Amicus Curiae Brief — Casondra Pollreis, on Behalf of Herself and Her Minor Children, W. Y. and S. Y., Petitioner v. Lamont Marzolf

No. 21-901

IN THE

Supreme Court of the United States

CASONDRA POLLREIS, ON BEHALF OF HERSELF AND

HER MINOR CHILDREN, W.Y. AND S.Y.,

v.

Petitioner,

LAMONT MARZOLF,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE DKT LIBERTY PROJECT

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Avenue, N.W.

Suite 900

Washington, D.C. 20001

(202) 639-6023

jamunson@jenner.com

THOMAS H. DUPREE JR.

Counsel of Record

MATT GREGORY

TODD W. SHAW

VICTORIA C. GRANDA

ADDISON BENNETT

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8547

tdupree@gibsondunn.com

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF

Counsel for the DKT Liberty Project timely

notified the parties of its intention to submit an

amicus brief in this case, as required by Supreme

Court Rule 37.2(a). Counsel for petitioner consented

to the filing of the brief, but counsel for respondent

withheld consent. Accordingly, the Liberty Project

respectfully moves this Court for leave to file the

attached amicus brief in support of petitioner

pursuant to Supreme Court Rule 37.2(b).

The Liberty Project is dedicated to the protection

of constitutional rights and individual liberties. It

strongly believes that the Fourth Amendment’s

prohibition against unreasonable searches and

seizures is indispensable to American freedom, and

that the rigorous enforcement of this prohibition is

necessary to preserve our system of limited

government and individual freedom.

This case presents the Court with an opportunity

to correct course on lower courts’ erosion of the

protections of the Fourth Amendment and

unwarranted expansion of police power. This Court

has repeatedly emphasized that the terms of the

Fourth Amendment should be understood in light of

the “traditional protections against unreasonable

searches and seizures afforded by the common law at

the time of the framing.” Wilson v. Arkansas, 514 U.S.

927, 931 (1995); see also, e.g., Torres v. Madrid, 141 S.

Ct. 989, 995–96 (2021); California v. Hodari D., 499

U.S. 621, 624 (1991). The Liberty Project’s brief will

aid the Court in considering the petition for a writ of

certiorari by explaining why respondent’s actions

would constitute arrests under the common law and

2

therefore require probable cause under the Fourth

Amendment.

For these reasons, the Court should grant the

motion to file the attached brief of the DKT Liberty

Project as amicus curiae.

Respectfully submitted,

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Avenue, N.W.

Suite 900

Washington, D.C. 20001

(202) 639-6023

jamunson@jenner.com

THOMAS H. DUPREE JR.

Counsel of Record

MATT GREGORY

TODD W. SHAW

VICTORIA C. GRANDA

ADDISON BENNETT

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8547

tdupree@gibsondunn.com

Counsel for Amicus Curiae

January 11, 2022

QUESTION PRESENTED

Does the Fourth Amendment permit the search

and seizure without probable cause of two compliant

children, handcuffed and at gunpoint, even after the

children have identified themselves to the seizing

officer and been independently identified by their

parents?

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 3

I.

The Common Law Of Arrest Should

Inform The Meaning Of “Seizure” Under

The Fourth Amendment. ...................................... 3

A. The Court’s Fourth Amendment

Precedents Apply The Common Law

Of Arrest. ........................................................ 4

B. The Text And Purpose Of The Fourth

Amendment Point Toward The

Common Law Of Arrest. ................................ 6

II. Under The Common Law, Officer Marzolf

Arrested The Children When He Forced

Them To Lay On The Ground, In

Handcuffs, At Gunpoint...................................... 10

A. Applying Physical Force To Detain An

Individual Constituted An Arrest At

Common Law. ............................................... 11

B. Even Without Physical Force,

Obtaining Submission Through A

Show Of Authority Independently

Constituted An Arrest At Common

Law................................................................ 15

CONCLUSION .......................................................... 17

iii

TABLE OF AUTHORITIES

Cases

Anonymous,

1 Vent. 306, 86 Eng. Rep. 197 (K.B. 1678) .......... 12

Anonymous,

87 Eng. Rep. 1060 (Q.B. 1702)............................. 13

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) ................................................ 7

