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Torres v. Madrid: Possibly a Harder Cases than it Looks?
Michael Ramsey

Torres v. Madrid, argued to the Supreme Court last week, asks whether an attempted but unsuccessful detention by police is a "seizure" under the Fourth Amendment.  In a prior post, I said this seems (from an originalist perspective) sort of obviously true, as that was the eighteenth century common law rule.  But oral argument suggests otherwise, as SCOTUSblog recounts


For the conservative justices attracted to the officers’ narrow “seizure” definition, the existence of contrary precedent is only part of the problem. There is the added fact that Hodari D. is an originalist precedent written by Justice Antonin Scalia. In his opinion for the court, Scalia wrote that, under the common law at the time of the Framing, “the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient” to constitute a seizure. This prompted Justice Brett Kavanaugh to press Standridge [attorney for the respondent] to acknowledge that, “you’re arguing, as I understand it, that Justice Scalia and really all nine justices in that case were wrong about the original meaning of the Fourth Amendment.” Kavanaugh similarly pushed Taibleson [attorney for the United States supporting petitioner] on this question, with Taibleson ultimately affirming that the United States’ official position was that Scalia got the history right. Sotomayor fanned the flames, wryly noting that Scalia “very much was an advocate of the common law and … quite well informed about it generally.”

With this array of originalist forces against him, Standridge contended that the court should “reject historic relics that are not suited to the modern era” in favor of rules that “have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.” Curiously, it was the court’s conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the Framing-era cases that, he said, primarily concerned “Dickensian debt collection practices.” Thomas suggested that the cases might be distinguishable because they arose outside the criminal context and involved direct applications of force. Justice Samuel Alito pointed out that none of the cases involved shootings. There seemed to be an irony here in light of the proceedings unfolding at that same moment across the (virtual) street. At the same time that Judge Amy Coney Barrett was extolling the clarity of originalism in her confirmation hearings in the Senate, the court’s most prominent originalists seemed to be suggesting that Framing-era precedents offered little insight into the proper application of the Constitution in a modern context.


The justices returned to more familiar territory as they sparred over the plain meaning of the term “seizure.” The officers’ strongest textual argument is that the term’s ordinary meaning does not apply to unsuccessful attempts to restrain someone. To illustrate the point, Gorsuch deployed the day’s most extreme hypothetical, conjuring up a driver who “blast[s] through” roadblocks “at 100 miles an hour” with police “bazookas” (!) firing all around, and yet suffers only a scrape. Alito picked up the thread, asking about “a baseball pitcher [who] intentionally beans the batter.” Thomas added a question about someone hit by “a snowball.” None of these instances, the justices suggested, fit the term “seizure.” The examples prompted Kavanaugh to challenge Corkran [attorney for the petitioner] to explain “why shouldn’t we just follow the ordinary usage of the term ‘seizure.’” In an apparent appeal to the justices aligning against her, Corkran responded that “it’s the ordinary meaning at the time of the founding that controls.” ...

It's not going to be a good look for the originalist Justices if they favor the side that relies on an argument "that the court should 'reject historic relics that are not suited to the modern era' in favor of rules that 'have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.'”

RELATED:  At Volokh Conspiracy, Josh Blackman has an amusing side note on the oral argument: Justice Kavanaugh asks his former clerk, Assistant SG Rebecca Taibleson, if Justice Scalia, her other former boss, was correct about originalism.