Amicus Curiae Brief — Roxanne Torres, Petitioner v. Janice Madrid, et al.

Supreme Court briefFeb 6, 2020

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No. 19-292

IN THE

Supreme Court of the United States

___________

ROXANNE TORRES, Petitioner,

JANICE MADRID, ET AL., Respondents.

___________

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

___________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

BRIAN R. FRAZELLE

CLARE E. RIVA**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

February 6, 2020

* Counsel of Record

** Not admitted in D.C.;

supervised by principals of the firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

The Common Law’s Expansive Definition

of “Arrest” Should Inform the Meaning of

“Seizure” Under the Fourth Amendment ...

II. In Founding-Era Common Law, An Arrest

Included Any Use of Physical Force to

Subdue or Detain, Whether or Not the

Subject Was Ultimately Captured ..............

III. Applying the Common Law Rule Will Also

Vindicate the Framers’ Understanding

that Civil Damages Actions Would Be a

Key Deterrent Against Unreasonable

Intrusions on Persons and Property ..........

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Cases

Page(s)

Barrett v. Copeland,

18 Vt. 67 (1844) ......................................

Boyd v. United States,

116 U.S. 616 (1886) ................................

8, 22

Burlingham v. Wylee,

2 Root 152 (Conn. Super. Ct. 1794) .......

California v. Hodari D.,

499 U.S. 621 (1991) ................................ passim

Carpenter v. United States,

138 S. Ct. 2206 (2018) .................... 4, 10, 13, 21

Carroll v. United States,

267 U.S. 132 (1925) ................................

7, 8

City of Riverside v. McLaughlin,

500 U.S. 44 (1991) ..................................

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) ...........

Genner v. Sparkes,

1 Salk. 79 (1704)..................................... 15, 16

Gerstein v. Pugh,

420 U.S. 103 (1975) ................................

Horton v. California,

496 U.S. 128 (1990) ................................

Kyllo v. United States,

533 U.S. 27 (2001) ..................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................

Minnesota v. Carter,

525 U.S. 83 (1998) ..................................

Nicholl v. Darley,

2 Y. & J. 399 (1828) ................................

Payton v. New York,

445 U.S. 573 (1980) ................................

7, 9

Riley v. California,

573 U.S. 373 (2014) ................................

8, 21

Smith v. McGuire,

15 Ky. (5 Litt.) 302 (1824) ......................

State ex rel. Sadler v. Dist. Court of

Eighth Judicial Dist.,

225 P. 1000 (Mont. 1924) .......................

Tennessee v. Garner,

471 U.S. 1 (1985) ....................................

9, 14

Terry v. Ohio,

392 U.S. 1 (1968) ....................................

United States v. Benner,

24 F. Cas. 1084 (C.C.E.D. Pa. 1830) ......

United States v. Jacobsen,

466 U.S. 109 (1984) ................................

United States v. Jones,

565 U.S. 400 (2012) ................................

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) ................................

United States v. Mendenhall,

446 U.S. 544 (1980) ................................

United States v. Place,

462 U.S. 696 (1983) ................................

United States v. Ramsey,

431 U.S. 606 (1977) ................................

United States v. Se. Underwriters Ass’n,

322 U.S. 533 (1944) ................................

United States v. Watson,

423 U.S. 411 (1976) ................................

7, 8

Utah v. Strieff,

136 S. Ct. 2056 (2016) ............................

Weeks v. United States,

232 U.S. 383 (1914) ................................

Whitehead v. Keyes,

85 Mass. 495 (1862) ...............................

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) ...........

Williams v. Jones,

95 Eng. Rep. 193 (K.B. 1736) .................

Wilson v. Arkansas,

514 U.S. 927 (1995) ................................

6, 8

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) .................

TABLE OF AUTHORITIES – cont’d

Page(s)

Wyoming v. Houghton,

526 U.S. 295 (1999) ................................

6, 15

Statutes and Legislative Materials

1 Annals of Cong. (1789) .........................

42 U.S.C. § 1983 ......................................

1, 24

An Act to Enforce the Provisions of the

Fourteenth Amendment to the Constitution of the United States, and for other

Purposes, 17 Stat. 13 (1871) ................

Books, Articles, and Other Authorities

Akhil Reed Amar, Fourth Amendment

First Principles, 107 Harv. L. Rev. 757

(1994) ......................................................

Anthony J. Bellia Jr., Article III and the

Cause of Action, 89 Iowa L. Rev. 777

(2004) ......................................................

1 Joel Prentiss Bishop, Commentaries on

the Law of Criminal Procedure (1872) ..

Black’s Law Dictionary (2d ed. 1910) .......

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 (2009) ......................

1 Edward Hyde East, A Treatise of the

Pleas of the Crown (1803) ...................... 16, 20

TABLE OF AUTHORITIES – cont’d

Page(s)

3 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ...................................

5 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ...................................

Lawrence M. Friedman, Crime and Punishment in American History (1993) .....

Joseph D. Grano, Rethinking the Fourth

Amendment Warrant Requirement,

19 Am. Crim. L. Rev. 603 (1982) ...........

1 Matthew Hale, The History of the

Pleas of the Crown (1736) .................. 16, 18, 19

Charles M. Hepburn, Cases on the Law

of Torts (1915) ........................................

David R. Johnson, Policing the Urban

Underworld: The Impact of Crime on the

Development of the American Police,

1800–1887 (1979) ...................................

