Two New Mexico police officers wanted to question Roxanne Torres as she sat in her parked car. Thinking the officers were carjackers, Torres began to drive away, at which point the officers shot her twice in the back to stop her. Although the police did not apprehend Torres immediately, they arrested her later at a hospital where she was receiving medical attention for the serious wounds she suffered in the shooting. Torres later brought a civil lawsuit alleging that the officers used excessive force against her in violation of the Fourth Amendment, which prohibits unreasonable “seizures” of persons and property. The United States Court of Appeals for the Tenth Circuit affirmed the dismissal of her lawsuit, however, reasoning that because the police did not apprehend her immediately after they shot her, she was not “seized” by the shooting. The Supreme Court agreed to review that decision in December 2019.

CAC filed an amicus curiae brief supporting Torres in the Supreme Court, explaining that the police officers “seized” her under the Fourth Amendment when they shot and wounded her.

As our brief explained, the Framers of the Fourth Amendment would have understood its reference to “seizures” of “persons” as incorporating the legal concept of an arrest. And under the common law of that era, any application of physical force for the purpose of detaining someone qualified as an arrest, whether or not the person eluded capture. Although the Fourth Amendment was not meant to freeze in place the law enforcement rules of the Founding era, applying the common law’s expansive concept of “arrest” to police shootings promotes the Amendment’s purpose—to shield people and their property from arbitrary intrusions by governmental officials. Without this rule, law enforcement officers who lack a valid justification would be able to shoot or otherwise physically harm individuals with no constitutional accountability whenever those individuals managed to escape from them.

Applying the common law rule here also vindicates the Framers’ understanding that when government officers violate Fourth Amendment rights, victims should be able to hold them accountable in civil lawsuits for damages—and that this deterrent is a key safeguard against government oppression. If physically harming a suspect is not a seizure whenever that person manages to elude police, even temporarily, then officers who commit such harm will be exempt from liability even when they had no legal justification for their actions. That would be contrary to the Fourth Amendment’s text and purpose.

In March 2021, the Supreme Court ruled in favor of Torres, holding that “the officers seized Torres by shooting her with intent to restrain her movement,” regardless of whether they succeeded in stopping her. Echoing our brief, the Court explained that “the common law considered the application of force to the body of a person with intent to restrain to be an arrest, no matter whether the arrestee escaped,” and it concluded that the Fourth Amendment incorporated this broad standard into the Amendment’s limits on seizures of the person. Law enforcement shootings are therefore regulated by the Fourth Amendment regardless of whether the victim escapes, and they are constitutional only when circumstances make the shooting reasonable.