seeing the officers, the man fled and petitioner
immediately got in the SUV and started the engine. See id. at 120-
121, 124, 259.

 

3

App. 108; see also Pet. App. 2a-3a. Both officers testified
that they saw petitioner making “furtive” or “aggressive”
movements inside the SUV as they approached.
Pet. App. 3a (citations omitted); J.A. 55, 94. The officers
attempted to address petitioner through the driver’s
side window, but petitioner testified that she did not notice
them until she heard a “flicker” on the handle of her
locked car door. J.A. 22-23; see Pet. App. 3a, 11a.

According to petitioner, when she heard that
“flicker,” she looked up, saw the officers outside the vehicle,
and “freak[ed] out,” believing that she was being
carjacked. J.A. 23; see Pet. App. 3a, 11a. Petitioner
“put the car into drive” and prepared to “step on the
gas.” J.A. 23. At the time, Officer Williamson was
standing near the driver’s door, between the Cruiser
and an adjacent vehicle, and Officer Madrid was standing
closer to the front of the SUV, “at the front tire.”
Pet. App. 11a. When petitioner shifted the SUV into
drive, Officer Williamson drew his firearm. Id. at 3a;
see J.A. 23. At some point, Officer Madrid drew her
firearm as well. Pet. App. 3a; see J.A. 23.

As the SUV began to move forward, both officers began
to discharge their weapons. Pet. App. 3a-4a, 11a;
see C.A. App. 206. Officer Madrid testified that the
Cruiser “drove at her” and that she shot “at the driver
through the windshield” in an attempt “to stop the
driver from running her over.” Pet. App. 3a (quoting
C.A. App. 114) (brackets omitted). Officer Williamson
testified that he fired at petitioner because he feared
being “crushed” between the Cruiser and the neighboring
car and because he sought “to stop the action of the
Cruiser going towards Officer Madrid.” Id. at 3a-4a
(quoting C.A. App. 125) (brackets omitted). Petitioner

 

4

was hit twice, id. at 4a; she alleges that both bullets “entered
her back,” Pet. Br. 5.

Petitioner continued to drive ahead, traveling over a
curb, through some landscaping, and down a street.
Pet. App. 4a, 11a. Petitioner ultimately stopped in a
parking lot, where she laid down on the ground and attempted
to “surrender” to the “carjackers,” on the belief
that they might be following her. Id. at 4a (quoting
C.A. App. 208). Petitioner asked a bystander to call the
police, but she did not want to remain at the scene because
she had an outstanding arrest warrant. Ibid. Instead,
petitioner stole a different car and drove approximately
75 miles to a hospital in Grants, New Mexico.
Ibid.; see id. at 12a.

Petitioner was later airlifted to a hospital in Albuquerque,
where she was arrested the following day.
Pet. App. 4a, 12a. She ultimately pleaded no contest to
three New Mexico offenses: aggravated fleeing from a
law-enforcement officer (Officer Williamson), assault on
a police officer (Officer Madrid), and unlawfully taking
a motor vehicle. Ibid.; see C.A. App. 142-147.

2. In October 2016, petitioner filed a civil-rights action
under 42 U.S.C. 1983 against respondents, alleging
that they violated her Fourth Amendment rights by using
excessive force against her. Pet. App. 4a-5a; J.A. 4-10.
With the parties’ consent, a magistrate judge conducted
dispositive proceedings in the case. 16-cv-1163 Docket
entry No. (Docket entry No.) 2 (Oct. 21, 2016); Docket
entry No. 3 (Oct. 24, 2016); Docket entry No. 11 (Nov.
14, 2016).

After the magistrate judge denied the officers’ motion
to dismiss petitioner’s complaint, see Pet. App. 21a-
31a, respondents moved for summary judgment, id. at
10a. In support of the motion, respondents maintained

 

5

that they were entitled to qualified immunity because
their use of force was reasonable and did not violate
clearly established law, and that petitioner’s convictions
for fleeing from Officer Williamson and assaulting Officer
Madrid precluded her civil claims. Id. at 13a. Respondents
also argued that because petitioner continued
to flee after being shot, she was never “seized,” and
that she therefore could not pursue an excessive-force
claim under the Fourth Amendment. Ibid.