Barrett v. Copeland,

18 Vt. 67 (1844) ...................................................... 9

Burlingham v. Wylee,

2 Root 152 (Conn. Super. Ct. 1794) ....................... 9

Butler v. Washburn,

25 N.H. 251 (1852) ........................................... 2, 13

California v. Hodari D.,

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

Camara v. Mun. Ct. of City & Cnty. of

San Francisco,

387 U.S. 523 (1967) .............................................. 14

Carpenter v. United States,

138 S. Ct. 2206 (2018) ........................................ 4, 7

Countess of Rutland’s Case,

6 Co. Rep. 52b, 77 Eng. Rep. 332

(Star Chamber 1605) ....................................... 2, 12

iv

TABLE OF AUTHORITIES (continued)

Page(s)

Genner v. Sparks,

6 Mod. 173, 87 Eng. Rep. 928 (Q.B. 1704) .......... 13

Hart v. Flynn’s Ex’r,

8 Dana 190 (Ky. Ct. App. 1839) ........................... 13

Hodges v. Marks,

Cro. Jac. 485, 79 Eng. Rep. 414

(K.B. 1615)...................................................... 11, 12

Hollister v. Goodale,

8 Conn. 332 (1831) ............................................... 16

Horner v. Battyn,

B.N.P. 62 (1738) (reprinted in William

Lloyd, Cases on Civil Procedure 798

(1916)) ......................................................... 2, 15, 16

Kyllo v. United States,

533 U.S. 27 (2000) ............................................ 1, 15

Lange v. California,

141 S. Ct. 2011 (2021) ............................................ 1

Michigan v. Summers,

452 U.S. 692 (1981) ................................................ 4

Minnesota v. Dickerson,

508 U.S. 366 (1993) ...................................... 4, 7, 11

Montgomery Cnty. v. Robinson,

85 Ill. 174 (1877) .................................................. 13

v

TABLE OF AUTHORITIES (continued)

Page(s)

Nicholl v. Darley,

2 Y. & J. 399, 148 Eng. Rep. 974 (Exch.

1828) ............................................................... 11, 15

Payton v. New York,

445 U.S. 573 (1980) ................................................ 4

Pike v. Hanson,

9 N.H. 491 (1838) ................................................. 15

Riley v. California,

573 U.S. 373 (2014) ............................................ 1, 7

Sherriff of Hampshire v. Godfrey,

87 Eng. Rep. 1247 (K.B. 1738)............................. 16

Smith v. McGuire,

15 Ky. (5 Litt.) 302 (1824) ...................................... 9

Terry v. Ohio,

392 U.S. 1 (1968) .......................................... 3, 5, 10

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................................ 12

Torres v. Madrid,

141 S. Ct. 989 (2021) .................................... passim

Union Pac. Ry. Co. v. Botsford,

141 U.S. 250 (1891) ................................................ 1

United States v. Benner,

24 F. Cas. 1084 (C.C.E.D. Pa. 1830).................... 13

vi

TABLE OF AUTHORITIES (continued)

Page(s)

United States v. Johnson,

921 F.3d 991 (11th Cir. 2019) .............................. 12

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) .............................................. 17

Virginia v. Moore,

553 U.S. 164 (2008) ............................................ 6, 7

Whitehead v. Keyes,

85 Mass. 495 (1862) ............................................. 13

Wilson v. Arkansas,

514 U.S. 927 (1995) ............................................ 2, 5

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) ................................. 9

Other Authorities

1 John Ash, The New and Complete

Dictionary of the English Language

(2d ed. 1795) ........................................................... 6

1 Samuel Johnson, A Dictionary of the

English Language (6th ed. 1785) .......................... 6

1 Samuel Johnson, A Dictionary of the

English Language 108 (4th ed. 1773).................... 5

1–2 Noah Webster, An American Dictionary

of the English Language (1828) ...................... 6, 11

vii

TABLE OF AUTHORITIES (continued)

Page(s)

