SCOTUS Preview: The Fourth Amendment, Police Accountability, and Unsuccessful Seizures

BY: Priyanka Shingwekar

Priyanka is a sophomore in the College of Georgetown University studying government, economics, and philosophy. She is a line editor for the Georgetown University Undergraduate Law Review.


This term in Torres v. Madrid, the U.S. Supreme Court will confront a case with important questions for police accountability under the Fourth Amendment of the U.S. Constitution.[1] In the wake of the Black Lives Matter protests this summer, the verdict of Torres is being closely monitored. The outcome could potentially create a constitutional loophole for the use of excessive force by the police when pursuing a suspect without a warrant. The first question before the Court is whether law enforcement officers conduct a “seizure” within the meaning of the Fourth Amendment when they attempt to detain a suspect by the use of physical force but are unsuccessful. The second question is whether physical force must be successful in detaining a suspect to constitute a “seizure.”[2]

In 2014, New Mexico State Police officers Richard Williamson and Janice Madrid were acting upon an arrest warrant for Kayenta Jackson that led them to an apartment complex in Albuquerque.[3] Another citizen, Roxanne Torres was in the parking lot of the apartment complex as the officers approached her car. Perceiving the officers as carjackers, Torres entered her vehicle and drove forward. The officers shot at her twice, injuring Torres as she left the scene. Officers Madrid and Williamson testified that they fired at the driver to stop the car from hitting Madrid out of fear of injury. Torres was later arrested and pleaded no contest to three crimes: aggravating fleeing from a law enforcement officer, assault on a police officer, and unlawfully taking a motor vehicle. A no contest plea means, while she did not admit guilt, she did admit the truth of the facts alleged in the indictment.[4]

            In October 2016, Torres filed a complaint against the police officers in the federal district court, alleging the excessive use of force as a violation of her Fourth Amendment rights.[5] Her claim against the officers is that they committed a violation of the Fourth Amendment for unreasonable seizure in the shooting. However, the court concluded that the officers had not successfully seized Torres at the time of the shooting. Without a seizure to cite, the court decided that there could be no violation of the Fourth Amendment’s prohibition of unreasonable search and seizure. Therefore, the district court granted summary judgement for the officers. The U.S. Court of Appeals for the Tenth Circuit affirmed the lower court’s decision.[6] Thus, Torres filed an appeal with the Supreme Court. Torres asked the Supreme Court to reverse and hold that whenever the police use deadly force, such as firing their weapons to restrain someone, the police seize that person within the meaning of the Fourth Amendment, even if the person eludes police custody.

            With this case, the Court will need to clarify what constitutes as a seizure under the Fourth Amendment. Specifically, the Justices will need to delineate the differences between touching someone directly with one’s hands and using one’s hands to touch another person with an inanimate object, on the other in a constitutional definition of a seizure.[7] One question that arose briefly at the oral argument in this case was whether shooting a person in the back qualifies as a seizure even though the officer’s “touching” of or applying physical force to the suspect happened indirectly through the projectile of a bullet.[8] Furthermore, the second issue of this case is whether an unsuccessful seizure is still considered a seizure for purposes of the Fourth Amendment. The officers maintained that to successfully complete a Fourth Amendment seizure, they would have had to intentionally acquire physical control, which did not occur because Torres fled from the scene. However, the Court had previously ruled in California v. Hodari D. in 1991 that touching or applying physical force to the suspect is a seizure, even if the touching or physical force fails to lead to successful apprehension.[9] The new question in front of the Court is whether that seizure would be considered unreasonable and, thus, a violation of Torres’ Fourth Amendment rights.

            Although this case does not directly pertain to a current anti-police protest, Torres could create a loophole that would give the police more protection in future excessive force cases. In an amicus brief, the NAACP Legal Defense and Educational Fund wrote that a ruling in favor for the police could “open the door to countless more unjustified shootings against innocent people, a burden that will disproportionately affect African-American communities.”[10] In cases where victims of police brutality are able to flee, they may not be able to rightfully contest the use of excessive force that would have violated the Fourth Amendment. If the Court rules that the unreasonable shooting of Torres does not constitute an illegal seizure, this could also have dangerous results for the use of other forms of physical force, such as tasers or batons. At a time where the U.S. has become increasingly aware of police brutality, the verdict of Torres v. Madrid is anxiously awaited.

            I believe that the Court should rule in favor of Torres in this case. The Fourth Amendment’s protection against unreasonable searches and seizures embodies the core values of security and privacy, and a verdict for the police officers would go against the central aim of the amendment’s provisions. To accomplish this, the definition of a “seizure” should be somewhat expanded to encompass the different ways a police officer can apply force, whether through physical touch or through a bullet.


[1] Torres v. Madrid, SCOTUSblog, https://www.scotusblog.com/case-files/cases/torres-v-madrid/.

[2] Torres v. Madrid, SCOTUSblog.

[3] Ibid.

[4] Robert A. Beattey, “What You Should Know About Pleading ‘No Contest,’” Ohio State Bar Association, September 27, 2016, https://www.ohiobar.org/public-resources/commonly-asked-law-questions-results/
criminal-justice/what-you-should-know-about-pleading-no-contest/.

[5] Torres v. Madrid, Constitutional Accountability Center, 2021, https://www.theusconstitution.org/litigation/torres-v-madrid/.

[6] Torres v. Madrid, SCOTUSblog.

[7] Sherry F. Colb, “What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid,” Verdict Justia, November 4, 2020, https://verdict.justia.com/2020/11/04/what-is-a-seizure-and-what-is-a-holding-
the-court-hears-argument-in-torres-v-madrid.

[8] Torres v. Madrid, SCOTUSblog.

[9] California v. Hodari D., Oyez, https://www.oyez.org/cases/1990/89-1632.

[10] Nick Sibilla, “Supreme Court Could Create New Fourth Amendment Loophole For Police Shootings,” Forbes, October 12, 2020, https://www.forbes.com/sites/nicksibilla/2020/10/12/supreme-court-
could-create-new-fourth-amendment-loophole-for-police-shootings/?sh=77e975e95842

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