Addressing only that last argument, the magistrate
judge granted the summary-judgment motion and dismissed
the case with prejudice. Pet. App. 10a-20a. The
magistrate judge explained that, in order to prove an
excessive-force claim under the Fourth Amendment,
petitioner must first show that a “seizure” occurred. Id.
at 17a. The magistrate judge observed that under circuit
precedent, a “seizure requires the ‘intentional acquisition
of physical control’ of the person being seized.”
Ibid. (quoting Childress v. City of Arapaho, 210 F.3d
1154, 1156 (10th Cir. 2000)). And the magistrate judge
concluded that “the undisputed material facts”—in particular,
that petitioner “never stopped in response to police
action”—“show that [she] was never seized.” Id. at
13a, 20a.

3. The court of appeals affirmed on that same ground.
Pet. App. 1a-9a. The court explained that “ ‘without a
seizure, there can be no claim for excessive use of force’
under the Fourth Amendment.” Id. at 7a (brackets and
citation omitted). And the court concluded that petitioner
had “failed to show she was seized by the officers’
use of force.” Ibid.; see id. at 9a.

The court of appeals deemed this case to be “governed
by” Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir.
2010), cert. denied, 562 U.S. 1200 (2011), which had

 

6

“held that a suspect’s continued flight after being shot
by police negates a Fourth Amendment excessive-force
claim.” Pet. App. 7a (citing Brooks, 614 F.3d at 1223-
1224). In particular, the court understood Brooks to set
forth a legal rule that “an officer’s intentional shooting
of a suspect does not effect a seizure unless the ‘gunshot
terminates the suspect’s movement or otherwise causes
the government to have physical control over him.’ ” Id.
at 7a-8a (quoting Brooks, 614 F.3d at 1224) (brackets
and ellipsis omitted). And because petitioner “managed
to elude police for at least a full day after being shot,”
the court concluded that petitioner was not seized when
the officers shot her and that petitioner’s civil claims accordingly
failed as a matter of law. Id. at 8a.

As they had in the district court, respondents had
raised on appeal several alternative arguments that
would independently support a grant of summary judgment.
Resp. C.A. Br. 19-25. They maintained that
(1) their use of deadly force was constitutionally reasonable,
see id. at 19-21; (2) petitioner’s convictions for assault
and aggravated fleeing barred her civil claims, see
id. at 21-23; and (3) they were entitled to qualified immunity
because petitioner had failed to demonstrate
that their actions were contrary to clearly established
law, see id. at 24-25. The court of appeals did not reach
any of those arguments.

SUMMARY OF ARGUMENT

The court of appeals erred in concluding that the
Fourth Amendment has no application to this case because
petitioner managed to flee after being shot by police.
This Court’s precedents establish that the police
may effect a Fourth Amendment seizure by intentionally
applying restraining physical force to a subject. A
subject’s escape will render the seizure fleeting, but will

 

7

not negate the seizure entirely. It is therefore clear
that respondents momentarily seized petitioner when
they shot her. It is not at all clear, however, that the
shooting actually violated the Fourth Amendment, or
that respondents should face liability, and this Court
should remand so that the lower courts may apply the
correct legal framework to analyze petitioner’s claims.

I. Law-enforcement officers can seize a person
within the meaning of the Fourth Amendment in two
ways: by a “show of authority,” such as a command to
halt, or “by means of physical force.” Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968). This Court’s precedents have
differentiated between the two types of seizures. The
threshold defining feature of a physical-force seizure is
actual physical impact on a subject’s person; in the absence
of such impact, the police may have attempted a
seizure (or made a show of authority), but they have not
effected a seizure by physical force. That physical impact
must be intentional, not accidental. And the officer’s
use of force against the subject must be designed
to restrain his movement. Like nearly all Fourth
Amendment analyses, the inquiry requires an objective
assessment of the officer’s conduct, rather than focusing
on the subjective motivations of the officer or any
beliefs that would not be attributable to a reasonable
innocent person.