1 Richard Burn, The Justice of the Peace

(28th ed. 1837)...................................................... 16

1 William Dickinson, A Practical Exposition

of the Law Relative to the Office and

Duties of a Justice of the Peace

(London: Reed & Hunter 1813) ........................... 16

2 Matthew Hale, A History of Pleas of the

Crown (W.A. Stokes & E. Ingersoll eds.,

1st Am. ed. 1847) (1824) .................................. 8, 12

2 William Hawkins, A Treatise of the Pleas

of the Crown (1824) ................................................ 8

3 Joseph Story, Commentaries on the

Constitution of the United States (1833) .............. 7

4 William Blackstone, Commentaries on the

Laws of England (1769) ............................. 9, 11, 12

Ann Woolhandler, Patterns of Official

Immunity and Accountability,

37 Case W. Res. L. Rev. 396 (1987) ....................... 9

Lawrence Rosenthal, Pragmatism,

Originalism, Race, and the Case Against

Terry v. Ohio, 43 Texas Tech L. Rev. 299

(2010) .................................................................. 8, 9

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547

(1999) ...................................................................... 7

INTEREST OF AMICUS CURIAE1

The DKT Liberty Project, a not-for-profit

organization, was founded in 1997 to promote

individual liberty against encroachment by all levels

of government, and especially encroachment on the

civil liberties of private individuals. The Liberty

Project has participated as amicus in this Court

numerous times, including in other cases involving

intrusions on Fourth Amendment rights. See, e.g.,

Lange v. California, 141 S. Ct. 2011 (2021); Riley v.

California, 573 U.S. 373 (2014); Kyllo v. United States,

533 U.S. 27 (2000). Because of its long track record of

protecting citizens from government overreach, the

Liberty Project is well situated to explain why and

how the Court should apply the common law to

determine that Fourth Amendment “seizures”

occurred here and reject the Eighth Circuit’s

unwarranted expansion of police power.

SUMMARY OF ARGUMENT

This case implicates the fundamental right to be

free from unreasonable seizures. “No right is held

more sacred, or is more carefully guarded by the

common law, than the right of every individual to the

possession and control of his own person, free from all

restraint or interference of others, unless by clear and

unquestionable authority of law.” Union Pac. Ry. Co.

v. Botsford, 141 U.S. 250, 251 (1891).

1 Pursuant to Rule 37.6, amicus curiae affirms that no counsel

for a party authored this brief in whole or in part, and no person

other than amicus curiae or its counsel made a monetary

contribution to this brief’s preparation or submission.

2

This Court has emphasized that the terms of the

Fourth Amendment should be understood in light of

the “traditional protections against unreasonable

searches and seizures afforded by the common law at

the time of the framing.” Wilson v. Arkansas, 514 U.S.

927, 931 (1995); see also, e.g., Torres v. Madrid, 141 S.

Ct. 989, 995–96 (2021); California v. Hodari D., 499

U.S. 621, 624 (1991). The Eighth Circuit’s decision

failed to engage in that inquiry and is in direct conflict

with centuries of common law. No court applying the

common law in 1791 or 1868 would comprehend the

Eighth Circuit’s holding in this case that a police

officer who detained and handcuffed two compliant

children at gunpoint had not “arrested” them.

The “vast legal library” of the common law “must

be used thoughtfully” in a manner that “respect[s]

legal history.” Torres, 141 S. Ct. at 1014 (Gorsuch, J.,

dissenting). Here, a thorough review of the common

law confirms that arrests of the children occurred in

this case under both forms of “arrest” that English and

American courts recognized decades before and after

the ratifications of the Fourth Amendment in 1791

and the Fourteenth Amendment in 1868. First,

arrests occurred when the police officer handcuffed

the two children because he intended to restrain them

and succeeded in doing so. See Countess of Rutland’s

Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber

1605); accord Butler v. Washburn, 25 N.H. 251, 258

(1852) (“any touching, however slight, is enough”).

Second, arrests occurred when the officer issued

orders to, and trained his gun at, the two children

because they submitted to his “show of authority.” See

Horner v. Battyn, B.N.P. 62 (1738) (reprinted in

William Lloyd, Cases on Civil Procedure 798 (1916)).

3

The decision below is wrong and would be

unrecognizable to any common law court in 1791 or

1868. The Court should grant the petition for a writ

of certiorari and reverse the Eighth Circuit’s decision.

ARGUMENT

The Eighth Circuit’s holding is in direct conflict

with the common law of arrest and the Founding- and

Reconstruction-era understandings of a “seizure.”

This Court’s precedents establish that, in keeping

with the text and purpose of the Fourth Amendment,

the common law of arrest informs whether a person

has been “seized.” At common law, an arrest occurred

where an officer used “either physical force” or

obtained “submission to the assertion of authority” to

detain an individual. Torres, 141 S. Ct. at 995

(quoting Hodari D., 499 U.S. at 626) (quotation marks

and emphasis omitted). The police officer here

accomplished arrests through both means.

I.

