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Originalism in Torres v. Madrid
Michael Ramsey

Last week the Supreme Court decided Torres v. Madrid, which asked whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment.  (Answer: yes, 5-3 per Chief Justice Roberts).

Earlier I suggested that this case was a candidate for a liberal-originalist alliance, based on Justice Scalia's dicta in California v. Hodari D., 499 U.S. 621 (1991) (observing that “application of physical force to restrain movement” is a seizure under the Fourth Amendment “even when it is ultimately unsuccessful”) and the petitioners' strong assertions of originalist support.  And indeed, the Chief Justice, for himself and Justices Breyer, Sotomayor, Kagan and Kavanaugh, relies heavily on Hodari D. and the founding-era common law rule.

But Justice Gorsuch (writing for himself and Justices Thomas and Alito) dissents.  From his introduction: 

The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.

Until today, a Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it.

He makes some powerful points, leading (among other things) to a conclusion that Scalia's observation in Hodari D. was ill-considered.  Although I was initially inclined to think originalism favored the petitioners, on reflection the dissent seems more persuasive.  (But it seems odd that the Constitution would not limit an officer's authority to shoot a suspect as long as the suspect escaped).