A physical-force seizure does not, however, necessarily
require that the subject submit to law enforcement.
Instead, under California v. Hodari D., 499 U.S.
621 (1991), the “application of physical force to restrain
movement” is a “seizure” under the Fourth Amendment,
“even when it is ultimately unsuccessful.” Id. at
626. While the facts of Hodari D. involved a show-ofauthority
seizure, the Court’s determination that a

 

8

show-of-authority seizure is not complete unless the
subject submits to an officer’s authority was grounded
in an explicit contrast with a physical-force seizure,
which does not require submission. The court of appeals
erred in disregarding Hodari D.’s extensive discussion
of that point, which has not been abrogated by
any other decision of this Court.

Although submission is not a prerequisite for a
physical-force seizure, its absence does affect the seizure’s
length. When the police intentionally apply restraining
force to a subject but the subject continues to
flee, the seizure lasts only as long as the application of
force. That rule is required by the plain text of the
Fourth Amendment, follows from this Court’s precedents
defining a “seizure,” and is consistent with the
common law.

II. A straightforward application of this Court’s
precedents to the undisputed facts of this case establishes
that petitioner was momentarily seized when respondents
shot her, notwithstanding her continued
flight. Respondents seized petitioner by intentionally
shooting her twice, objectively manifesting an intent to
restrain her by stopping her from driving forward. The
seizure, however, lasted only for the brief period of the
bullets’ impact.

The court of appeals’ threshold error means only
that it should have analyzed petitioner’s claim under the
Fourth Amendment—not that petitioner should necessarily
prevail. The Fourth Amendment prohibits only
“unreasonable * * * seizures.” U.S. Const. Amend. IV
(emphasis added). Respondents have maintained that
their use of force here was a reasonable response to the
threat of injury that petitioner posed in driving the
SUV. They have also maintained that, at the very least,

 

9

no clearly established law held otherwise, thereby entitling
them to qualified immunity. Those issues should
be analyzed in light of Fourth Amendment doctrine on
remand.

ARGUMENT

Although respondents’ actions in this case did not
necessarily violate the Fourth Amendment’s prohibition
“against unreasonable * * * seizures,” U.S. Const.
Amend. IV, the uncontested facts establish that respondents’
actions did constitute a “seizure” whose constitutionality
would turn on its reasonableness. This
Court has emphasized “that all claims that law enforcement
officers have used excessive force—deadly or not—
in the course of * * * [a] ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’
standard,” not under a “more generalized
notion of ‘substantive due process.’ ” Graham v. Connor,
490 U.S. 386, 395 (1989). And it made clear in California
v. Hodari D., 499 U.S. 621 (1991), that the “application
of physical force to restrain movement” is a
“seizure” under the Fourth Amendment, “even when it
is ultimately unsuccessful.” Id. at 626. The lower courts
accordingly erred in granting summary judgment to respondents
on the ground that they did not actually prevent
petitioner from escaping. The undisputed facts instead
demonstrate that petitioner was seized, albeit
only momentarily, when respondents’ bullets hit her.
The case should therefore be remanded for further proceedings
to determine whether respondents in fact committed
a constitutional violation for which they could be
liable for damages.

 

10

I. THE APPLICATION OF RESTRAINING PHYSICAL
FORCE CAN EFFECT A TEMPORARY SEIZURE EVEN
IF THE SUBJECT DOES NOT YIELD

While “encounters between citizens and police officers
are incredibly rich in diversity,” a Fourth Amendment
seizure can occur in only one of two ways: by a
“show of authority,” such as a command to halt, or “by
means of physical force.” Terry v. Ohio, 392 U.S. 1, 13,
19 n.16 (1968). To effect a seizure by physical force, a
law-enforcement officer must intentionally apply physical
force to a subject in a manner objectively designed
to restrain him. Unlike a show-of-authority seizure,
however, a physical-force seizure does not necessarily
require that the officer succeed in stopping the subject;
a subject’s failure to yield shortens the seizure, but does
not negate it.

A. A Physical-Force Seizure Under The Fourth Amendment
Requires Intentional Application Of Restraining Physical
Force By Law Enforcement

As the Court has recognized, a law-enforcement officer’s
application of physical force to a subject can in
itself constitute a Fourth Amendment seizure. See, e.g.,
Hodari D., 499 U.S. at 626; Terry, 392 U.S. at 19 n.16.
In particular, a subject may be seized when he is physically
impacted by the intentional use of restraining force.