The Common Law Of Arrest Should Inform

The Meaning Of “Seizure” Under The Fourth

Amendment.

The Eighth Circuit followed its version of an

amorphous balancing test to determine whether the

officer’s stop and search of the two children

constituted arrests. See Pet. 16–20 (describing circuit

split over the application and expansion of Terry v.

Ohio, 392 U.S. 1 (1968)). In this case, the balancing

inquiry led to the bizarre and mistaken decision that

the officer did not arrest two compliant children when

he handcuffed them and held them on the ground at

gunpoint.

The Eighth Circuit’s decision countenances police

misconduct that “the fiercely proud men who adopted

4

our Fourth Amendment would [not] have allowed

themselves”—or their children—“to be subjected” to.

Minnesota v. Dickerson, 508 U.S. 366, 381 (1993)

(Scalia, J., concurring). By contrast, grounding the

determination of what constitutes a “seizure” in the

common law of arrest is faithful to the text and

purpose of the Fourth Amendment, as this Court has

recognized time and again. The Court should grant

the petition to reaffirm the common law’s relevance to

the Fourth Amendment and prevent the further

unwarranted expansion of the “narrow” and “limited”

exception in Terry. Michigan v. Summers, 452 U.S.

692, 698 (1981); Pet. 13.

A. The

Court’s

Fourth

Amendment

Precedents Apply The Common Law Of

Arrest.

The Fourth Amendment provides 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 this Court has

“repeatedly recognized, ‘the arrest of a person is

quintessentially a seizure’” for purposes of the Fourth

Amendment. Torres, 141 S. Ct. at 996 (quoting Payton

v. New York, 445 U.S. 573, 585 (1980)); see also Hodari

D., 499 U.S. at 624; Dickerson, 508 U.S. at 380–81

(Scalia, J., concurring). Because “[t]he ‘seizure’ of a

‘person’ plainly refers to an arrest,” this Court

“properly look[s] to the common law of arrest for

‘historical understandings of what was deemed an

unreasonable search and seizure when the Fourth

Amendment was adopted.’” Torres, 141 S. Ct. at 996

(quoting Carpenter v. United States, 138 S. Ct. 2206,

2214 (2018)) (quotation marks from Carpenter

5

omitted).2

In Hodari D., for example, the Court held that a

person who failed to comply with a police officer’s

show of authority was not “seiz[ed]” within the

meaning of the Fourth Amendment. Central to that

decision was the common law of arrest—under the

common law, an arrest required “either physical force

. . . or, where that is absent, submission to the

assertion of authority.” 499 U.S. at 626.

In Torres, this Court reaffirmed that approach by

noting the key “linkage” between a “seizure” of a

“person” and an “arrest” at the Founding. 141 S. Ct.

at 996 (citing 1 Samuel Johnson, A Dictionary of the

English Language 108 (4th ed. 1773)). Notably,

although the Court split 5–3, both the majority and

dissent agreed that the common law of arrest was

central to the Fourth Amendment inquiry. See id. at

1003 (majority op.); id. at 1008–14 (Gorsuch, J.,

dissenting).

The Court also regularly examines the

“traditional

protections

against

unreasonable

searches and seizures afforded by the common law at

the time of the framing” in evaluating the scope of the

Fourth Amendment as a whole. Wilson, 514 U.S. at

2 In Terry, the Court arguably departed from the common-law

understanding of an “arrest” in the context of a police officer’s

pat-down of suspects the officer reasonably suspected were

armed and dangerous. 392 U.S. at 7–8. As Petitioner explains,

Pet. 14–17, this Court has made clear that Terry is a narrow

exception to the ordinary rule that any common-law arrest

requires probable cause, and has never extended Terry’s

amorphous test to seizures as violent and intrusive as occurred

here.

6

931; cf. Virginia v. Moore, 553 U.S. 164, 168 (2008)

(“In determining whether a search or seizure is

unreasonable, we begin with history. We look to the

statutes and common law of the founding era to

determine the norms that the Fourth Amendment

was meant to preserve.”).

B. The Text And Purpose Of The Fourth

Amendment Point Toward The Common

Law Of Arrest.

