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
[March 25, 2021]
Justice Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting.
The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a
Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.
Until today, a
Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the
Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it.
This case began when two Albuquerque police officers approached Roxanne Torres on foot. The officers thought Ms. Torres was the subject of an arrest warrant and suspected of involvement in murder and drug trafficking. As it turned out, they had the wrong person; Ms. Torres was the subject of a different
arrest warrant. As she saw the officers walk toward her, Ms. Torres responded by getting into her car and hitting the gas. At the time, Ms. Torres admits, she was “tripping out bad” on methamphetamine. Fearing the oncoming car was about to hit them, the officers fired their duty weapons, and two bullets struck Ms. Torres while others hit her car.
None of that stopped Ms. Torres. She continued driving—over a curb, across some landscaping, and into a street, eventually colliding with another vehicle. Abandoning her car, she promptly stole a different one parked nearby. Ms. Torres then drove over 75 miles to another city. When she eventually sought medical treatment, doctors decided she needed to be airlifted back to Albuquerque for more intensive care. Only at that point, a day after her encounter with the officers, was Ms. Torres finally identified and arrested. Ultimately, she pleaded no contest to assault on a police officer, aggravated fleeing from an officer, and the unlawful taking of a motor vehicle.
More than two years later, Ms. Torres sued the officers for damages in federal court under
42 U. S. C. §1983. She alleged that they had violated the
Fourth Amendment by unreasonably “seizing” her. After discovery, the officers moved for summary judgment. The district court granted the motion, and the court of appeals affirmed. Individuals like Ms. Torres are free to sue officers under New Mexico state law for assault or battery. They may also sue officers under the
Fourteenth Amendment for conduct that “shocks the conscience.” But under longstanding circuit precedent, the courts explained, a
Fourth Amendment “seizure” occurs only when the government obtains “physical control” over a person or object. Because Ms. Torres “managed to elude the police for at least a full day after being shot,” the courts reasoned, the officers’ bullets had not “seized” her; any seizure took place only when she was finally arrested back in Albuquerque the following day. Torres
769 Fed. Appx. 654, 657 (CA10 2019).
Now before us, Ms. Torres argues that this Court’s decision in California
v. Hodari D.
499 U.S. 621
(1991), “compel[s] reversal.” Brief for Petitioner 25. As she reads it, Hodari D.
held that a
Fourth Amendment seizure takes place whenever an officer shoots or even “mere[ly] touch[es]” an individual with the intent to restrain. Brief for Petitioner 15.
Whatever one thinks of Ms. Torres’s argument, one thing is certain: Hodari D.
has generated considerable confusion. There, officers chased a suspect on foot. 499 U. S., at 623. Later, the suspect argued that he was “seized” for purposes of the
Fourth Amendment the moment the chase began. See id.
, at 625. Though he
fled, the suspect argued, a “reasonable person” would not have felt at liberty given the officers’ “show of authority,” so a
Fourth Amendment seizure had occurred. Id.
, at 627–628.
The Court rejected this argument. In doing so, it explained that, “[f]rom the time of the founding to the present, the word ‘seizure’ has meant a ‘taking possession.’ ” Id.
, at 624. Because the defendant did not submit to the officers’ show of authority, the Court reasoned, the officers’ conduct amounted at most to an attempted seizure. See id.
, at 626, and n. 2. And “neither usage nor common-law tradition makes an attempted
seizure a seizure.” Ibid.
At the same time, and as Ms. Torres emphasizes, the Court didn’t end its discussion there. It proceeded to imagine a different and hypothetical case, one in which the officers not only chased the suspect but also “appl[ied] physical force” to him. In these circumstances, the Court suggested, “merely touching” a suspect, even when officers fail to gain possession, might qualify as a seizure. Id.
, at 624–625.
Unsurprisingly, these dueling passages in Hodari D.
led to a circuit split. For the first time, some lower courts began holding that a “mere touch” constitutes a
Fourth Amendment “seizure.” Others, however, continued to adhere to the view, taken “[f]rom the time of the founding to the present,” that the word “seizure” means “taking possession.” Id
., at 624 (internal quotation marks omitted). We took this case to sort out the confusion.
As an initial matter, Ms. Torres is mistaken that Hodari D.
’s discussion of “mere touch” seizures compels a ruling in her favor. Under the doctrine of stare decisis
, we normally afford prior holdings of this Court considerable respect. But, in the course of issuing their holdings, judges sometimes include a “witty opening paragraph, the background information on how the law developed,” or “digressions speculating on how similar hypothetical cases might be resolved.” B. Garner et al., The Law of Judicial Precedent 44 (2016). Such asides are dicta. The label is hardly an epithet: “Dicta may afford litigants the benefit of a fuller understanding of the court’s decisional path or related areas of concern.” Id.
, at 65. Dicta can also “be a source of advice to successors.” Ibid.
But whatever utility it may have, dicta cannot bind future courts.