The threshold defining feature of a physical-force
seizure is an actual physical impact. An encounter that
“does not involve the application of any physical force”—
e.g., where an officer reaches for the subject but whiffs—
cannot constitute a seizure by physical force. Hodari
D., 499 U.S. at 625 (emphasis added). As the Court has
emphasized, “neither usage nor common-law tradition
makes an attempted seizure a seizure,” id. at 626 n.2.

 

11

For example, although at common law even “the slightest
application of physical force” could in some circumstances
amount to an “ ‘arrest,’ ” at least some impact
was required. Id. at 625 (quoting Asher L. Cornelius,
The Law of Search and Seizure 163-164 (2d ed. 1930));
see ibid. (quoting Cornelius’s description of commonlaw
decision in which the distinction between an attempted
and an actual arrest turned on whether “the
bailiff had touched” the suspect) (citation omitted); id.
at 624-625 (citing Whithead v. Keyes, 85 Mass. (3 Allen)
495, 501 (1862) (defining an arrest by reference to “laying
[officer’s] hand on” subject)); Restatement of Torts
§ 41, cmt. h (1934) (explaining that “mere touching”
could constitute an arrest only when the officer has lawful
arrest authority) (cited at Hodari D., 499 U.S. at
624-625).

The impact of the physical force must be “intentional”
rather than “accidental.” Brower v. County of Inyo,
489 U.S. 593, 596 (1989). As the Court has observed,
“the word ‘seizure’ * * * can hardly be applied to an
unknowing act.” Ibid. Thus, “a Fourth Amendment seizure
does not occur whenever there is a governmentally
caused termination of an individual’s freedom of movement,
* * * but only when there is a governmental termination
of freedom of movement through means intentionally
applied.” Id. at 596-597. A “parked and unoccupied
police car slip[ping] its brake and pin[ning] a
passerby against a wall” is not a seizure—even “if the
passerby happened * * * to be a serial murderer for
whom there was an outstanding arrest warrant” who
“was in the process of running away from two pursuing
constables.” Id. at 596. But a police car “pull[ing] alongside
[a suspect’s] fleeing car and sideswip[ing] it, pro

 

12

ducing [a] crash,” would be a seizure, unless the sideswipe
was “unintended.” Id. at 596-597; see County of
Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (finding
no seizure where police officer accidentally struck suspect
thrown from motorcycle during high-speed pursuit).

In addition to impacting the subject and being intentional,
the physical force must be designed “to restrain
movement.” Hodari D., 499 U.S. at 626. It would be
anomalous, to say the least, for a calming hand on the
shoulder of a crime victim, or a firm handshake at the
beginning of a consensual interview, to constitute a
Fourth Amendment “seizure,” and this Court’s definition
of the term has not encompassed such actions. In
defining a “seizure,” the Court has, for example, looked
to the common-law definition of “arrest,” under which
force would constitute an arrest only when applied “for
th[e] purpose” of “making the arrest.” Id. at 624-625
(quoting Cornelius 163). See Whithead, 85 Mass. (3 Allen)
at 501(“[A]n officer effects an arrest of a person whom
he has authority to arrest, by laying his hand on him for
the purpose of arresting him.”) (emphasis added; cited
at Hodari D., 499 U.S. at 624); see, e.g., Restatement
§ 112, cmt. a (explaining that physical contact when
“acting in the exercise of a privilege to arrest * * * constitutes
an arrest, if it is imposed for the purpose of
making an arrest”).