1 Samuel Johnson, A Dictionary of the

English Language (6th ed. 1785)........... 12, 20

Rollin M. Perkins, The Law of Arrest,

25 Iowa L. Rev. 201 (1940) .................... 17, 18

Richard Clarke Sewell, A Treatise on the

Law of Sherriff, with Practical Forms

and Precedents (1845) ............................

David A. Sklansky, The Fourth

Amendment and Common Law, 100

Colum. L. Rev. 1739 (2000)....................

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Carol S. Steiker, Second Thoughts About

First Principles, 107 Harv. L. Rev. 820

(1994) ......................................................

1 Noah Webster, An American Dictionary

of the English Language (1828) ............. 12, 13

2 Noah Webster, An American Dictionary

of the English Language (1828) .............

1 W.N. Welsby & Edward Beavan,

Chitty’s Collection of Statutes 1225–1864

with Notes Thereon (3d ed. 1865) ..........

4 W.N. Welsby & Edward Beavan,

Chitty’s Collection of Statutes 1225–1864

with Notes Thereon (3d ed. 1865) ..........

Ann Woolhandler, Patterns of Official

Immunity and Accountability, 37 Case

W. Res. L. Rev. 396 (1987) .....................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of

our Constitution’s text and history. CAC works in

our courts, through our government, and with legal

scholars to improve understanding of the Constitution and preserve the rights and freedoms it guarantees. CAC has a strong interest in ensuring that the

Constitution applies as robustly as its text and history require and accordingly has an interest in this

case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Respondents New Mexico State Police officers

Janice Madrid and Richard Williamson shot Petitioner

Roxanne Torres twice in the back as she drove away

from what she thought was an attempted carjacking.

Pet’r Br. 5. Although the police did not apprehend

Torres immediately after they shot her, they did apprehend her later at a hospital where she was receiving medical attention for the serious wounds she suffered in the shooting. Id. at 6.

When Torres attempted to bring a civil action under 42 U.S.C. § 1983 alleging that the police officers

had used excessive force against her, the district court

1 The parties have consented to the filing of this brief, and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amicus states that no counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

dismissed her case before it ever reached a jury on the

ground that she had not been “seized” within the

meaning of the Fourth Amendment. The court below

affirmed that result, reasoning that because the police

did not apprehend Torres immediately after they shot

her, she was not “seized” by the shooting. Pet. App. 7a.

The decision of the court below is wrong. The

Fourth Amendment regulates “seizures” of “persons,”

and such language was used interchangeably with the

term “arrest” when the Amendment was drafted and

ratified. At that time, moreover, the meaning of “arrest” under the common law was clear, long established, and widely known in both England and America. Under the common law rule, the application of

physical force for the purpose of detaining someone

constituted an arrest, whether or not the person

eluded capture, as this Court has already recognized.

See California v. Hodari D., 499 U.S. 621, 624 (1991)

(“an 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, though he may not succeed

in stopping and holding him” (quoting Whitehead v.

Keyes, 85 Mass. 495, 501 (1862))). Given the persistence of this rule over time, and the fact that private

citizens were heavily involved in law enforcement efforts in the eighteenth century, it would have been natural for the Fourth Amendment’s drafters and ratifiers

to understand that “seizures” of “persons” encompassed the expansive concept of an arrest that was recognized at common law.

Importantly, however, this Court should not suggest that the Fourth Amendment merely codifies the

rules of law enforcement that were prescribed by the

common law at the time of the Founding. The Fourth

Amendment broadly protects a right to be secure from

“unreasonable” searches and seizures, not merely a

right to be free from practices that were deemed illegal

at common law in the Founding era. While firmly established and widely known common law rules may

help give content to the meaning of the word “seizure”

and other words in the Amendment, neither text nor

history supports mechanically construing the Amendment as coextensive with the precise rules that common law judges and commentators had established in

England at the time it was ratified. And this Court

has not traditionally followed such an approach.

Notwithstanding that caveat, however, a variety of

considerations all militate in favor of applying the

common law’s expansive definition of “arrest” to the

Fourth Amendment’s prohibition on unreasonable seizures of the person.

Perhaps most significant, this Court has already

applied a different aspect of the very same common

law rule in the course of limiting the scope of personal

seizures under the Fourth Amendment. See Hodari D., 499 U.S. at 625-27 & n.3 (relying on this rule

to conclude that a “show of authority” seizure occurs

only when the subject actually submits to the officer’s

authority). This Court cannot credibly apply one aspect of a common law rule to limit the meaning of “seizure” but then abandon the flip side of that same rule

where it would expand the meaning of “seizure.” The

same analytical method employed in Hodari D. should

therefore be employed here.

Drawing on the common law definition of an “arrest” is also supported by the constitutional text. The

Fourth Amendment refers to “seizures” of “persons,”

and such language was used interchangeably with the

term “arrest” at the Founding. These words, therefore,

would naturally have been understood by those who

ratified the Amendment as incorporating the concept

of an arrest; then, as now, an arrest was “the

quintessential ‘seizure of the person.’” Id. at 624. And

the basic scope of an arrest under the common law was

not a matter of arcane knowledge. During this era, law

enforcement was largely an amateur affair carried out

by ordinary members of the community, and the common law rule persisted unchanged over generations.