This ancient rule serves important purposes. A passage unnecessary to the outcome may not be fully considered. Parties with little at stake in a hypothetical question may afford it little or no adversarial testing. And, of course, federal courts possess no authority to issue rulings beyond the cases and controversies before them. If the respect we afford past holdings under the doctrine of stare decisis
may be justified in part as an act of judicial humility, respecting that doctrine’s limits must be too. Fewer things could be less humble than insisting our every passing surmise constitutes a rule forever binding a Nation of over 300 million people. No judge can see around every corner, predict the future, or fairly resolve matters not at issue. See, e.g.
, 6 Wheat. 264, 399–400 (1821); Central Va. Community College
546 U.S. 356
, 363 (2006).
On any account, the passage in Hodari D.
Ms. Torres seeks to invoke was dicta. The only question presented in that case was whether officers seize a defendant by a show of authority without
touching him. The Court answered that question in the negative. The separate question whether a “mere touch” also
qualifies as a seizure was not presented by facts of the case. No party briefed the issue. And the opinion offered the matter only shallow consideration, resting on just three sources: A state court opinion from the 1860s, a “comment” in the 1934 Restatement of Torts, and a 1930s legal treatise. See 499 U. S., at 624–625.
Already some lower courts, including those below, have recognized that Hodari D.
’s aside does not constitute a binding holding. See Brooks
, 614 F.3d 1213, 1220–1221 (CA10 2010); Henson
v. United States
, 55 A.3d 859, 864–865 (D. C. 2012). Today’s majority seems to accept the point too. It acknowledges that Hodari D.
“principally concerned a show of authority.” Ante
, at 4. And it says it intends to rule for Ms. Torres “independently” of Hodari D. Ante
Seeking to carry that burden, the majority picks up where Hodari D
.’s dicta left off. It contends that an officer “seizes” a person by merely touching him with an “intent to restrain.” Ante
, at 9. We are told that a touch is a seizure even if the suspect never stops or slows down; it’s a seizure even if he evades capture. In all the years before Hodari D.
’s dicta, this conclusion would have sounded more than a little improbable to most lawyers and judges—as it should still today. A mere touch may be a battery. It may even be part of an attempted seizure. But the
Fourth Amendment’s text, its history, and our precedent all confirm that “seizing” something doesn’t mean touching it; it means taking possession.
Start with the text. The
Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As at least part of Hodari D.
recognized, “[f ]rom the time of the founding to the present,” the key term here—“seizure”—has always meant “ ‘taking possession.’ ” 499 U. S., at 624.
Countless contemporary dictionaries define a “seizure” or the act of “seizing” in terms of possession.[1
] This Court’s early cases reflect the same understanding. Just sixteen years after the
Fourth Amendment’s adoption, Congress passed a statute regulating the “seizure” of ships. See The Josefa Segunda
, 10 Wheat. 312, 322 (1825). This Court interpreted the term to require “an open, visible possession claimed,” so that those previously possessing the ship “understand that they are dispossessed, and that they are no longer at liberty to exercise any dominion on board of the ship.” Id.
at 325. Nor did the Court’s view change over time. In Pelham
, 9 Wall. 103, 106 (1870), the Court likewise explained that “[t]o effect [a] seizure” of something, one needed “to take” the thing “into his actual custody and control.” Id.
, at 107.
Today’s majority disputes none of this. It accepts that a seizure of the inanimate objects mentioned in the
Fourth Amendment (houses, papers, and effects) requires possession. Ante
, at 4. And when it comes to persons, the majority agrees (as Hodari D.
held) that a seizure in response to a “show of authority” takes place if and when the suspect submits to an officer’s possession. Ante
, at 15. The majority insists that a different rule should apply only
in cases where an officer “touches” the suspect. Here—and here alone—possession is not required. So, under the majority’s logic, we are quite literally asked to believe the officers in this case “seized” Ms. Torres’s person, but not
her car, when they shot both and both continued speeding down the highway.
The majority’s need to resort to such a schizophrenic reading of the word “seizure” should be a signal that something has gone seriously wrong. The
Fourth Amendment’s Search and Seizure Clause uses the word “seizures” once in connection with four objects (persons, houses, papers, and effects). The text thus suggests parity, not disparity, in meaning. It is close to canon that when a provision uses the same word multiple times, courts must give it the same meaning each time. Ratzlaf
v. United States
510 U.S. 135
, 143 (1994). And it is
canonical that courts cannot give a single word different meanings depending on the happenstance of “which object it is modifying.” Reno
v. Bossier Parish School Bd.
528 U.S. 320
, 329 (2000) (“[W]e refuse to adopt a construction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying”). To “[a]scrib[e] various meanings” to a single word, we have observed, is to “render meaning so malleable” that written laws risk “becom[ing] susceptible to individuated interpretation.” Ratzlaf
, 510 U. S., at 143 (internal quotation marks omitted). The majority’s conclusion that a single use of the word “seizures” bears two different meanings at the same time—indeed, in this very case—is truly novel. And when it comes to construing the Constitution, that kind of innovation is no virtue.