1. During the Founding era, an “arrest” was a

“seizure” of a person. Just six years before the Fourth

Amendment was ratified, Samuel Johnson defined

“arrest” to mean “any . . . seizure of the person.” 1

Samuel Johnson, A Dictionary of the English

Language (6th ed. 1785); see also id. (defining the verb

“arrest” as “[t]o seize; to lay hands on; to detain by

power”); 1 John Ash, The New and Complete

Dictionary of the English Language (2d ed. 1795)

(defining the verb “arrest” as “[t]o seize a man for

debt, to apprehend by virtue of a writ from any court

of justice, to stop, to hinder”).

This understanding of “arrests” and “seizures”

persisted after the Founding. For example, in the

early nineteenth century, Noah Webster defined

“arrest” to mean “[a]ny seizure, or taking by power.”

1 Noah Webster, An American Dictionary of the

English Language (1828); see also id. (defining the

verb “arrest” as “[t]o take, seize or apprehend by

virtue of a warrant from authority”). Webster noted

that in using the word “seize,” “[w]e say, to arrest a

person, to seize goods.” 2 Webster, Dictionary of the

English Language (emphasis added).

Those who ratified the Fourth and Fourteenth

7

Amendments would have therefore understood that

“seizures” included common law “arrests.” “Joseph

Story, among others, saw the Fourth Amendment as

‘little more than the affirmance of a great

constitutional doctrine of the common law[.]’” Moore,

553 U.S. at 169 (quoting 3 Joseph Story,

Commentaries on the Constitution of the United

States § 1895, at 748 (1833)); see also Atwater v. City

of Lago Vista, 532 U.S. 318, 326 (2001) (“an

examination of the common-law understanding of an

officer’s authority to arrest sheds light on the

obviously relevant, if not entirely dispositive,

consideration of what the Framers of the Amendment

might have thought to be reasonable” (alteration and

quotation marks omitted)).3

2. The core purpose of the Fourth Amendment is

to “safeguard the privacy and security of individuals

against arbitrary invasions by governmental

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

marks omitted). By looking to the common law of

arrest, this Court ensures that the Fourth

Amendment’s protections stand firm over time. See

Dickerson, 508 U.S. at 380 (Scalia, J., concurring)

(“The purpose of the [Fourth Amendment] . . . is to

3 To be sure, the Amendment expanded the scope of

protections English law afforded in important ways. See, e.g.,

Riley, 573 U.S. at 403 (discussing “the reviled ‘general warrants’

and ‘writs of assistance’ of the colonial era, which allowed British

officers to rummage through homes in an unrestrained search

for evidence of criminal activity”); see also Thomas Y. Davies,

Recovering the Original Fourth Amendment, 98 Mich. L. Rev.

547, 723 (1999) (explaining that the Fourth Amendment was

adopted to address “a specific vulnerability in the protections

afforded by common-law arrest and search authority”).

8

preserve th[e] degree of respect for the privacy of

persons and the inviolability of their property that

existed when the provision was adopted—even if a

later, less virtuous age should become accustomed to

considering all sorts of intrusion ‘reasonable.’”).

Lower courts’ growing departure from the common

law, exemplified below by the Eighth Circuit, deviates

from the original understanding that the right to be

free from unreasonable seizures would be vindicated

by private parties in suits for false arrest.

To avoid potentially significant personal liability

at common law, a person charged with making a

warrantless arrest was required to show that it was

based on “suspicion.”

See Lawrence Rosenthal,

Pragmatism, Originalism, Race, and the Case Against

Terry v. Ohio, 43 Texas Tech L. Rev. 299, 333 (2010).

Contemporary treatises spoke of “suspicion” as a

requirement similar to today’s probable cause

standard:

[W]hoever would justify the arrest of an

innocent person by reason of any such

suspicion, must not only shew that he

suspected the party himself, but must also set

forth the cause which induced him to have

such a suspicion, that it may appear to the

court to have been a sufficient ground for his

proceeding.

2 William Hawkins, A Treatise of the Pleas of the

Crown 120 (1824); see also 2 Matthew Hale, A History

of Pleas of the Crown 88 (W.A. Stokes & E. Ingersoll

eds., 1st Am. ed. 1847) (1824) (contemporary editor’s

notes) (“[S]uspicion must not be a mere causeless

suspicion, but must be founded on some probable

9

reason.”).

In general, an arrest for a misdemeanor was

“justifiable only if the offense occurred in the presence

of the person making the arrest and the arrestee was

in fact guilty, meaning that the acquittal of the

arrestee exposed the individual making the arrest to

liability for trespass.” Rosenthal, 43 Texas Tech L.