Application of the common law rule here also promotes the aims of the Fourth Amendment. By all accounts, the Amendment is designed to shield the “security of individuals against arbitrary invasions by

governmental officials.” Carpenter v. United States,

138 S. Ct. 2206, 2213 (2018) (quotation marks omitted). But unless this Court applies the common law’s

broad definition of “arrest” here, law enforcement officers who lack a valid justification will be able to shoot

or otherwise physically harm individuals with no constitutional accountability—so long as those individuals successfully escape the officers’ violence. That result would significantly weaken the Amendment’s

value in protecting individual liberty from unjustified

government intrusions.

Moreover, unlike in some instances, adapting the

traditional common law rule to the contemporary policing context and the modern technological era does

not distort the practical implications of that rule in a

way that undermines its appropriateness and relevance. Adhering to that rule will also help avoid a disparity that might otherwise result between the Fourth

Amendment’s protections for property and its protections for a person’s own body.

Finally, recognizing the existence of a “seizure” in

cases like this one vindicates the Framers’ understanding that individuals would be able to seek redress

in actions for civil damages when government officers

unreasonably intruded on their persons or property in

violation of the Fourth Amendment. Taking their cue

from the seminal English decisions that inspired the

Amendment, the Framers anticipated that freedom

from unreasonable searches and seizures would be

preserved through tort actions against the offending

officers and that the ability to take such cases to a jury

was an essential safeguard against government oppression. But unless this Court adheres to the common law’s broad definition of “arrest,” officers who

physically harm suspects without sufficient legal justification will be exempt from liability whenever the

subject of their efforts manages to elude them, even

temporarily. That arbitrary result cannot be squared

with the text, history, or purpose of the Fourth Amendment.

In sum, the Framers adopted the Fourth Amendment in part to protect the American people from unreasonable applications of physical force by government officers seeking to detain them, and the Framers

viewed the ability to vindicate that right in court as a

key safeguard against the type of abusive government

practices against which they revolted at the Founding.

Applying the common law’s traditional definition of

“arrest” to seizures of the person under the Fourth

Amendment will simply facilitate the ability of people

like Torres to present their claims in court, where the

reasonableness of police officers’ decision to shoot

them may be assessed. This Court should reverse the

decision below and allow this case to proceed.

ARGUMENT

I. The Common Law’s Expansive Definition

of “Arrest” Should Inform the Meaning of

“Seizure” Under the Fourth Amendment.

In California v. Hodari D., this Court addressed

the scope of the term “seizure” under the Fourth

Amendment as it applies to “persons,” and it

interpreted that term by reference to the traditional

common law definition of “arrest.” 499 U.S. at 624-27.

A common law arrest, this Court explained, could take

place either through “a show of authority” followed by

“submission to the assertion of authority,” or by “application of physical force . . . even though the subject

does not yield.” Id. at 626. The latter type of arrest,

this Court also explained, could be “effected by the

slightest application of physical force, despite the arrestee’s escape.” Id. at 625. Torres now asks this

Court to do nothing more than confirm what it said in

Hodari D.—and hold that a Fourth Amendment seizure, just like a common law arrest, is completed by

“the mere grasping or application of physical force

with lawful authority, whether or not it succeeded in

subduing the arrestee.” Id. at 624.

This Court should do so. A variety of considerations all weigh in favor of applying the common law’s

broad definition of “arrest” to the seizure of persons

under the Fourth Amendment. At the same time, however, this Court should take care not to suggest that

the Fourth Amendment merely codifies the rules of

law enforcement conduct that were prescribed by the

common law at the time of the Founding.

A. In evaluating the scope of the Fourth Amendment’s protections, this Court has said that it “inquire[s] first whether the action was regarded as an

unlawful search or seizure under common law when

the Amendment was framed.” Wyoming v. Houghton,

526 U.S. 295, 299 (1999). The Court has used that approach in assessing whether a search or seizure is “unreasonable,” see Wilson v. Arkansas, 514 U.S. 927, 934

(1995) (based on common law principles, unannounced

police entry into a home can be reasonable when there

are valid law enforcement interests), and also in answering the prior question of whether a Fourth

Amendment “search” or “seizure” occurred in the first

place, see Hodari D., 499 U.S. at 624-27.

This approach is novel. Indeed, not until the 1990s,

two centuries after the Fourth Amendment’s ratification, did this Court squarely embrace it. Before then,

this Court’s decisions only occasionally relied on

Founding-era common law rules. And when they did,

they described the significance of those rules as

“shed[ding] light on . . . what the Framers of the

Amendment might have thought to be reasonable,” a

question that itself was “relevant” but not “dispositive.” Payton v. New York, 445 U.S. 573, 591 (1980);

see Carroll v. United States, 267 U.S. 132, 149 (1925)

(“The Fourth Amendment is to be construed in the

light of what was deemed an unreasonable search and

seizure when it was adopted, and in a manner which

will conserve public interests as well as the interests

and rights of individual citizens.” (emphasis added)).

Thus, established common law rules were sometimes taken into consideration alongside other factors

bearing on the reasonableness of a given practice, but

they were not mechanically incorporated into the

Fourth Amendment. See, e.g., United States v. Watson, 423 U.S. 411, 421 (1976) (adhering to traditional

rule where “[t]he balance struck by the common law”

had consistently prevailed in the states and in federal

legislation since the early 1790s); Gerstein v. Pugh,

420 U.S. 103, 115-16 (1975) (relying on common law

practice that “furnished the model for criminal procedure in America immediately following the adoption of

the Fourth Amendment,” in light of “indications that

the Framers of the Bill of Rights regarded it as a model

for a ‘reasonable’ seizure”).