If more textual evidence were needed, the
Fourth Amendment’s neighboring Warrant Clause would seem to provide it. That Clause states that warrants must describe “the persons or things to be seized.” Once more, the Amendment uses the same verb—“seized”—for both persons and objects. Once more, it suggests parity, not some hidden divergence between people and their possessions. Nor does anyone dispute that a warrant for the “seizure” of a person means
a warrant authorizing officers to take that person into their possession
Against all these adverse textual clues, the majority offers little in reply. It admits
that its interpretation defies this Court’s teachings in Ratzlaf
by ascribing different meanings to the word “seizure” depending on “the object being seized.” Ante
, at 16. It says only that we should overlook the problem because “our cases” in the
Fourth Amendment context compel this remarkable construction. Ibid.
But it is unclear what cases the majority might have in mind for it cites none.
Instead, the majority proceeds to reason that the word “seizure” must
carry a different meaning for persons and objects because persons alone are “capable of fleeing” and have “an interest in doing so.” Ibid.
But that reasoning faces trouble even from Hodari D
., which explained that “[a] ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.” 499 U. S., at 624. Of course, as the majority observes, persons alone can possess “an interest” in fleeing. But, as Hodari D.
’s example shows, they can have as much (or more) interest in fleeing to prevent the seizure of their possessions as they do their persons. Even today, a suspect driving a car loaded with illegal drugs may be more interested in fleeing to avoid the loss of her valuable cargo than to prevent her own detention. Yet the majority offers no reasoned explanation why the meaning of the word “seizure” changes when officers hit the suspect and when they hit her drugs and car as all three speed away.
Unable to muster any precedent or sound reason for its reading, the majority finishes its textual analysis with a selective snippet from Webster’s Dictionary and a hypothetical about a purse snatching. The majority notes that Webster equated a seizure with “ ‘the act of taking by warrant’ ” or “ ‘laying hold on suddenly.’ ” Ante
at 4. But Webster used the warrant definition to describe “the seizure of contraband goods”—a seizure the majority agrees
requires possession. Meanwhile, the phrase “laying hold on” a person connotes physical possession, as a look at the dictionary’s entire definition demonstrates. A “seizure,” Webster continued, is the “act of taking possession by force,” the “act of taking by warrant,” “possession,” and “a catching.”[2
] Read in full, Webster thus lends no support to the majority’s view.
The purse hypothetical, borrowed from Hodari D.
’s dicta, turns out to be even less illuminating. It supposes that “an ordinary user of the English language could remark: ‘She seized the purse-snatcher, but he broke out of her grasp.’ ” Ante
, at 5 (quoting Hodari D.
, 499 U. S., at 626). But what does that prove? The hypothetical contemplates a woman who takes possession
of the purse-snatcher, establishing a “grasp” for him to “break out of.” One doesn’t “break out of ” a mere touch.
Really, the majority’s answer to the Constitution’s text is to ignore it. The majority stands mute before the consensus among founding-era dictionaries, this Court’s early cases interpreting the word “seizure,” and the Warrant Clause. It admits its interpretation spurns the canonical interpretive principle that a single word in a legal text does not change its meaning depending on what object it modifies. All we’re offered is a curated snippet and an unhelpful hypothetical. Ultimately, it’s hard not to wonder whether the majority says so little about the Constitution’s terms because so little can be said that might support its ruling.
Rather than focus on text, the majority turns quickly to history. At common law, it insists, a “linkage” existed between the “seizure” of a person and the concept of an “arrest.” Ante
, at 5. Thus, the majority contends, we must examine how the common law defined that
term. But following the majority down this path only leads to another dead end. Unsurprisingly, an “arrest” at common law ordinarily required possession too.
Consider what some of our usual common law guides say on the subject. Blackstone defined “an arrest” in the criminal context as “the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.” 4 Commentaries on the Laws of England 286 (1769). Hale and Hawkins both equated an “arrest” with “apprehending,” “taking,” and “detain[ing]” a person. See 1 M. Hale, Pleas of the Crown 89, 93–94 (5th ed. 1716); 2 W. Hawkins, Pleas of the Crown 74–75, 77, 80–81, 86 (3d ed. 1739). And Hawkins stated that an arrest required the officer to “actually have” the suspect “in his Custody.” Id
., at 129. Any number of historical dictionaries attest to a similar understanding—defining an “arrest” as a “stop,” a “taking of a person,” and the act “by which a man becomes a prisoner.”[3
Common law causes of action point to the same common-sense conclusion. During the founding era, an individual who was unlawfully arrested could seek redress through the tort of false imprisonment. See 3 W. Blackstone, Commentaries on the Laws of England 127 (1768); see also Payton
v. New York
445 U.S. 573
, 592 (1980); Wallace
549 U.S. 384
, 388–389 (2007) (describing “false arrest and false imprisonment” as the “closest analogy” to an arrest without probable cause). That cause of action aimed to remedy “the violation of the right of personal liberty,” 3 Blackstone, supra
, at 127, which was “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct,” 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). Thus, false imprisonment—the violation of the right to move where one desired—required proof of “[t]he detention of the person” and “[t]he unlawfulness of such detention.” 3 Blackstone, supra
, at 127. That detention could occur “in a gaol, house, stocks, or in the street,” but it occurred only if a person was “under the custody
of another.” 1 E. East, Pleas of the Crown 428 (1806) (emphasis added).