As in similar law-enforcement contexts, the proper
characterization of an officer’s force does not require an
inquiry into either the officer’s or the subject’s subjective
beliefs. See, e.g., Brendlin v. California, 551 U.S.
249, 260 (2007) (objective approach to determining “the
intent of the police” in a show-of-authority traffic stop);
see also, e.g., Michigan v. Bryant, 562 U.S. 344, 361 (2011)
(objective approach to determining “ ‘primary purpose’

 

13

of an interrogation” under the Confrontation Clause);
United States v. Leon, 468 U.S. 897, 922 & n.23 (1984)
(objective approach to determining officer’s “good faith”
reliance on a warrant) (citation omitted). The critical
issue is “the intent of the police as objectively manifested,”
rather than either “the motive of the police for
taking the intentional action,” Brendlin, 551 U.S. at 260,
or any perceptions of police conduct that might differ
from a reasonable innocent person’s, see, e.g., Florida
v. Bostick, 501 U.S. 429, 438 (1991). The Court has explained,
for example, that because a roadblock “is designed
to produce a stop by physical impact if voluntary
compliance does not occur,” it is irrelevant whether officers
had the “subjective intent” that such physical impact
in fact occur. Brower, 489 U.S. at 598. Conversely,
the Court has not treated the mere happenstance of
some intentional physical contact by law enforcement as
an invitation to delve into an officer’s subjective motivations
or a subject’s individual beliefs. See INS v. Delgado,
466 U.S. 210, 220-221 (1984) (applying objective
standard to find no show-of-authority seizure where
person was “tapped on the shoulder” and asked for immigration
paperwork).

B. A Subject’s Failure To Yield Affects The Duration, But
Not The Existence, Of A Physical-Force Seizure

An officer’s intentional application of restraining
physical force need not actually succeed in restraining
the subject in order to constitute a seizure. As this
Court explained in Hodari D., submission to an officer’s
actions is an element only of show-of-authority seizures,
not physical-force seizures. In the context of a physicalforce
seizure, a subject’s non-submission is relevant to
the seizure’s duration—which lasts only as long as the
force is being applied—not to its existence.

 

14

1. In Hodari D., the Court rejected a criminal defendant’s
argument that he was seized within the meaning
of the Fourth Amendment while running from a pursuing
police officer. See 499 U.S. at 623, 629. The Court
reasoned that even “assuming that [the officer’s] pursuit
* * * constituted a ‘show of authority’ enjoining
[the defendant] to halt,” the defendant was not seized
during the chase “since [he] did not comply with that
injunction.” Id. at 629. As a result, the cocaine that the
defendant tossed away before he was “tackled” at the
end of the chase was “not the fruit of a seizure,” and not
subject to suppression. Ibid.

The Court framed the question presented in the case
as “whether, with respect to a show of authority as with
respect to application of physical force, a seizure occurs
even though the subject does not yield.” Hodari D.,
499 U.S. at 626 (emphasis added). In “hold[ing] that it
does not,” the Court explained that the Fourth Amendment’s
reference to “seizures” draws meaning from the
common-law definition of an arrest, which “requires either
physical force * * * or, where that is absent, submission
to the assertion of authority.” Ibid. The Court
accordingly held that a “show of authority” seizure has
two elements: the “officer’s words and actions” must
objectively “convey[] * * * to a reasonable person” that
“he [is] being ordered to restrict his movement,” id. at
628, and the subject must submit to the officer’s authority,
id. at 626. The Court emphasized, however, that a
physical-force seizure does not require that second element,
and can instead occur based on the “application
of physical force to restrain movement, even when it is
ultimately unsuccessful.” Ibid.

The Court recognized that “[f ]rom the time of the
founding to the present, the word ‘seizure’ has meant a

 

15

‘taking possession’ ” and “[f ]or most purposes at common
law, the word connoted not merely grasping, or applying
physical force to, the animate or inanimate object
in question, but actually bringing it within physical control.”
Hodari D., 499 U.S. at 624 (citation omitted). It
also acknowledged that “one would not normally think
that the mere touching of a person would suffice” to constitute
a “seizure.” Id. at 626 n.2. The Court observed
that in the context of “an arrest, however—the quintessential
‘seizure of the person’ under our Fourth Amendment
jurisprudence—the mere grasping or application
of physical force with lawful authority, whether or not
it succeeded in subduing the arrestee, was sufficient.”
Id. at 624. And it reasoned that “[t]he word ‘seizure’ ”
in the Fourth Amendment “readily bears” a meaning
that would encompass, for example, the grasping of a
suspect who is able to break free. Id. at 626.

