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02/12/2020

Orin Kerr on Originalism and Torres v. Madrid
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: The Role of Originalism in Torres v. MadridFrom the introduction:

In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure."  The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her.  The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away.  Was the shooting that injured her a Fourth Amendment "seizure"?

In this post, I want to discuss a really interesting question that I see underlying Torres:  To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?

And from further along:

But what makes Torres a really fascinating case, I think, is the role of originalism in settling the dispute.  So now let's turn to the common law rules that are the focus of a lot of the briefing so far in the case.  The brief of the petitioner, plaintiff Roxanne Torres, relies heavily on the following originalist syllogism:

(1) at the time of the Fourth Amendment's enactment, it was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them;

(2) an arrest is a type of Fourth Amendment seizure; and therefore,

(3) it is a seizure for the government to apply physical force to a person in an unsuccessful effort to detain them.

This is a really interesting syllogism, I think, because it seems right in some ways but questionable in others.

On one hand, it's true that at the time of the Fourth Amendment's enactment, it generally was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them.   On the other hand, there's a twist here.  Although the briefs filed so far don't flag this, my sense is that the common law context in which courts defined arrest in this way is quite different from the context today.

And that differences raises a really fun legal question for the originalist-inclined: When a concept was defined at common law in a specific context that is different from the context in which it arises today, should you apply the common law definition?  Or does the different context suggest a need for a different definition?

Some very interesting history (that I had not heard before) follows.