To be sure, history has always been central to

Fourth Amendment analysis. But this Court has traditionally viewed the most relevant history to be the

controversies that prompted the Amendment’s adoption—in particular, the revolt against general warrants and writs of assistance on both sides of the Atlantic—and the Court has used that history to identify

the chief harms at which the Amendment was directed. See, e.g., Boyd v. United States, 116 U.S. 616,

624-30 (1886); Riley v. California, 573 U.S. 373, 403

(2014). This Court has also repeatedly consulted early

federal statutes authorizing searches and seizures

around the time of the Amendment’s ratification as a

means of gauging what was deemed an unreasonable

search and seizure when it was adopted. See, e.g., Carroll, 267 U.S. at 150-53; Watson, 423 U.S. at 420-21;

United States v. Ramsey, 431 U.S. 606, 616-19 (1977).

Until recently, the Court did not typically evaluate the

Fourth Amendment legitimacy of a government practice based on whether or not English common law permitted it.

This Court should not reflexively construe the

Fourth Amendment to match the precise contours of

Founding-era common law. Doing so would be at odds

with the Amendment’s plain text. “By its terms the

Fourth Amendment does not prohibit searches and seizures ‘illegal at common law;’ it prohibits searches and

seizures that are ‘unreasonable.’” David A. Sklansky,

The Fourth Amendment and Common Law, 100

Colum. L. Rev. 1739, 1774 (2000). The common law

backdrop may help “to give content to this term” by revealing “the meaning ascribed to it by the Framers of

the Amendment,” Wilson, 514 U.S. at 931, and so too

for other terms in the Amendment like “seizure.” But

the Amendment’s text and history do not support mechanically grafting onto it the intricacies of the rules

that English judges and commentators had developed

in the common law by the Founding era. Given the

Amendment’s

broad

prohibition

against

“unreasonable” practices, and its robust safeguarding

of a right to personal security, its Framers and ratifiers did not understand it to freeze “into constitutional

law those law enforcement practices that existed at the

time of the Fourth Amendment’s passage.” Payton,

445 U.S. at 591 n.33.

Had this Court blindly followed that approach in

the past, then today it would be constitutionally permissible for police officers to shoot dead an unarmed,

non-dangerous felony suspect to prevent his escape.

See Tennessee v. Garner, 471 U.S. 1, 11 (1985). The

common law, after all, “allowed the use of whatever

force was necessary to effect the arrest of a fleeing

felon.” Id. at 12. But that rule “arose at a time when

virtually all felonies were punishable by death” and

when technology made it difficult “to use deadly force

from a distance as a means of apprehension,” given the

“rudimentary” state of weapons—as a result of which

“[d]eadly force could be inflicted almost solely in a

hand-to-hand struggle.” Id. at 13-15. In light of those

realities, this Court refused to impose the common

law’s rule on the Fourth Amendment. Id.

As recognized in Garner, reflexively applying common law rules from the Founding era—even if it were

otherwise defensible as an interpretive matter—will

often subvert “the purposes of a historical inquiry” because of “sweeping change in the legal and technological context.” Id. at 13; see Payton, 445 U.S. at 591 n.33

(noting that when common law seizure rules were developed, “the kinds of property subject to seizure under

warrants had been limited to contraband and the

fruits or instrumentalities of crime”). Such an approach can result in arbitrarily limiting the scope and

protections of the Amendment, in contravention of its

text and original meaning. Indeed, in such cases this

approach would not even “assure . . . preservation of

that degree of privacy against government that existed

when the Fourth Amendment was adopted.” Carpenter, 138 S. Ct. at 2214 (quoting Kyllo v. United States,

533 U.S. 27, 34 (2001)).

Therefore, this Court should be careful not to suggest that the protections of the Fourth Amendment—

ratified by the American public with broad and flexible

language as a bulwark against unjustified government

intrusions on persons and property—are simply coextensive with the judge-made rules inherited from English common law.

B. Notwithstanding that important caveat, a variety of diverse considerations all militate in favor of applying the common law’s expansive definition of “arrest” to the Fourth Amendment’s prohibition on unreasonable seizures of the person.

To start, this Court has already applied a different

aspect of the common law’s definition of “arrest” in the

course of construing—and limiting—the scope of personal seizures under the Fourth Amendment. In Hodari D., this Court applied that common law rule in a

manner that narrowed the meaning of “seizure” and

hence limited the breadth of the Amendment. It would

be inconsistent for this Court to depart from that approach here, where application of the common law rule

expands the Amendment’s scope and protections.

Before Hodari D., this Court had established that a

seizure could occur “by means of physical force or show

of authority,” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968),

but it did not sharply distinguish these two methods

as separate forms of seizure governed by different

standards. That distinction was, at most, implicit in

some holdings. See Hodari D., 499 U.S. at 628 (noting

two examples). Instead, this Court held that a seizure

occurred only if, “in view of all of the circumstances

surrounding the incident, a reasonable person would

have believed that he was not free to leave,” and that

“circumstances that might indicate a seizure” included

“the threatening presence of several officers, the display of a weapon by an officer, some physical touching

of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer’s request might be compelled.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980) (emphasis

added).