Rev. at 333 (citation omitted). Even a felony arrest

was justified only “if a felony had in fact been

committed and there was ‘probable cause of suspicion’

to believe that the arrestee had committed the

offense.” Id. (citation omitted); see also 4 William

Blackstone, Commentaries on the Laws of England

289 (1769) (noting that an officer “may, without

warrant, arrest any one for a breach of the peace

. . . [a]nd, in case of felony actually committed, or a

dangerous wounding whereby felony is likely to

ensue, he may upon probable suspicion arrest the

felon”).

Suits for civil damages alleging unlawful seizures

were familiar to Americans at the time of the

Founding and through Reconstruction. 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,” and, like the

English common law suits alleging unlawful arrest,

the legality of the officer’s conduct and the legitimacy

of the arrest provided a defense. Ann Woolhandler,

Patterns of Official Immunity and Accountability, 37

Case W. Res. L. Rev. 396, 399 (1987).

10

In short, the generations that ratified the Fourth

and Fourteenth Amendments would have expected

that civil damages would be available against law

enforcement officers who, as here, make an

unjustified arrest without probable cause. The circuit

courts’ escalating departure from the common law

frustrates those expectations and dilutes the Fourth

Amendment’s protections.

II. Under The Common Law, Officer Marzolf

Arrested The Children When He Forced

Them To Lay On The Ground, In Handcuffs,

At Gunpoint.

Common law jurists would have been perplexed

by the Eighth Circuit’s holding that Officer Marzolf

did not arrest two compliant children when he ordered

them to the ground at gunpoint and handcuffed them.

As this Court has consistently recognized, an arrest

occurred at common law whenever an officer used

“either physical force” or “submission to the assertion

of authority” to detain an individual. Torres, 141 S.

Ct. at 995 (quoting Hodari D., 499 U.S. at 626)

(quotation marks and emphasis omitted). Here,

Officer Marzolf arrested the boys through both

means.4

4 The Court need not decide whether Officer Marzolf’s initial

stop of the two children could be justified under the narrow

exception in Terry, since his subsequent conduct plainly went far

beyond the minimal intrusions the Court allowed in that case.

11

A. Applying Physical Force To Detain An

Individual Constituted An Arrest At

Common Law.

1. At common law, the “quintessential ‘seizure of

the person’ . . . [was] the mere grasping or application

of physical force with lawful authority . . . .” Hodari

D., 499 U.S. at 624 (quoting 2 Webster, Dictionary of

the English Language). “All the authorities, from the

earliest time to the present, establish that a corporal

touch is sufficient to constitute an arrest, even though

the defendant do not submit.” Nicholl v. Darley, 2 Y.

& J. 399, 400, 148 Eng. Rep. 974 (Exch. 1828) (citing

Hodges, Cro. Jac. at 485, 79 Eng. Rep. at 414; see also

Torres, 141 S. Ct. at 996 (relying on Nicholl and

Hodges). At least where, as here, an officer intends to

detain a suspect, physically touches the suspect, and

the application of force is accompanied by the

suspect’s apprehension, there is no serious question

whether the officer arrested the suspect within the

common law meaning. Compare Torres, 141 S. Ct. at

1012 n.4 (Gorsuch, J., dissenting) (“Blackstone

equated a criminal arrest with ‘apprehending or

restraining one’s person . . . .’” (quoting 4 Blackstone,

Commentaries 1008 (alteration adopted))), with id. at

998 (majority op.) (arrest occurs where “force [is] used

to apprehend,” regardless of whether the suspect is

apprehended).

Common law courts have applied this rule for

centuries.5 More than four hundred years ago—and

5 Concurring in Minnesota v. Dickerson, Justice Scalia opined

that “the so-called night-walker statutes” existing at common

law “suggested” that “the ‘stop’ portion of the Terry ‘stop-andfrisk’ holding accords with the common law.” 508 U.S. at 380

12

decades before the Glorious Revolution and its

“attendant English Bill of Rights,” Timbs v. Indiana,

139 S. Ct. 682, 688 (2019)—the Star Chamber

considered whether a noble woman was immune from

arrest to execute a writ for a judgment of debt.

Rutland’s Case, 77 Eng. Rep. 332. The Countess was

indeed immune, meaning the serjeants-at-mace had

committed an unauthorized arrest because they

“shewed her their mace, and touching her body with

it, said to her, ‘we arrest you, madam . . . .” Id. at 336.