Much the same held true in another related field. At common law, an officer could be held criminally liable for allowing an individual to escape after being arrested. And to prove the existence of an arrest in an “Indictment for an Escape,” a prosecutor had to “expressly shew” that “the Party was actually in the Defendant’s Custody
for a Crime, Action, or Commitment for it.” 2 Hawkins, supra
, at 132 (emphasis added). In other words, to demonstrate an arrest, a prosecutor had to prove the suspect had been “a Prisoner in [the officer’s] Custody
.” 1 Hale, supra
, at 112 (emphasis added). Here, too, an arrest required possession.
Once more, the majority’s primary answer to all this countervailing evidence is to ignore it. And once more, the majority’s own sources do more to hurt than help its cause. Lifting a line from Simpson
, 1 Esp. 431, 170 Eng. Rep. 409 (N. P. 1795), the majority suggests that the tort of false imprisonment at common law required no more than a “tapping on the shoulder.” Ante
, at 13 (citing 1 Esp., at 431–432, 170 Eng. Rep., at 409). But Simpson
could not have stated the possession requirement more plainly: “[W]ithout any taking possession
of the person,” there “is not, by law, a false imprisonment.” Id.
, at 432, 170 Eng. Rep., at 409 (emphasis added). And the court proceeded to reject
the plaintiff ’s claim for false imprisonment because the “constable did never take her into custody
(emphasis added). The majority offers no case finding the elements of false imprisonment satisfied by the mere touch of a fleeing person.
What remains of the majority’s response follows the same course. The majority asserts that claims for escape only required proof that the officer touched a suspect. Ante
, at 12. But to prove its point, the majority quotes a sentence from Hale stating that no
liability for escape exists “ ‘if the felon were not once in the hands of an officer.’ ” Ibid.
(quoting 2 Pleas of the Crown 93 (1736)). And as Hale proceeded to make plain, a felon “in the hands of an officer” was another way of saying the officer had “apprehended” or “taken” the felon into his “custody.” See id.
, at 89, 93–94 (5th ed. 1716).
Ultimately, the majority seeks to invoke Samuel Johnson’s dictionary and Payton
, 445 U. S., at 585, to confirm only the anodyne point that some sort of “linkage” existed at common law between the concepts of “arrests” and “seizures.” Ante
at 5. Yet, even here it turns out there is more to the story. The majority neglects to mention that Johnson proceeded to define an “arrest” as a “caption” of the person, “a stop or stay,” a “restraint of a man’s person, depriving him of his own will,” and “the beginning of imprisonment.” 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785). “To arrest,” Johnson said, was “[t]o seize,” “to detain by power,” “[t]o withhold; to hinder,” and “[t]o stop motion.” Ibid.
Meanwhile, the sentence fragment the majority quotes from Payton
turns out to have originated in Justice Powell’s concurrence in United States
423 U.S. 411
, 428 (1976). And looking to that sentence in full, it is plain Justice Powell, too, understood an arrest not as a touching, but as “the taking hold of one’s person.” Ibid.
Thus, even the majority’s best sources only wind up pointing us back to the traditional possession rule.
Unable to identify anything helpful in the main current of the common law, the majority is forced to retreat to an obscure eddy. Starting from Hodari D.
’s three references to “mere touch” arrests, the majority traces these authorities back to their English origins. The tale that unfolds is a curious one.
Before bankruptcy reforms in the 19th century, creditors seeking to induce repayment of their loans could employ bailiffs to civilly arrest delinquent debtors and haul them off to debtors prison. See Cohen, The History of Imprisonment for Debt and Its Relation to the Development of Discharge in Bankruptcy, 3 J. Legal Hist. 153, 154–155 (1982). But the common law also offered debtors some tools to avoid or delay that fate. Relevant here, the common law treated the home as a “castle of defence and asylum” so no bailiff could break into a debtor’s home to effect a civil arrest. 3 Blackstone, supra
, at 288; see also Treiman, Escaping the Creditor in the Middle Ages, 43 L. Q. Rev. 230, 233 (1927). Over time, the practice of “keeping house” became an increasingly popular way for debtors to evade the bailiff. Id.