In Hodari D., however, this Court drew a line of

cleavage between situations involving physical force

and those involving a show of authority. And it held

that where the police do not physically touch a suspect,

there is an additional requirement to establish that a

seizure occurred: the suspect must have actually submitted to the officers’ show of authority. See 499 U.S.

at 625-29. That decision was largely based on the common law standards governing “arrests.” See id. at 627

n.3 (confirming that the Court’s rationale was that

“the common law of arrest . . . . defines the limits of a

seizure of the person” (emphasis omitted)). And that

decision limited the breadth of the Fourth Amendment’s safeguards. See id. at 643-48 (Stevens, J., dissenting) (describing new opportunities for police misconduct made possible by the holding).

This narrowing of the Fourth Amendment’s scope

based on the common law had an important flipside,

however: where physical contact was involved, “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 (majority opinion). In that situation, “a seizure occurs even

though the subject does not yield.” Id. at 626.

“Thus, in deciding the question presented today,”

this Court will “write upon a slate that is far from

clean.” Minnesota v. Carter, 525 U.S. 83, 96 (1998).

Whatever else might be said about the relevance of the

common law to the Fourth Amendment, this much

should be clear: the Court cannot credibly apply one

aspect of a common law rule to limit the meaning of

“seizure” but then abandon another aspect of that

same rule which would expand the meaning of “seizure.” Torres simply asks this Court to apply the same

analytical method it employed in Hodari D. There is

no principled basis for refusing.

Applying the common law definition of “arrest”

here is also supported by the constitutional text. The

Fourth Amendment regulates “seizures” of “persons,”

and such language was used interchangeably with the

term “arrest” at the Founding. See 1 Samuel Johnson,

A Dictionary of the English Language (6th ed. 1785)

(defining the noun “arrest” as including “any . . . seizure of the person”); id. (defining the verb “arrest” as

including “[t]o seize any thing by law,” “[t]o seize by a

mandate from a court or officer of justice,” and “to

seize; to lay hands on; to detain by power”); 1 Noah

Webster, An American Dictionary of the English Language (1828) (defining the noun “arrest” as including

“[a]ny seizure, or taking by power”); id. (defining the

verb “arrest” as including “[t]o take, seize or apprehend by virtue of a warrant from authority”) (spelling

modernized in all). As Webster explained in defining

the verb “seize”: “We say, to arrest a person, to seize

goods.” 2 Webster, supra. Thus, it would have been

natural for the Fourth Amendment’s drafters and ratifiers to understand that “seizures” of “persons” encompassed the legal concept of an arrest.

Moreover, the legal rules establishing when an arrest was complete were not a matter of “arcane

knowledge.” Hodari D., 499 U.S. at 626 n.2. To the

contrary, those rules persisted in a stable form over

long periods of time. See infra Part II. And because

law enforcement responsibility in the eighteenth century largely rested with civilians, rather than professional police officers, see infra at 18-19, the basic ins

and outs of what constituted an arrest would not have

been a mystery. Even Webster’s general-purpose dictionary noted that an arrest could be made simply by

“touching the body.” 1 Webster, supra (defining the

noun “arrest”); see United States v. Se. Underwriters

Ass’n, 322 U.S. 533, 539 (1944) (“Ordinarily courts do

not construe words used in the Constitution so as to

give them a meaning more narrow than one which

they had in the common parlance of the times in which

the Constitution was written.”).

In short, when the Fourth Amendment was

adopted, as now, an arrest was “the quintessential ‘seizure of the person.’” Hodari D., 499 U.S. at 624. And

the common law rules that defined what constituted

an arrest were crystal clear and widely known.

Application of the common law rule here also promotes the aims of the Fourth Amendment. “The basic

purpose of this Amendment,” this Court has recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental

officials.” Carpenter, 138 S. Ct. at 2213 (quotation

marks omitted). But unless this Court applies the

common law rule of arrest here, law enforcement officers who lack a valid justification will be able to shoot

or otherwise physically harm individuals with no constitutional accountability—so long as those individuals successfully escape the officers’ violence, as Torres

did.

That result would facilitate the “arbitrary and oppressive interference by enforcement officials with the

privacy and personal security of individuals” that the

Amendment is designed to prevent. United States v.

Martinez-Fuerte, 428 U.S. 543, 554 (1976); see also

infra Part III (discussing how application of the common law’s expansive definition of “arrest” will vindicate the Framers’ understanding that civil damages

actions would serve as a deterrent against unreasonable government intrusions on persons and property).

So while there are times when applying a common law

rule will conflict with the goals of the Fourth Amendment, e.g., Garner, 471 U.S. at 13, this is not one of

them—quite the opposite.

Importantly, applying the common law rule of “arrests” to the contemporary policing context does not

distort the practical implications of that rule in the

way this Court discussed in Garner. On the contrary,

the greater pervasiveness of police forces today, relative to the eighteenth century, and the increased capacity of sophisticated firearms to deliver life-threatening injuries from a distance make it more important

to establish that any application of force in an attempt

to capture a suspect constitutes a seizure.