The King’s Bench in 1615 likewise found that a

bailiff’s placing his hand on an arrestee and

announcing, “[h]ere I do arrest you by virtue of a

warrant that I have,” was an arrest. Hodges v. Marks,

Cro. Jac. 485, 79 Eng. Rep. 414 (K.B. 1615). And in

1678, the King’s Bench found an arrest when a “bailiff

caught one by the hand (whom he had a warrant to

arrest) as he held it out of a window,” demonstrating

that the touch alone accomplished the seizure.

Anonymous, 1 Vent. 306, 86 Eng. Rep. 197 (K.B.

1678).

(Scalia, J., concurring). The Nightwalker Statutes did permit lay

“[w]atchmen . . . [to] virtue officii arrest all offenders, and

particularly nightwalkers, and commit them to custody till the

morning.” 4 Blackstone, Commentaries 289. But these statutes

merely specified who could lawfully make arrests, and for what

conduct. They provide no evidence that a watchman’s physical

detention of a suspicious person would not be considered an

arrest under the common law. See 2 Hale, A History of the Pleas

of the Crowns 88 (stating that “the constable may arrest

suspicious nightwalkers” (emphasis added)); 4 Blackstone,

Commentaries 289 (permitting a watchman to “commit [the

offender] to custody till the morning”); see also United States v.

Johnson, 921 F.3d 991, 1009–10 (11th Cir. 2019) (en banc)

(Jordan, J., dissenting) (collecting academic authorities).

13

This rule persisted beyond the Glorious

Revolution and reached the English pre-colonial

period unbroken. See, e.g., Anonymous, 87 Eng. Rep.

1060 (Q.B. 1702) (“If a window be open, and a bailiff

put his hand and touch one for whom he has a

warrant, he is thereby his prisoner, and may break

open the door to come at him.”). For example, in

Genner v. Sparks, the Queen’s Bench found no arrest

where a bailiff announced an arrest “but did not lay

his hands” on the suspect, having been warded off by

the suspect wielding a pitchfork as he retreated into

his home. 6 Mod. 173, 87 Eng. Rep. 928, 928–29 (Q.B.

1704). The court observed, however, that an arrest

would have occurred if the bailiff “had but touched the

defendant even with the end of his finger.” Id.; accord

Butler, 25 N.H. at 258 (“any touching, however slight,

is enough”).

The common law rule then crossed the Atlantic,

where American courts applied it at the Founding and

through the adoption of the Fourteenth Amendment

in similar fashion. Hodari D., 499 U.S. at 624 (citing

Whitehead v. Keyes, 85 Mass. 495, 501 (1862)); see also

Hart v. Flynn’s Ex’r, 8 Dana 190, 191 (Ky. Ct. App.

1839) (“Arrest signifies a restraint of the person, a

restriction of the right of locomotion[.]”); Montgomery

Cnty. v. Robinson, 85 Ill. 174, 176 (1877) (Arrest is the

“apprehension or detaining of the person in order to

be forthcoming to answer to an alleged or supposed

crime.”).

2. Under the common law, therefore, courts would

have agreed that Officer Marzolf’s handcuffing the

boys constituted arrests, and thus “seizures,” because

he touched them with the intent to apprehend them.

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

14

(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.”). Of course,

Officer Marzolf did not merely touch the children—he

did much more. That he went beyond touching and

used handcuffs to detain them confirms that arrests

occurred under any reasonable interpretation of the

common law. See Torres, 141 S. Ct. at 1008 (Gorsuch,

J., dissenting) (concluding that “an ‘arrest’ at common

law ordinarily required possession”).

Given the breadth of the rule, which applies to far

less intrusive touching, it is of no consequence that

common law cases generally did not specifically rely

on the application of handcuffs. Courts should not

decline to “carve out [a] greater intrusion on personal

security” than the Framers foresaw “just because

founding-era courts did not confront apprehension” by

modern means. Torres, 141 S. Ct. at 998 (majority

op.). Here, placing the children in handcuffs—as they

lay face down on the ground—imposed an even greater

restraint on their liberty than simply grasping them,

and under any reading of the common law courts in

1791 and 1868 would have recognized that the officer

arrested them. See id. at 996–97; id. at 1008–10

(Gorsuch, J., dissenting) (arguing that an arrest

required a restraint on the suspect’s liberty in

addition to a physical touching).