Naturally, too, creditors railed against this “notorious” practice. See ibid.
And eventually Parliament responded to their clamor. The English bankruptcy statutes of 1542 and 1570 imposed serious penalties on debtors who “kept house” to avoid imprisonment. Cohen, supra
, at 157.
It was seemingly against this backdrop that the strange cases Hodari D.
’s dicta briefly alluded to and the majority has now dug up began to appear. Under their terms, a bailiff who could manage to touch a person hiding in his home, often through an open window or door, was deemed to have effected a civil “arrest.” See Genner
, 6 Mod. 173, 87 Eng. Rep. 928 (K. B. 1704). And because this mere touch was deemed an “arrest,” the bailiff was then permitted by law to proceed to “br[eak] the house . . . to seize upon” the person and render him to prison. Ibid.
, 87 Eng. Rep., at 929. Of course it was farcical to call a tap through an open window an “arrest.” But it proved a useful farce, at least for creditors.
One of the majority’s lead cases, Sandon
, El. Bl. & El. 935, 120 Eng. Rep. 758 (K. B. 1858), illustrates the absurdity of it all. There, a bailiff tried and failed “on several occasions” to arrest a debtor. Id.
, at 936, 120 Eng. Rep., at 758. Eventually, the bailiff spotted an open window on “an upper story,” so he ordered an assistant to fetch a ladder. Ibid.
But the debtor and his daughter noticed the ploy and “ran to the window,” slamming it closed. Ibid.
Unfortunately, in the excitement a window pane broke. Seeing the opportunity, the bailiff ’s assistant, while perched atop the ladder, thrust his hand through the opening and managed to touch the debtor. Id.
, at 936–937, 120 Eng. Rep., at 758. According to the court, this “arrest” was sufficient to justify the bailiff ’s later forcible entry into the home. Id.
, at 946–948, 120 Eng. Rep., at 762–763.
By everyone’s account, however, the farce extended only so far. Yes, the mere-touch arrest was a feature of civil bankruptcy practice for an unfortunate period. But the majority has not identified a single
founding-era case extending the mere-touch arrest rule to the criminal context. The majority points to two nineteenth-century treatises, but both reference only a case about a debt-collection arrest. See ante
, at 11–12 (citing 1 J. Backus, A Digest of Laws Relating to the Offices and Duties of Sheriff, Coroner and Constable 115–116, n. (c) (1812) (citing Genner
, 6 Mod. 173, 87 Eng. Rep. 928 (K. B. 1704)), and 1 R. Burn, The Justice of the Peace 275 (28th ed. 1837) (citing the same)). The majority nods to dicta from an 1854 Delaware state trial court, but that came long after the founding and the majority does not explain how it sheds light on the
Fourth Amendment’s original meaning. See ante
at 12 (citing State
, 5 Del. 487, 488)). And every remaining early American case the majority cites for its “mere touch” rule—from the founding through the Civil War—involved only civil debt-collection arrests. See ante
, at 4 (citing Whithead
, 85 Mass. 495 (1862)); ante
, at 6 (citing United States
, 24 F. Cas. 1084 (No. 14,568) (CC ED Pa. 1830)); ante
, at 6 (citing Butler
, 25 N. H. 251 (1852) (tax collection)). The same goes for the majority’s primary English authorities. See ante
, at 7 (citing Nicholl
, 2 Y. & J. 399, 400, 148 Eng. Rep. 974 (Exch. 1828); Sandon
, El. Bl. & El., at 940, 120 Eng. Rep., at 760)).
So what relevance do these obscure and long-abandoned civil debt-collection practices have for today’s case concerning a criminal arrest and brought under the
Fourth Amendment? The answer seems to be not much, for at least three reasons.
In the first place, the Amendment speaks of “seizures,” not “arrests.” To the extent the common law of arrests informs the Amendment’s meaning, we have already seen that an arrest normally meant taking possession of an arrestee. Maybe in one peculiar area, and for less than admirable reasons, the common law deviated from this understanding. But this Court usually presumes that those who wrote the Constitution used words in their ordinary sense, not in some idiosyncratic way. See District of Columbia
554 U.S. 570
, 576 (2008). And today’s majority supplies no evidence that anyone during the founding era understood the
Fourth Amendment to adopt the specialized definition of “arrest” from civil debt-collection practice.
Second, even if we were to hypothesize that people did
Fourth Amendment to incorporate this quirky rule, what would that tell us? Here, the officers tried to arrest Ms. Torres in a parking lot on behalf of the State for serious crimes, not break into her home on behalf of the local credit union for missing a payment. So even if we were willing to suppose that the founding generation understood the Constitution to incorporate the majority’s civil debt-collection arrest rule, nothing before us suggests they contemplated, let alone endorsed, injecting it into the criminal law and overriding settled doctrine equating arrests with possession.