2. Although the facts of Hodari D. itself involved a
show-of-authority seizure, no sound basis exists for disregarding
its explication of the requirements for a
physical-force seizure. The court of appeals deemed
that aspect of the Court’s decision to be “common law
dicta” and read other decisions of this Court to require
that “physical touch (or force) must terminate the suspect’s
movement” (or “otherwise cause the government
to have physical control over him”) in order to constitute
a seizure. Brooks v. Gaenzle, 614 F.3d 1213, 1221,
1223, 1224 (10th Cir. 2010), cert. denied, 562 U.S. 1200
(2011); see Pet. App. 7a (relying on Brooks). None of
this Court’s decisions, however, impose such a requirement,
or otherwise suggest that Hodari D.’s extensive
analysis of physical-force seizures is incorrect.

The court of appeals erred in viewing Hodari D.’s
discussion of physical-force seizures to conflict with

 

16

other decisions of this Court. As the court of appeals
has noted, see Brooks, 614 F.3d at 1219-1221, this Court
has “oft-repeated” that “the ‘seizure’ of a person within
the meaning of the Fourth Amendment” is the “meaningful
interference, however brief, with an individual’s
freedom of movement.” United States v. Jacobsen,
466 U.S. 109, 113 n.5 (1984) (collecting cases). That definition,
however, is consistent with Hodari D.’s recognition
that “with respect to application of physical force,
a seizure occurs even though the subject does not yield,”
499 U.S. at 626. Whether or not a subject yields, the
actual “application of physical force to restrain movement,”
ibid., can “interfer[e], however brief[ly], with
* * * freedom of movement,” Jacobsen, 466 U.S. at 113
n.5. Where, for example, someone has “broke[n] out of
[an officer’s] grasp,” Hodari D., 499 U.S. at 626, his
freedom of movement has been briefly impeded, even
though the officer has not “succeeded in subduing” him,
id. at 624.

The court of appeals’ submission requirement for a
physical-force seizure also finds no support in the specific
holdings of the decisions of this Court on which the
court of appeals relied. See Brooks, 614 F.3d at 1219-
1221. Two of the decisions concerned asserted seizures
that did not involve physical force at all. See Brendlin,
551 U.S. at 252 (traffic stop); United States v. Mendenhall,
446 U.S. 544, 547-549 (1980) (opinion of Stewart,
J.) (interview at an airport). One involved accidental,
rather than intentional, application of physical force,
and found that no seizure had occurred on that ground
alone. Lewis, 523 U.S. at 844. And the remainder involved
physical force, intentionally applied by police officers,
that indisputably terminated the subject’s movement.
See Brower, 489 U.S. at 594 (fatal collision with

 

17

a roadblock); Tennessee v. Garner, 471 U.S. 1, 4 (1985)
(fatal shot to the head); Terry, 392 U.S. at 7 (grabbing
suspect, spinning him around, and keeping him in place
for purposes of frisking him).

3. Although submission is not a prerequisite for a
physical-force seizure, its absence remains relevant to
the Fourth Amendment analysis, because it affects the
seizure’s length. “To say that an arrest is effected by
the slightest application of physical force, despite the
arrestee’s escape, is not to say that for Fourth Amendment
purposes there is a continuing arrest during the
period of fugitivity.” Hodari D., 499 U.S. at 625. When
the application of restraining force does not actually
succeed in bringing the subject within the officer’s
physical control, a seizure will be transitory—perhaps
instantaneous—in duration.

At common law, a “seizure [was] a single act, and not
a continuous fact.” Hodari D., 499 U.S. at 625 (quoting
Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471 (1874)).
Dictionary definitions from near the time of the Fourth
Amendment’s adoption are likewise consistent with the
understanding of a “seizure” as a single event. See, e.g.,
2 Noah Webster, An American Dictionary of the English
Language 67 (1828) (defining “seizure” as “the act
of laying hold on suddenly”) (capitalization omitted);
2 Samuel Johnson, A Dictionary of the English Language
(6th ed. 1785) (defining “seizure” as “the act of taking
forcible possession”) (capitalization omitted); Thomas
Dyche & William Pardon, A New General English Dictionary
(14th ed. 1771) (defining “seize” as “to lay or
take hold of violently or at unawares, wrongfully, or by
force”) (capitalization omitted); see also Manuel v. City
of Joliet, 137 S. Ct. 911, 927 (2017) (Alito, J., dissenting).

