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?

I. Concept One Way, Consequences the Other

Before I get to the common law rules, I want to point out that there are lots of ways of resolving Torres without reference to the common law rules. When I first heard about the Torres case, my thoughts were drawn to two other issues; the concept of seizures and the practical implications of how to interpret it in this setting. Because I suspect many readers will focus on these arguments, I thought I would flag them and say how I think they may cut.

On one hand, the usual concept of a Fourth Amendment seizure would point to the answer being that no seizure occurred. In modern Fourth Amendment law, a seizure is ordinarily a taking of control of an item. An officer does not take control of a person when he shoots a person but she does not stop. So you might say, as the court below did, that a shooting without a taking control is not a seizure.

On the other hand, a pragmatist might say that whether a person is seized in this kind of situation will come up mostly in excessive force actions permitted by modern Supreme Court caselaw. If we rely on Fourth Amendment law for a sensible excessive force doctrine, it would make sense to call any shooting of a person a seizure. That way it can allow civil suits in federal court based on it. So you might say, as some amicus briefs filed in Torres say, that a shooting without a taking control should be a seizure for those practical reasons.

So far this is pretty interesting. The concept of seizures seems to point one way, and the practical consequences seem to point the other way. It's the kind of tension that makes for an interesting case.

II. Enter the Originalist Syllogism

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?

III. The Forgotten Context of the Arrest Cases

In modern Fourth Amendment law, defining an arrest typically matters to determine if sufficient causes existed to make the act legal. An arrest requires probable cause. You need to know when an arrest occurred because you need to know if the government had sufficient cause to satisfy the Fourth Amendment.

But the definition of arrest arose at common law in a very different context. Here's my tentative sense of the history, which I'll be happy to correct later if it turns out I misunderstood things:

The world of arrests at common law was dramatically different from what it looks like today. There were no professional police officers. Arrests could be made by private parties or else by part-time officials—most often constables, but also sheriffs and watchmen — who were supposed to make arrests and bring arrestees to the local justice of the peace. Most arrests were made by a warrant ordering the constable or other official to make the arrest. The warrant was a court order commanding that the constable or other official make the arrest and bring the prisoner to the judge.

But there was a problem. The part-time officials such as constables (and I'll just call them all constables for the sake of brevity) didn't have much interest in making arrests and detaining people after the arrest. It was dangerous and time-consuming work, and they in general weren't paid for it. Who wants to risk getting hurt arresting someone and forcibly bringing him to the local judge? There's not nothing in it for the constable. So part of the law regulating constables at common law was about forcing the constables to do their jobs—to make arrests and to detain prisoners—or else face civil suits or criminal punishment.

The law regulating constables had two features relevant here. First, the constable was required to at least try to execute the warrant. A constable who declined to do it could be charged with a crime or sued for neglect of duty.

And second, a constable who made an arrest but then let the prisoner go could be charged with the crime of escape (see 590-95) or sued in tort under the tort of escape. A constable was liable for escape when he made an arrest but then the prisoner went free, either because the constable intentionally let the prisoner go (called "voluntary escape") or the prisoner escaped despite the constable's efforts to detain him (called "negligent escape").

The law of negligent escape was pretty tough on constables. As one treatise summarized, "the only excuse" for not holding on to a prisoner was an "act of God or the public enemy"—in other words, crazy unforeseeable situations. It sounds to me less like a negligence standard than strict liability.

To modern ears this all seems exceedingly weird. A modern crime of escape exists, but it punishes the prisoner who escaped from custody. As I read the history, though, the common law regulation of escape was different. It punished the constable who made the arrest but then either negligently or intentionally let the prisoner escape.

IV. Unsuccessful Uses of Physical Force Then and Now

Why does this matter? Well, maybe it doesn't. But it might matter, I think, because it means that the common law caselaw on the meaning of "arrests" arose in a very different context than we know today. The elements of escape required that an arrest had occurred first. As a result, courts typically defined what was an "arrest" when saying whether a constable was liable for escape.

This context is interesting, I think, because the practical consequence of defining arrest in that era would seem to be really different than the practical consequence of defining a seizure today. When courts defined arrests at common law, they were trying to figure out when a constable was sufficiently in charge of a person such that the constable was then subject to legal action for letting the person escape.

This could matter, I think, because in that setting it would have made no sense to require that the constable actually get the person to submit to the officer before saying an arrest had occurred. The underlying tort and crime was not doing a sufficient job keeping a person detained. A constable who announced an arrest and actually laid his hands on the person to be arrested, but then couldn't bring the person into a quasi-permanent detention, was guilty of the exact same thing as the underlying cause of action—letting the person go. It would make sense to treat those the same way.

Indeed, if I understand the context correctly, it's hard to imagine a different common law rule. If the common law had required actual submission before the law of escape applied, then civil and criminal liability would hinge on a metaphysical question: Was there a non-zero amount of time when the constable had control of the person to be arrested?

Consider an example. Imagine a constable has a warrant ordering him to arrest John Smith. The constable walks up to John Smith, announces Smith's arrest, and physically grabs Smith. Smith resists, breaks free, and runs away. Unless the rule were that these facts amounted to an arrest, the constable would not be liable for escape if the person had not been controlled for any time but would be liable if the person had been controlled even for a hundredth of a second. But in a melee between the constable and the arrestee, how could you possibly distinguish these two cases?

The more obvious place to draw the line in that common law doctrinal context would be that any touching (when the arrest was announced, at least) was enough to say there was an arrest. That way it didn't matter whether the constable had grabbed Smith and Smith instantly broke free or the constable grabbed Smith and held him for a fraction of a second or thirty seconds or thirty minutes. They would all be treated together, sensibly, as an escape that followed an arrest.

V. Does This Matter For Torres?

To me this all raises an interesting question: Does the different context between an "arrest" at common law and an arrest today mean that the common law definition should be looked at more skeptically for possible application today? Or do we say that an arrest is an arrest, and that the same definition should apply? To what extent does the different context call for a different rule?

I think there is at least some precedent in the Fourth Amendment excessive force context for saying that the context of old rules means that they should no longer apply uncritically today. That was the reasoning of the Court in Tennessee v. Garner when the Court rejected the common law feeling-felon rule for the reasonableness of stops. But assuming that was right in Garner, whether that same thinking should lead to similar skepticism of the common law definition of arrests is another question.

Anyway, I don't personally have a view of what the right answer is here. And it's possible that none of this will get flagged in the briefs or be something the Justices decide to take on. But I think it's a really interesting set of questions.