Finally, even in the civil debt-collection context, the majority cannot point to even a single case suggesting that hitting a suspect with an object—an arrow, a bullet, a cudgel, anything
—as she flees amounted to an arrest. Instead, the majority’s cases hold only that the “laying of hands” on an arrestee constituted an arrest. Ante
at 7. Thus, even if the
Fourth Amendment did transpose the “mere touch” rule from the context of civil arrests into the criminal arena, it still
would not reach this case.
How does the majority respond? Again, it does little more than disregard the difficulties. The majority says there is “no reason to suspect” the common law defined criminal arrests of felons “any differently” than civil arrests of debtors. Ante
, at 13, 11. But the majority skips over all the evidence canvassed above showing that a criminal arrest required possession, not a mere touch. See Part III–B–1, supra
. It sails past its failure to identify any
case holding that a mere touch qualified as a criminal arrest. It ignores the fact Blackstone defined criminal and civil arrests differently.[4
] And it claims to find support in Hawkins’s statement that an officer could break into a house to capture an arrestee who escaped after being “ ‘lawfully arrested for any
Cause.’ ” Ante
at 13–14 (quoting 2 Pleas of the Crown 87 (1721)). Yet, the question before us isn’t what an officer might do after
making an arrest; it’s what constitutes an arrest in the first place
Rather than confront shortcomings like these, the majority asks us to glide past them. It suggests that importing the mere-touch rule into the criminal context is permissible because “no common law case” had occasion to reject that idea expressly. See ante
, at 16. But this gets things backwards. Today, for the first time, the majority seeks to equate seizures and criminal arrests with mere touches, attempted seizures, and batteries. It is for the majority
to show the
Fourth Amendment commands this result. No amount of rhetorical maneuvering can obscure how flat it has fallen: Even its own authorities do more to undermine than support its thesis. If common law courts never contemplated the majority’s odd definition of a criminal arrest—and this Court didn’t either for more than two centuries—that can only be further proof of its implausibility.
The majority asks us to glide past another problem too. It acknowledges that its debt-collection cases required a “laying on of hands” to complete an arrest. But it says we should overlook that rule as an accident of antiquity. “Touchings” by “firearm,” we are told, were unknown to “founding-era courts,” and no “officer used a gun to apprehend a suspect” before 1850. Ante
at 9. Never mind the shot heard round the world in 1775 and the adoption of the
Second Amendment. Never mind that as early as 1592, when a bailiff “feared resistance” and thus “brought with him” a gun “to arrest” someone, a common law court deemed it lawful because “[t]he sheriff or any of his ministers may for the better execution of justice carry with them offensive or defensive weapons.” Seint John’s Case
, 5 Co. Rep. 71b, 77 Eng. Rep. 162, 162–163 (K. B. 1592). Never mind that even tax collectors were carrying guns by the 1680s. E.g.
, Jones, T. 205, 205–206, 84 Eng. Rep. 1218, 1218–1219 (K. B. 1682). And never mind, too, that the majority’s problem isn’t limited to guns. It fails to cite any case in which a touching by any
weapon was deemed sufficient to effect an arrest. Seemingly, the majority would have us believe that bailiffs wielding anything but their fists were beyond the framers’ imagination.
Faced with all these problems, the majority tacks. It scrambles to locate a case—any case—suggesting that common law courts considered “touchings” by weapon enough to effect an arrest in the debt-collection context. Ultimately, the majority asks us to dwell at length on the Countess of Rutland’s case. In at least that lone instance, the majority promises, we will find bailiffs who arrested a debtor by touching her with an object (a mace) rather than a laying on of hands. See ante
, at 7–8 (citing Countess of Rutland’s Case
, 6 Co. Rep. 52b, 54a, 77 Eng. Rep. 332 (Star Chamber 1605)). But it turns out the dispute concerned whether a countess could be civilly arrested at all
, not when or how the arrest was completed. The court had no reason to (and did not) decide whether the bailiffs accomplished their arrest when they “shewed her their mace,” “touch[ed]” her with the mace, or “compelled the coachman to carry” her to jail. Id.
, at 54a, 77 Eng. Rep., at 336. And no one questions that these things together—a show of authority followed by compelled detention—have always been enough to complete an arrest. Not even minor royalty can rescue the majority.
So the majority tacks again. Now it asks us to dispense with the common law’s “laying on of hands” requirement as an “artificial” rule. Ante
, at 8. Distinguishing between “touchings” by hand and by weapon, it says, “calls to mind the unavailing defense of the person who ‘persistently denied that he had laid hands upon a priest, for he had only cudgelled and kicked him.’ ” Ibid.
