Bloomberg Law
Oct. 14, 2020, 4:09 PMUpdated: Oct. 14, 2020, 7:23 PM

Scalia, Sniper Feature in High Court Police-Shooting Argument (1)

Jordan S. Rubin
Jordan S. Rubin

Justice Samuel Alito asked if pitchers hitting batters and snipers shooting targets constituted “seizures” during Supreme Court argument Wednesday over the meaning of the Fourth Amendment.

How those hypotheticals and other issues raised during the argument are resolved could affect whether the woman at the center of the dispute, Roxanne Torres, can sue officers for excessive force. They shot her, but she got away, an escape that could limit her legal options. A decision in the case is expected by late June.

The justices are grappling with the original meaning of “seizure” and how an opinion by the late Justice Antonin Scalia in California v. Hodari D applies. The officers’ lawyer, Mark Standridge, argued that Torres wasn’t seized because they didn’t have control over her, and that language in Hodari D favorable to Torres is “dicta” unnecessary to that case’s outcome, so it shouldn’t help her. Scalia said in that case that “mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient” for a seizure.

Arguing for Torres, Orrick’s Kelsi Corkran said an appeals court ruling against Torres “conflicts with the ordinary meaning of the word ‘seizure’ at the time of the Fourth Amendment’s adoption, and it conflicts with this Court’s precedent.” The U.S. Solicitor General’s office, represented by Rebecca Taibleson, supported Torres at the telephonic argument.

The case arose in the early morning of July 15, 2014, when New Mexico State Police officers Janice Madrid and Richard Williamson shot Torres at an apartment complex in Albuquerque while she was in a vehicle. The officers were there to arrest another woman.

The officers say they wanted to see if Torres was the one they were looking for, while Torres says she thought they were carjackers. When they approached, Torres said she drove away and the officers say she drove at them. The officers shot at her vehicle 13 times, hitting her twice in the back.

Torres tried to sue them in 2016. Lower courts blocked the suit and said the officers are entitled to qualified immunity, reasoning they hadn’t technically seized Torres under the Fourth Amendment, which bars unreasonable searches and seizures, because she got away.

The justices put forth a parade of hypotheticals during the argument to test the issue, some of which focused on whether the officer actually touches the person rather than making contact with an instrument or projectile.

Alito asked if a batter hit by a pitcher is seized, or if a person shot by a military sniper 1,000 yards away is seized, suggesting he didn’t believe that the answer could be yes in either instance. Chief Justice John Roberts asked whether it’s a seizure if the police had tried to shoot her tires but shot her instead.

That would be a seizure, Corkran said, “because they have physically impacted her through means intentionally applied.” She cited a 1604 case, the Countess of Rutland, where, as the lawyer explained, “the sergeant of arms effectuated the seizure by touching the Countess with the edge of the mace in declaring her his prisoner.”

Hodari D, Dickens

Justice Elena Kagan asked both sides about the Scalia-authored precedent that includes language potentially favorable for Torres even though the defendant lost in that case. The court held the defendant wasn’t seized when he discarded drugs.

Kagan told Standridge he was using an “impoverished understanding of what precedent is as opposed to what dicta is.”

Corkran stressed the important takeaway from that case is that the common law of arrest defines a Fourth Amendment seizure. The founding generation, she said, “recognized that the infliction of physical force on the body is itself an intrusion regardless of whether the person is able to walk away.”

That led Justice Neil Gorsuch to suggest the common law argument doesn’t help Torres. He said such arrests “arose in the Dickensian debt collector process, that if you could get a hand on somebody through the window of the house, that then enabled you to go -- go in and grab them inside the house.” Even under that standard, Gorsuch observed, there’s still the issue of whether it’s necessary for an officer to have laid their hands on a person rather than using a projectile.

Standridge picked up on Gorsuch’s Dickensian point, saying that body of law arose in a very narrow and limited context. “The constabulary and the bailiffs of the late 18th Century are far different from our modern police force of today,” he said.

The chief justice challenged that understanding, saying “the Fourth Amendment was designed to protect at least the level of bodily integrity, personal security that was secured at common law.” Roberts said “our cases certainly look to common law precedents about arrest, even if by, you know, Dickens or anybody else.”

The case is Torres v. Madrid, U.S., No. 19-292, oral argument 10/14/20.

(Adds argument detail)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Tom P. Taylor at