John Kramer
John Kramer · March 25, 2021

Arlington, Virginia—Today, the Supreme Court held in Torres v. Madrid that a woman who was shot in the back by plain-clothed police officers may proceed with her Fourth Amendment challenge to the shooting. In a 5–3 decision, the Court rejected the officers’ argument that Roxanne Torres was not “seized” by their bullets merely because she was not immediately killed or incapacitated.

“The Supreme Court’s decision in Torres v. Madrid is a win for government accountability and our constitutional rights,” said Institute for Justice (IJ) Attorney Jaba Tsitsuashvili. “The Court made clear that the Fourth Amendment’s protection of our personal security applies whenever police use physical force to restrain a person.” In a friend-of-the-court brief, IJ joined a coalition of civil liberties groups to explain how a contrary holding would immunize a wide range of police violence from constitutional scrutiny.

The case arises from a lawsuit brought by Torres against two New Mexico State Police officers. Torres was sitting in her car when two people she could not identify as police officers tried to open her locked car door. The officers were apparently in the area looking for someone else. Thinking she was being carjacked, Torres started driving away. In response, the officers fired a barrage of bullets—two into Torres’ back and thirteen into her car—that left her permanently injured. Torres, wounded but able to continue driving, eventually got herself to a hospital.

The 10th U.S. Circuit Court of Appeals tossed Torres’ case against the officers out, holding that because their bullets did not immediately incapacitate Torres, they did not “seize” her despite their intentional use of deadly force. The Supreme Court rightly reversed.

“We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued,” wrote Chief Justice John Roberts for the Court. Relying on the common law of arrest, the Court held that for physical force, it is the officers’ conduct—not the victim’s response—that dictates whether a seizure has occurred.

The Court rejected the idea, laid out by three dissenting Justices, that old cases on the topic could not govern the officers’ use of bullets, because those cases dealt only with the “laying on of hands.” In rejecting this “artificial line,” the Court recognized that a seizure “can be as readily accomplished by a bullet as by the end of a finger.” It went on to explain: “We will not carve out this greater intrusion on personal security from the mere-touch rule just because founding-era courts did not confront apprehension by firearm.”

“The Supreme Court’s decision today is an important step towards securing Americans’ persons and property,” said IJ Senior Attorney Robert Frommer. “It wisely recognizes that government actors must justify their actions when they use force to violate our personal security, even if that force does not lead to our immediate incapacitation. And as the Court correctly emphasized, the Fourth Amendment’s protections apply no matter what type of force those actors use.”

“Americans can only be secure in their constitutional rights when they can hold officials accountable for violating them,” said Scott Bullock, president and general counsel for the Institute for Justice. “Today’s decision is a victory not just for government accountability, but for ensuring that our right to be secure in our persons and property is just as robust as the Founders intended.”