 

18

The Fourth Amendment incorporates that limitation.
As the Court has explained, if an officer “ha[s] laid
his hands upon [a subject] to arrest him,” but the subject
“ha[s] broken away,” “it would hardly be realistic
to say that” a subsequent event occurred “during the
course of an arrest.” Hodari D., 499 U.S. at 625. As
discussed above, see p. 16, supra, this Court has frequently
described a “seizure” as the “meaningful interference,
however brief, with an individual’s freedom of
movement.” Jacobsen, 466 U.S. at 113 n.5; see also
Terry, 392 U.S. at 19 n.16 (a seizure occurs “when the
officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen”).
When a law-enforcement officer makes physical contact
with a subject with force designed to restrain the subject,
the officer has “interfer[ed] * * * with an individual’s
freedom of movement.” Jacobsen, 466 U.S. at 113
n.5. When the subject flees and the application of force
ceases, however, the “brief ” restraint on liberty is over,
and the seizure has ended.

Accordingly, even if the subject was unreasonably
seized, any legal claim premised on that illegal seizure
would need to account for the seizure’s ephemeral character.
If, for example, the subject discarded evidence
after his escape, the Fourth Amendment’s exclusionary
rule could preclude admission of that evidence in a criminal
prosecution only if the discovery of the evidence
was, inter alia, “derivative of ” the illegal seizure and
insufficiently “attenuated” from the illegality. Utah v.
Strieff, 136 S. Ct. 2056, 2059, 2061 (2016). And any damages
claimed in a civil suit would be limited to harms
traceable to the brief moment of the seizure.

 

19

II. THIS COURT SHOULD VACATE THE DECISION BELOW
AND REMAND FOR FURTHER PROCEEDINGS

The lower courts erred in granting summary judgment
to respondents on the theory that petitioner was
not seized. A straightforward application of the test for
a physical-force seizure to the undisputed facts of this
case establishes that petitioner was momentarily seized
when respondents shot her, even though the shots did
not stop her from continuing to escape. This Court
should accordingly vacate the decision below and remand
so that the lower courts can address in the first
instance whether other grounds support the grant of
summary judgment.

A. When Petitioner Was Shot, She Was Momentarily Seized
By The Application Of Physical Force

Although many of the facts of this case are disputed,
the parties appear to agree on the ones that are critical
to the determination of whether petitioner was seized.
In particular, the parties appear to agree that respondents
approached and attempted to engage with petitioner
when she was in an SUV, Pet. App. 2a-3a, 11a;
see Pet. 5-6; Br. in Opp. 1-2; that petitioner saw respondents
outside the SUV and declined to open the
door or window to speak to them, see Pet. App. 3a, 11a;
Pet. 5-6; Br. in Opp. 1-2; that petitioner instead began
to drive forward, Pet. App. 3a, 11a; Pet. 6; Br. in Opp. 2;
and that respondents reacted by firing their weapons at
petitioner, who was struck by two of their bullets, Pet.
App. 3a-4a, 11a; Pet. 6; Br. in Opp. 2. Under those circumstances,
each bullet that struck petitioner constituted
an intentional application of physical force that
objectively manifested an intent to restrain her freedom
of movement—namely, her continued ability to operate

 

20

the SUV and to move forward. Petitioner was therefore
“seized” at the moment each bullet hit her.

The seizures, however, ended immediately after they
started. Neither shot stopped petitioner from fleeing.
Pet. App. 4a; Pet. 6; Br. in Opp. 3. And although petitioner
may have suffered injuries with continued physical
effects, see, e.g., Pet. Br. 5 (alleging temporary loss
of left-arm mobility), those effects do not in themselves
constitute a continuing application of physical force by
respondents that might qualify as a “seizure.” If the
bare fact of a subject’s physical injury were enough to
constitute a “seizure,” then a subject with a lingering
injury would implausibly be “seized” for the rest of her
life—even if she permanently eluded capture. Nothing
would support such an expansive interpretation of the
term.