But the quip exposes the majority’s bind. To get where it wishes to go, the majority not only must rework the rules found in the cases on which it relies, it must also abandon their rationale. The debt-collection cases treated the “laying on of hands” as a sign of possession
] Maybe the possession was more “constructive” or even fictional than “actual.” See ante
, at 16. But the idea was that someone who stood next to a debtor and laid hands on him could theoretically exercise a degree of control over his person. Common law courts never said the same of bailiffs who fired arrows at debtors, shot them with firearms, or cudgeled them as they ran away. Such conduct might have amounted to a battery
, but it was never deemed sufficient to constitute an arrest
. Doubtless that’s why when a tax collector shot a man in the eye with a (supposedly unavailable) firearm in 1682, the man sued the officer for “assault, battery, and wounding”—not
false imprisonment. See Dickenson
, Jones, T., at 205, 84 Eng. Rep., at 1218–1219.
The majority implores us to study the common law history of arrests. But almost immediately, the majority realizes it cannot find what it seeks in the history of criminal arrests. So it is forced to disinter a long-abandoned mere-touch rule from civil bankruptcy practice. Then it must import that rule into the criminal law. And because even that isn’t enough to do the work it wishes done, the majority must jettison both the laying on of hands requirement and the rationale that sustained it. All of which leaves us confusing seizures with their attempts and arrests with batteries.
The common law offers a vast legal library. Like any other, it must be used thoughtfully. We have no business wandering about and randomly grabbing volumes off the shelf, plucking out passages we like, scratching out bits we don’t, all before pasting our own new pastiche into the U. S. Reports. That does not respect legal history; it rewrites it.
If text and history pose challenges for the majority, so do this Court’s precedents. The majority admits (as it must) that the seizure of an object occurs only through taking possession. Ante
, at 4. The majority also admits (as it must) that the seizure of a person through a “show of authority” occurs only if the suspect submits to an officer’s possession. Ante
at 15. But the majority fails to acknowledge that this Court has also
said the same principle governs the seizure of persons effected through the use of force.
392 U.S. 1
(1968), the Court explained that “[o]nly
when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id.
, at 19, n. 16 (emphasis added). The restraint of liberty Terry
referred to was “interference” with a person’s “freedom of movement.” United States
466 U.S. 109
, 113, n. 5 (1984). As the Court put it in Brower
v. County of Inyo
489 U.S. 593
(1989), a decision issued just two years before Hodari D.
: “It is clear, in other words, that a
Fourth Amendment seizure” occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” 489 U. S., at 597 (emphasis deleted).
Rather than follow these teachings, the majority disparages them. After highlighting (multiple times) that Justice Scalia authored Hodari D.
’s dicta, the majority turns about and faults his opinion for the Court in Brower
for “improperly eras[ing] the distinction between seizures by control
and seizures by force
, at 14. The majority continues on to blame other of our decisions, too, for “hav[ing] not always been attentive” to this supposedly fundamental distinction. Ibid
But this Court has not been “[in]attentive” to a fundamental
Fourth Amendment distinction for over two centuries, let alone sought to “erase” it. In truth, the majority’s “distinction” is a product of its own invention. This Court has always recognized that how
seizures take place can differ. Some may take place after a show of authority, others by the application of force, still others after a polite request. But to be
a “seizure,” the same result has always been required: An officer must acquire possession.
If text, history, and precedent cannot explain today’s result, what can? The majority seems to offer a clue when it promises its new rule will help us “avoi[d] . . . line-drawing problems.” Ante
, at 15–16 (internal quotation marks omitted). Any different standard, the majority worries, would be “difficult to apply.” Ante
, at 15.
But if efficiency in judicial administration is the explanation, it is a troubling one. Surely our role as interpreters of the Constitution isn’t to make life easier for ourselves. Cf. Calabresi & Lawson, The Rule of Law as a Law of Law, 90 Notre Dame L. Rev. 483, 488 (2014). Nor, for that matter, has the majority even tried to show that the traditional possession rule—in use “[f]rom the time of the founding,” Hodari D
., 499 U. S., at 624—has proven unreasonably difficult to administer. Everyone agrees, too, that the possession rule will continue to govern when it comes to the seizures of objects and persons through a show of authority. So, rather than simplify things, the majority’s new rule for “mere touch” seizures promises only to add another layer of complexity to the law.
Even within its field of operation, the majority’s rule seems destined to underdeliver on its predicted efficiencies. The majority tells us that its new test requires an “objective intent to restrain.” Ante
, at 10. But what qualifies is far from clear. The majority assures us that a “tap on the shoulder to get one’s attention will rarely exhibit such an intent.” Ibid.
Suppose, though, the circumstances “objectively” indicate that the tap was “intended” to secure a person’s attention for a minute, a quarter hour, or longer. Would that be enough?
Then there’s the question what kind of “touching” will suffice. Imagine that, with an objective intent to detain a suspect, officers deploy pepper spray that enters a suspect’s lungs as he sprints away. Does the application of the pepper spray count? Suppose that, intending to capture a fleeing suspect, officers detonate flash-bang grenades that are so loud they damage the suspect’s eardrum, even though he manages to run off. Or imagine an officer shines a laser into a suspect’s eyes to get him to stop, but the suspect is able to drive away with now-damaged retinas. Are these “touchings”? What about an officer’s bullet that shatters the driver’s windshield, a piece of which cuts her as she speeds away? Maybe the officer didn’t touch the suspect, but he set in motion a series of events that yielded a touching. Does that count? While assuring us that its new rule will prove easy to administer, the majority refuses to confront its certain complications. Lower courts and law enforcement won’t have that luxury.