Finally, refusing to apply the common law rule here

would also create a strange disparity between seizures

of persons and seizures of property. “[A] seizure of

property occurs . . . when there is some meaningful interference with an individual’s possessory interests in

that property.” United States v. Jones, 565 U.S. 400,

408 n.5 (2012) (emphasis added) (citation and quotation marks omitted); United States v. Jacobsen, 466

U.S. 109, 113 (1984) (same). A complete and permanent deprivation of one’s possessory interests is not required. Thus, “briefly detain[ing] luggage for limited

investigatory purposes” will suffice, United States v.

Place, 462 U.S. 696, 705 (1983), even though the interference is only temporary, and destroying a small

quantity of a person’s property will also suffice,

Jacobsen, 466 U.S. at 124, even though most of the

property remains unharmed.

Here, where officers shot bullets into Torres’s body,

leaving her partly paralyzed and requiring hospitalization, see Pet’r Br. 2, there has clearly been some

meaningful interference with her possessory interest

in her own body. See Horton v. California, 496 U.S.

128, 133 (1990) (“a seizure deprives the individual of

dominion over his or her person or property”). To hold

that no seizure occurred simply because the shooting

did not completely debilitate her would be tantamount

to giving greater Fourth Amendment protection to

one’s “effects” than to one’s “person.” That cannot be

right, especially given “the unique, significantly

heightened protection afforded against searches of

one’s person.” Houghton, 526 U.S. at 303.

For all these reasons, applying the common law’s

expansive definition of “arrest” to seizures of the person under the Fourth Amendment is not only appropriate but vital to vindicate the Amendment’s text and

purpose.

II. In Founding-Era Common Law, An Arrest

Included Any Use of Physical Force to

Subdue or Detain, Whether or Not the

Subject Was Ultimately Captured.

By the time the Fourth Amendment was drafted

and ratified, it was well established in the common law

that an arrest was complete as soon as a person applied physical force to another person with the intent

to detain them, even if this application of physical

force did not immediately secure control over the other

person.

For example, in Genner v. Sparkes, 1 Salk. 79

(1704), a bailiff found a person he was attempting to

arrest in that person’s yard. The bailiff declared that

he was carrying out an arrest, but the subject held him

off by brandishing a fork and retreated into his home.

The court ruled that no arrest had occurred because

the bailiff never touched the individual. The court explained, however, that if “the bailiff had touched him,

that had been an arrest,” which would have then entitled the bailiff to pursue the individual into his home.

Id.; see 1 Matthew Hale, The History of the Pleas of the

Crown 459 (1736) (explaining that law enforcement officers could break open doors to enter a home and pursue an arrestee “[i]f the sheriff or bailiff have once laid

hands upon the prisoner”).

Over a century later, the same rule remained in

place. Thus, in Nicholl v. Darley, 2 Y. & J. 399 (1828),

a sheriff similarly went to the house of a suspect to arrest him. The suspect rushed out of the house past the

sheriff, and while the sheriff initially caught the suspect around the waist, the suspect broke free and successfully fled. The court concluded that the brief hold

around the suspect’s waist was an arrest. See Richard

Clarke Sewell, A Treatise on the Law of Sherriff, with

Practical Forms and Precedents 321 (1845); 4 W.N.

Welsby & Edward Beavan, Chitty’s Collection of Statutes 1225–1864 with Notes Thereon 208 n.(a) (3d ed.

1865).

Genner, Nicholl, and similar cases were cited for

the proposition that for an arrest, “there must be an

actual seizure or touch with intention to arrest, and

bare words are not sufficient.” Id. (emphasis added).

As long as someone had the intent to arrest, “laying

hold of” the subject effectuated the arrest, even if the

subject was not captured. 1 Edward Hyde East,

A Treatise of the Pleas of the Crown § 87, at 324 (1803);

see Williams v. Jones, 95 Eng. Rep. 193 (K.B. 1736) (an

arrest is complete where a person “gently laid his

hands in order to arrest” another person); id. (“to be

sure . . . there was no arrest, [where] the party was

neither touched nor confined” (emphasis added)),

reprinted in Charles M. Hepburn, Cases on the Law of

Torts 241-42 (1915).

Given that most states “adopted in some measure

the common law of England” after Independence, Anthony J. Bellia Jr., Article III and the Cause of Action,

89 Iowa L. Rev. 777, 784 (2004), it is not surprising

that the same rule was well established in America.

See United States v. Benner, 24 F. Cas. 1084, 1086-87

(C.C.E.D. Pa. 1830) (“An arrest is the taking, seizing

or detaining the person of another, touching or putting

hands upon him in the execution of process, or any act

indicating an intention to arrest.”); see also Pet’r Br.

18-24 (citing additional English and American cases

and commentary).

Indeed, this rule has been remarkably persistent

over the centuries. See Black’s Law Dictionary 88 (2d

ed. 1910) (defining “arrest” as including “the act of laying hands upon a person for the purpose of taking his

body into custody of the law”); Rollin M. Perkins, The

Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (“There

can be no arrest without either touching or submission.” (emphasis added)); id. (“[T]ouching for the manifested purpose of arrest by one having lawful authority completes the apprehension, ‘although he does not

succeed in stopping or holding him even for an instant.’” (quoting State ex rel. Sadler v. Dist. Court of

Eighth Judicial Dist., 225 P. 1000, 1002 (Mont.

1924))).

In response to this Court’s embrace of the common

law rule in Hodari D., Respondents have argued that

“there is no such thing as an ‘attempted seizure’” or a

“‘continuing seizure’ under the Fourth Amendment.”