B. This Court Should Remand For Further Consideration
Of Respondents’ Other Arguments In Support Of Summary
Judgment

The error in the lower courts’ conclusion about petitioner’s
seizure does not necessarily mean that summary
judgment was unwarranted, let alone that respondents
would ultimately be liable for damages. Indeed,
a lower court may well determine after further review
that respondents’ actions were lawful or, at least,
did not violate clearly established law.

1. The Fourth Amendment does not prohibit all “seizures,”
only “unreasonable” ones. U.S. Const. Amend.
IV; see, e.g., Elkins v. United States, 364 U.S. 206, 222
(1960). Accordingly, a “ ‘[s]eizure’ alone is not enough
for § 1983 liability.” Brower, 489 U.S. at 599. Instead,
a “claim that law enforcement officers used excessive
force to effect a seizure is governed by the Fourth

 

21

Amendment’s ‘reasonableness’ standard.” Plumhoff v.
Rickard, 572 U.S. 765, 774 (2014).

The Fourth Amendment’s reasonableness standard
balances “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham,
490 U.S. at 396 (citation and internal quotation
marks omitted). Thus, while Hodari D. suggests that a
modest use of force may amount to a seizure in some
circumstances, such a seizure is unlikely to significantly
intrude on the subject’s Fourth Amendment interests
and will often be reasonable. And this Court has recognized
that not all seizures—even those that would have
been “arrests” at common law—require probable cause
in order to be reasonable under the Fourth Amendment.
See Terry, 392 U.S. at 7, 27 (holding that a brief
protective physical seizure in which officer grabbed and
spun suspect was constitutional if supported by reasonable
suspicion).

In this case, respondents have maintained that their
use of force, although undisputedly substantial, was nonetheless
reasonable because petitioner was driving the
SUV in a manner that threatened their lives at the time
they fired. See, e.g., Br. in Opp. 2. If that is determined
to be correct, either on the current record or in light of
any further factual development, then respondents
would not have violated the Fourth Amendment at all.

2. In addition, respondents are entitled to qualified
immunity unless it was “clearly established at the time
of the challenged conduct” that they were violating petitioner’s
Fourth Amendment rights. Plumhoff, 572 U.S.
at 778 (citation and internal quotation marks omitted).
That qualified-immunity issue may be addressed at any

 

22

stage of the case, should be resolved at the earliest possible
opportunity, and may obviate any need to examine
whether a constitutional violation actually occurred. See
Pearson v. Callahan, 555 U.S. 223, 227 (2009); Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985).

Particularly in light of this Court’s decisions rejecting
excessive-force claims in potentially similar contexts,
respondents may ultimately be entitled to judgment on
qualified-immunity grounds. See, e.g., Brosseau v.
Haugen, 543 U.S. 194, 200 (2004) (per curiam) (finding
officer entitled to qualified immunity from suit for having
“sho[]t a disturbed felon, set on avoiding capture
through vehicular flight, when persons in the immediate
area [were] at risk from that flight”); see also Plumhoff,
572 U.S. at 775-778 (similar); cf. Mullenix v. Luna,
136 S. Ct. 305, 310 (2015) (per curiam) (“The Court has
thus never found the use of deadly force in connection
with a dangerous car chase to violate the Fourth Amendment,
let alone to be a basis for denying qualified immunity.”).

3. The court of appeals affirmed the district court’s
judgment based solely on its view that no “seizure” occurred
here, and it therefore did not have the opportunity
to address the officers’ alternative grounds for
affirmance. See Pet. App. 6a-9a. Because this Court is
“a court of review, not of first view,” Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005), the appropriate course is to
vacate the decision below and remand to allow the lower
courts to consider those issues in the first instance.

 

23

CONCLUSION

The judgment of the court of appeals should be
vacated and the case should be remanded for further
proceedings.

Respectfully submitted.

NOEL J. FRANCISCO
Solicitor General

BRIAN A. BENCZKOWSKI
ERIC S. DREIBAND
Assistant Attorneys General

ERIC J. FEIGIN
Deputy Solicitor General

ALEXANDER V. MAUGERI
Deputy Assistant Attorney
General

REBECCA TAIBLESON
Assistant to the Solicitor
General

TOVAH R. CALDERON
JENNY C. ELLICKSON
BRANT S. LEVINE
Attorneys

FEBRUARY 2020