Moreover, “the focus of the Fourth Amendment is

‘the privacy and security of individuals,’ not the

particular manner of ‘arbitrary invasion by

governmental officials.’” Torres, 141 S. Ct. at 998

(majority op.) (quoting Camara v. Mun. Ct. of City &

Cnty. of San Francisco, 387 U.S. 523, 528 (1967))

15

(alteration adopted). The Court “must take the long

view, from the original meaning of the Fourth

Amendment forward.” Kyllo, 533 U.S. at 40. Under

that view, an arrest undoubtedly occurred here.

B. Even Without Physical Force, Obtaining

Submission Through A Show Of

Authority Independently Constituted An

Arrest At Common Law.

Centuries of common law show that Officer

Marzolf also arrested W.Y. and S.Y. when he pointed

his gun at them and forced them to lay on the ground.

1. By the time of the Founding, common law

courts had established that an arrest occurs where an

officer obtains submission to a show of authority even

where physical touch is absent. The watershed case

came in 1738, in Horner v. Battyn, where “it was

objected that there had not been a legal arrest, as the

bailiff had never touched the defendant.” Nicholl, 148

Eng. Rep. at 974 (summarizing Horner, B.N.P. 62

(reprinted in William Lloyd, Cases on Civil Procedure

798 (1916))). The court nevertheless held that “this is

a good arrest; and if the bailiff who has a process

against one, says to him when he is on horse-back, or

in a coach, ‘you are my prisoner, I have a writ against

you,’ upon which he submits, turns back, and goes

with him, though the bailiff never touched him, yet it

is an arrest, because he submitted to process . . . .” Id.

at 974–75.

Since Horner, Anglo-American courts have

recognized this second form of arrest—where an

officer obtains submission to his show of authority

even without a physical touching. See, e.g., Pike v.

Hanson, 9 N.H. 491, 493 (1838) (citing Horner);

16

Hollister v. Goodale, 8 Conn. 332, 335 (1831) (same);

see also 1 William Dickinson, A Practical Exposition

of the Law Relative to the Office and Duties of a

Justice of the Peace 117 (London: Reed & Hunter

1813) (“If an officer say to the party, ‘I arrest you in

the king’s name;’ the party at his peril ought to obey

him; and if he have no lawful authority, the party

grieved may have his action of false imprisonment.”);

Sherriff of Hampshire v. Godfrey, 87 Eng. Rep. 1247,

1247 (K.B. 1738) (“[I]f he knows there is a process

against him, and submit to it, it is an arrest[.]”); 1

Richard Burn, The Justice of the Peace 275 (28th ed.

1837) (“In making the arrest, the constable or party

making it should actually seize or touch the offender’s

body, or otherwise restrain his liberty.” (emphasis

added)).

2. Accordingly, courts applying the common law

would have agreed that arrests occurred when Officer

Marzolf issued a command to stop, and the children

complied. Horner, B.N.P. 62. Based on only the

dispatcher’s description that one suspect was taller

than the other, Officer Marzolf instructed the boys to

stop, drew his weapon, ordered them to lie on the

ground, and stood over them with his weapon trained

on their backs even after their parents arrived on the

scene to identify them. Pet. 5–9.

The boys’ immediate compliance with Officer

Marzolf’s orders, faced with potentially deadly force,

was a quintessential “submission to the assertion of

authority.” Hodari D., 499 U.S. at 626 (emphasis

omitted). Founding- and Reconstruction-era courts

applying the common law would have thus found that

Officer Marzolf arrested the boys even before he

applied handcuffs and physically detained them.

17

*

*

*

In sum, the decision below would be

unrecognizable to those who ratified the Fourth and

Fourteenth Amendments. No common law court in

1791 or 1868 would have concluded that an officer did

not “arrest” two compliant children when he

handcuffed them and held them on the ground at

gunpoint. The Eighth Circuit’s contrary decision risks

the “arbitrary and oppressive interference by

enforcement officials with the privacy and personal

security of individuals” that the Fourth Amendment

was crafted to prevent. United States v. MartinezFuerte, 428 U.S. 543, 554 (1976).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Avenue, N.W.

Suite 900

Washington, D.C. 20001

(202) 639-6023

jamunson@jenner.com

THOMAS H. DUPREE JR.

Counsel of Record

MATT GREGORY

TODD W. SHAW

VICTORIA C. GRANDA

ADDISON BENNETT

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8547

tdupree@gibsondunn.com

Counsel for Amicus Curiae

January 11, 2022