BIO 13. But the common law principles governing arrests make clear why these objections miss the mark.

As explained above, the application of physical

force to effect a capture was not viewed as an “attempted” arrest—it was an arrest. And the fact that

the common law viewed “arrests” in this broad fashion

does not mean it endorsed the concept of a “continuing

arrest.” Just the opposite. The common law was clear

that an arrest effected by physical force was ended by

the suspect’s escape, and significant legal consequences ensued.

The very notion of arrest as the mere application of

physical force was a result of the common law’s “preoccup[ation] with the danger of escape.” Joseph D.

Grano, Rethinking the Fourth Amendment Warrant

Requirement, 19 Am. Crim. L. Rev. 603, 639 (1982). In

the Founding era, law enforcement was handled

largely by private citizens: it was “a business of amateurs.” Lawrence M. Friedman, Crime and Punishment in American History 27 (1993). While most localities had sheriffs to perform the executive functions of

law enforcement, “ordinary citizens who were employed in other trades . . . took turns serving as constables during the day or watchmen during the night.”

Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 830 (1994).

Thus, private citizens with no particular policing

expertise “carried the main burden of law enforcement,” id. (quoting David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800–1887, at 7 (1979)),

and “escape” was an offense committed by these amateur law enforcement officers when they let a suspect

get away after arresting him. See 1 Hale, supra, at

590-600; Perkins, supra, at 204 (“The early authorities

used ‘escape’ primarily to represent the crime of one

who voluntarily or negligently permitted his prisoner

to depart otherwise than by due course of law.”).

Therefore, when a law enforcement officer allowed

someone he had arrested to go free before that person

was brought before a court, he did so “at his peril, if in

truth there were a felony committed, and the party be

guilty.” 1 Hale, supra, at 592.

Given the amateur nature of Founding-era policing, the law was concerned with providing incentives

for law enforcement officers to successfully detain suspects, and it attached penalties to “escape” in order to

deter arresters from failing in their duties. It also

sought to deter the suspects themselves from resisting

arrest, by making them liable for the crime of “escape.”

By defining an “arrest” as occurring the moment an officer laid hands on an arrestee with intent to detain

him, the common law ensured that people could be

punished criminally for escaping even early on in an

encounter with an ill-equipped citizen police officer.

Moreover, by defining an arrest as occurring at an

early stage of the encounter between amateur officers

and an arrestee, courts could ensure that those private

citizens would be held accountable for simply abandoning attempts at effective law enforcement once

they had initiated contact. As commentators explained, an “officer . . . should as soon as he conveniently can . . . actually arrest the party, not only in order to secure him, but also to subject him and all other

persons to the consequences of escape, or rescue.”

1 Welsby & Beavan, supra, at 32 n.(e), (f). If a law enforcement officer willfully or negligently failed to detain a suspect, “he w[ould] be punishable for his disobedience or neglect.” 1 Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure § 206, at 123

(1872) (internal citations and quotation marks omitted).

Thus, if the subject of an arrest was not apprehended or subsequently broke away, that was an

“escape,” but it did not change the fact that an “arrest”

had occurred. See, e.g., 1 East, supra, § 67, at 298 (describing what measures may appropriately be taken to

recapture a “felon [who] after arrest break[s] away”);

1 Johnson, A Dictionary of the English Language, supra (explaining that “escape,” in law, includes “[f]or example, if the sheriff . . . takes a person and endeavors

to carry him to jail, and he in the way, either by violence or by flight, breaks from him, this is called an

escape” (spelling modernized)).

This Court was right on the mark, therefore, when

it observed in Hodari D. that applying the common

law’s definition of “arrest” does not require embracing

the concept of a continuing arrest or seizure: “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.” 499

U.S. at 625. Not only would that “hardly be realistic”

in a practical sense, id., but it would also be at odds

with the common law rule itself. Respondents’ objection is therefore meritless. This Court should stay true

to its analysis in Hodari D. by applying the common

law’s expansive definition of “arrest” to seizures of the

person under the Fourth Amendment.

When that rule is applied here, the result is obvious. Respondents acknowledge that they shot Torres

in an attempt to stop her flight, claiming to have believed that she attempted to run them over. BIO 2. No

one disputes that the bullets hit Torres as intended.

The officers therefore applied physical force in an attempt to detain her. Torres’s subsequent flight is analogous to “escape” at common law: although she avoided

detention, she was nevertheless “arrested” the moment the physical force was used against her. She was

therefore “seized” under the Fourth Amendment.

In sum, English and American common law—before, during, and after the Founding era—consistently

regarded an arrest as having occurred when physical

force was used to capture a person, even if that force

did not result in the person’s apprehension. The

Fourth Amendment, at a minimum, should “preserve[]

for our citizens the traditional protections against unlawful arrest afforded by the common law.” City of

Riverside v. McLaughlin, 500 U.S. 44, 60 (1991)

(Scalia, J., dissenting). When the Framers added a

Bill of Rights the Constitution, they “secur[ed] to the

American people, among other things, those safeguards which had grown up in England to protect the

people from unreasonable searches and seizures.”

Weeks v. United States, 232 U.S. 383, 390 (1914).

III. Applying the Common Law Rule Will Also

Vindicate the Framers’ Understanding that

Civil Damages Actions Would Be a Key

Deterrent Against Unreasonable Intrusions

on Persons and Property.

