The application of physical force to the body of a person with intent to restrain is a Fourth Amendment “seizure” even if the person does not submit and escapes, the U.S. Supreme Court held March 25 in Torres v. Madrid.
Roxanne Torres was in the parking lot of an apartment complex, which was being searched by police.  Torres was not the target of the search warrant.
Police approached Torres’ car to speak with her.  She thought the officers were carjackers, and hit the gas to escape.  Officers fired 12 shots at Torres, with two hitting her.  Despite this, she was able to speed away.
Torres brought a Sec. 1983 action against the officers, claiming the shooting was an unreasonable seizure because officers used excessive force.
The district court and 10th Circuit dismissed Torres’ claim.  They ruled that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive force claim” since “no seizure can occur unless there is a physical touch or show of authority,” and “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect.
The Supreme Court reversed, in a 5-3 opinion by Chief Justice Roberts.
“We largely covered this ground in California v. Hodari D., 499 U.S. 621 (1991),” the Court said, but added that Hodari D. – “which principally concerned a show of authority” – does not control the outcome of this case.   
“Hodari D. articulates two pertinent principles,” the Court said.  “First, common law arrests are Fourth Amendment seizures.  And second, the common law considered the application of force to the body of a person with intent to restrain to be an arrest, no matter whether the arrestee escaped.”
The common law regarded the “slightest touch” as an arrest, the Court said.  
“This case, of course, does not involving ‘laying hands’ [on an arrestee] … but instead a shooting,” the Court said. “[W]e are aware of no common law authority addressing an arrest under such circumstances, or indeed any case involving an application of force from a distance.” 
“[W]e see no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest,” the Court said.  “We will not carve out this greater intrusion on personal security from the mere-touch rule just because the founding fathers did not confront apprehension by firearm.”
“We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure,” the Court said.  “A seizure requires the use of force with intent to restrain.” 
“Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests and intent to restrain, for we rarely probe the subjective motivation of police officers in the Fourth Amendment context,” the Court added.
“While mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain,” the Court explained.  “A tap on the shoulder to get one’s attention will rarely exhibit such an intent.”
“Nor does the seizure depend on the subject perceptions of the seized person,” the Court said.
“The rule we announce today is narrow,” the Court cautioned.  “In addition to the requirement of intent to restrain, a seizure by force – absent submission – lasts only as long as the application of force.  That is to say that the Fourth Amendment does not recognize any ‘continuing arrest during the period of fugitivity.’” 
“The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial,” the Court concluded.
Justice Gorsuch, joined by Justices Thomas and Alito, dissented.
Justice Barrett did not participate in the case.