If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms. Torres should
be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy. The majority seems to give voice to this sentiment when it disparages the traditional possession rule as “artificial” and promotes its alternative as more sensitive to “personal security” and “new” policing realities. Ante
at 8–9. It takes pains to explain, too, that its new rule will provide greater protection for personal “privacy” interests, which we’re told make up the “essence” of the
Fourth Amendment. Ante
, at 16 (internal quotation marks omitted).
But tasked only with applying the Constitution’s terms, we have no authority to posit penumbras of “privacy” and “personal security” and devise whatever rules we think might best serve the Amendment’s “essence.” The
Fourth Amendment allows this Court to protect against specific governmental actions—unreasonable searches and seizures of persons, houses, papers, and effects—and that is the limit of our license. Besides, it’s hard to see why we should stretch to invent a new remedy here. Ms. Torres had ready-made claims for assault and battery under New Mexico law to test the officers’ actions. See N. M. Stat. Ann §41–4–12 (2020). The only reason this case comes before us under §1983 and the
Fourth Amendment rather than before a New Mexico court under state tort law seems to be that Ms. Torres (or her lawyers) missed the State’s two-year statutory filing deadline. See Tr. of Oral Arg. 16–17; Brief for Respondents 20, n. 4. That may be a misfortune for her, but it is hardly a reason to upend a 230 year-old understanding of our Constitution.
Nor, if we are honest, does today’s decision promise much help to anyone else. Like Ms. Torres, many seeking to sue officers will be able to bring state tort claims. Even for those whose only recourse is a federal lawsuit, the majority’s new rule seems likely to accomplish little. This Court has already said that a remedy lies under §1983 and the
Fourteenth Amendment for police conduct that “shocks the conscience.” County of Sacramento
523 U.S. 833
, 840, 845–847 (1998). At the same time, qualified immunity poses a daunting hurdle for those seeking to recover for less egregious police behavior. In our own case, Ms. Torres has yet to clear that bar and still faces it on remand. So, at the end of it all, the majority’s new rule will help only those who (1) lack a state-law remedy, (2) evade custody, (3) after some physical contact by the police, (4) where the contact was sufficient to show an objective intent to restrain, (5) and where the police acted “unreasonably” in light of clearly established law, (6) but the police conduct was not
“conscience shocking.” With qualification heaped on qualification, that can describe only a vanishingly small number of cases.
Even if its holding offers little practical assistance to anyone, perhaps the majority at least hopes to be seen as trying to vindicate “personal security” and the “essence” of “privacy” when it derides the traditional possession rule as “artificial.” But an attractive narrative cannot obscure the hard truth. Not only does the majority’s “mere touch” rule allow a new cause of action in exceedingly few cases (non-conscience-shocking-but-still-unreasonable batteries intended to result in possession that don’t achieve it). It supplies no path to relief for otherwise identical near-misses (assaults). A fleeing suspect briefly touched by pursuing officers may have a claim. But a suspect who evades a hail of bullets unscathed, or one who endures a series of flash-bang grenades untouched, is out of luck. That distinction is no less “artificial” than the one the law has recognized for centuries. And the majority’s new rule promises such scarce relief that it can hardly claim more sensitivity to “personal security” than the rule the Constitution has long enshrined.
In the face of these concerns, the majority replies by denying their relevance. It says there is “no call” to “surmise” that its decision rests on anything beyond an “analysis of the common law of arrest.” Ante
, at 17. But there is no surmise about it. The majority itself tells us that its decision is also
justified by the need to “avoi[d] . . . line-drawing problems,” protect “personal security,” and advance the “privacy” interests that form the “essence” of the
Fourth Amendment. Having invoked these sundry considerations, it’s hard to see how the majority might disown them.
To rule as it does, the majority must endow the term “seizure” with two different meanings at the same time. It must disregard the dominant rule of the common law. It must disparage this Court’s existing case law for erasing distinctions that never existed. It cannot even guarantee that its new rule will offer great efficiencies or meaningfully vindicate the penumbral promises it supposes. Instead, we are asked to skip from one snippet to another, finally landing on a long-abandoned debt-collection practice that must be reengineered to do the work the majority wishes done. Our final destination confuses a battery for a seizure and an attempted seizure with its completion. All this is miles from where the standard principles of interpretation lead and just as far from the Constitution’s original meaning. And for what? A new rule that may seem tempting at first blush, but that offers those like Ms. Torres little more than false hope in the end.
Respectfully, I dissent.