As explained above, “seizures” under the Fourth

Amendment should include all deliberate applications

of physical force by government officers that are intended to secure a person’s capture. In addition to its

other merits, this rule helps vindicate the Framers’

understanding that freedom from unreasonable

searches and seizures would be preserved through civil

damages actions against the offending officers, and

that the ability to take such cases to a jury was an essential safeguard against government oppression.

The Framers “crafted the Fourth Amendment as a

response to the reviled general warrants and writs of

assistance of the colonial era.” Carpenter, 138 S. Ct. at

2213 (quoting Riley, 573 U.S. at 403 (quotation marks

omitted)). A string of prominent English decisions in

the 1760s, involving overbroad warrants issued to

squelch criticism of the government, put center stage

the jury’s role in combatting abuses of power, with juries awarding sizeable tort damages to several individuals whose homes and papers were seized by the

King’s officers. See, e.g., Wilkes v. Wood, 19 How. St.

Tr. 1153 (C.P. 1763); Entick v. Carrington, 19 How. St.

Tr. 1029 (C.P. 1765).

Coming on the heels of bitter disputes over writs of

assistance in the colonies, these cases were widely covered in American newspapers, where the reaction “was

intense, prolonged, and overwhelmingly sympathetic.”

William J. Cuddihy, The Fourth Amendment: Origins

and Original Meaning 602–1791, at 538 (2009). Indeed, “every American statesman, during our revolutionary period and formative period as a nation, was

undoubtedly familiar” with these “landmarks of English liberty,” which had a powerful effect on the framing of the Fourth Amendment. Boyd, 116 U.S. at 626.

These Americans “enthusiastically embraced the

role of the civil jury in government search and seizure

cases.” Akhil Reed Amar, Fourth Amendment First

Principles, 107 Harv. L. Rev. 757, 776 (1994). As one

commentator put it in 1787, if a federal constable

searching for stolen goods “pulled down the clothes of

a bed in which there was a woman and searched under

her shift . . . a trial by jury would be our safest resource, heavy damage would at once punish the offender and deter others from committing the same.”

Id. (quoting Essay of A Democratic Federalist, reprinted in 3 The Complete Anti-Federalist 58, 61 (Herbert J. Storing ed., 1981)); see Essays by A Farmer (I),

Baltimore Md. Gazette, Feb. 15, 1788, reprinted in

5 The Complete Anti-Federalist, supra, at 14 (“[N]o

remedy has yet been found equal to the task of

dete[r]ring and curbing the insolence of office, but a

jury—[i]t has become an invariable maxim of English

juries, to give ruinous damages whenever an officer

had deviated from the rigid letter of the law, or been

guilty of any unnecessary act of insolence or oppression . . . .”).

Thus, the Founding generation expected courts to

be an “impenetrable bulwark against every assumption of power in the legislative or executive” and to “resist every encroachment upon rights” protected by the

Bill of Rights. 1 Annals of Cong. 457 (1789) (Madison).

Consistent with that expectation, Americans in the

early Republic went to court to vindicate their rights

against unreasonable seizures through common law

tort actions, including suits for trespass and malicious

prosecution. See, e.g., Wise v. Withers, 7 U.S. (3

Cranch) 331, 337 (1806); Burlingham v. Wylee, 2 Root

152 (Conn. Super. Ct. 1794); Smith v. McGuire, 15 Ky.

(5 Litt.) 302 (1824); Barrett v. Copeland, 18 Vt. 67

(1844).

“The predominant method of suing officers in the

early nineteenth century was an allegation of common

law harm, particularly a physical trespass,” to which

the legality and constitutionality of the officers’ conduct was pleaded as a defense. Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case

W. Res. L. Rev. 396, 399 (1987); see Utah v. Strieff, 136

S. Ct. 2056, 2060-61 (2016). After the Civil War, in the

wake of the Southern states’ rampant refusal to protect individual rights, the nation adopted the Fourteenth Amendment to apply the Fourth Amendment

and the rest of the Bill of Rights to the states. McDonald v. City of Chicago, 561 U.S. 742, 762 (2010). And

when state recalcitrance continued, Congress enacted

a landmark civil rights statute providing a federal forum in which injured individuals could sue state officers directly for violations of the Fourth Amendment

and other constitutional provisions that took place

under color of state law. See An Act to Enforce the

Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes,

ch. 22, § 1, 17 Stat. 13, 13 (1871), codified at 42 U.S.C.

§ 1983.

If this Court refuses to recognize that Fourth

Amendment “seizures” include common law arrests, it

will create a loophole in the system of accountability

and deterrence established by the political branches

and the American public. State and federal officers

who shoot suspects, tase them, ram them with vehicles, or physically harm them in other ways without

sufficient legal justification will be exempt from liability for constitutional violations whenever the subject

of their efforts manages to elude them, even temporarily. Victims of these unreasonable measures will be

barred from presenting their cases to juries based on

the happenstance that the officers failed to immediately subdue them. That arbitrary result cannot be

squared with the text, history, or purpose of the

Fourth Amendment.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

DAVID H. GANS

BRIAN R. FRAZELLE

CLARE E. RIVA**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

February 6, 2020

* Counsel of Record

** Not admitted in D.C.;

supervised by principals at

the firm

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.