Courthouse Steps Oral Argument Teleforum: Torres v. Madrid

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In 2014, Roxanne Torres pleaded guilty to three crimes: aggravated fleeing from a law enforcement officer, assault on a police officer, and unlawfully taking a motor vehicle. All of these crimes occurred while Ms. Torres was under the influence of methamphetamine. Ms. Torres was stopped by two police officers only after one shot and wounded her. In October of 2016, she filed a civil rights complaint in federal court against the two arresting officers in which she claimed the officers used excessive force and conspired to use excessive force. After the court interpreted her complaint under the Fourth Amendment, the court dismissed the case claiming the officers are entitled to qualified immunity. The court reasoned that because there was no seizure at the time of the shooting, there could be no Fourth Amendment violation. The U.S. Court of Appeals for the Tenth Circuit affirmed the lower court's decision. 


Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Nick Marr:  Welcome all to The Federalist Society’s Teleforum conference call. This afternoon, October 16, 2020, we’re having a special Courthouse Steps Oral Argument Teleforum on Torres v. Madrid. I’m Nick Marr. I’m Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.


      And this afternoon, we’re fortunate to have with us Mr. Kent Scheidegger. He’s the Legal Director and General Counsel of the Criminal Justice Legal Foundation. After Mr. Scheidegger gives his opening remarks and we have a couple questions, we’ll go to audience question and answer. So be thinking of those for when we get to that portion of the call. You all have those in mind and get a chance to discuss.


      All right, thanks for being with us here today. Kent, the floor is yours.


Kent Scheidegger:  Thank you. On October 14th, the United States Supreme Court heard oral argument in the case of Torres v. Madrid. This case involves the question of what is a seizure within the meaning of the Fourth Amendment. The case may be closer than many people had anticipated, depending on the willingness of the justices to reconsider a statement in a 1991 case California v. Hodari D., a case that predates the tenure of any of the justices presently on the Court.


      This case began six years ago in Albuquerque, New Mexico where state police went to an apartment complex to arrest someone engaged in an organized crime ring. When officers Janice Madrid and Richard Williamson arrived, there were two people standing in front of the apartment in question. As the officers approached, one of the two ran into the apartment. The other, Roxanne Torres, who was on a multi-day methamphetamine binge, got into an SUV that was backed into a parking space.


      Although the officers were wearing clearly marked vests, Ms. Torres later testified she did not know they were police officers, and when they tried to open the car door, she believed she was being car jacked. She started to pull out of the parking space, moving toward the officer in front, and placing the officer on the side in danger of being crushed. The officers fired and two bullets hit Ms. Torres. Ms. Torres did not stop, however, or even slow down. She collided with another car, stole yet another car, got onto Interstate 40, and drove 75 miles to the next town, Grants, New Mexico, where she finally went to a hospital.


      She later pleaded guilty to criminal charges, including assault on a police officer.


      Two years later, Ms. Torres filed a federal civil rights action. The district court granted summary judgment, finding that she had not been seized at the time the officers fired their guns, and therefore had no Fourth Amendment cause of action. The Tenth Circuit affirmed.


      The primary Supreme Court precedent discussed in the argument is that 1991 case Hodari D. That case involved a teenager who threw away illegal drugs while a police officer was pursing him but before any physical force had been applied. Justice Scalia wrote the opinion of the Court, joined by seven justices.


      The Hodari D. opinion begins by noting that for seizures of things other than people, the early cases clearly require physical control before there has been a seizure. The application of force, if unsuccessful in gaining actual control, is not a seizure of an object within the meaning of the Fourth Amendment. Hodari then goes on to discuss the law of arrested persons. Justice Scalia referred to arrest as the quintessential seizure of the person under our Fourth Amendment jurisprudence.


      This is the crux of the issue in the present case, and remarkably, Hodari did not cite any authority for it. While most arrests are undeniably seizures, the proposition to any action that constituted an arrest at common law is necessarily a seizure for Fourth Amendment purposes produced significant disagreement among the justices.


      There was considerable discussion at argument about common law cases on the law of arrest, where several justices noted that these cases arose in a different context. They typically involve arrests made in civil cases or misdemeanor criminal cases. Whether a person had been placed under arrest at an earlier point often determined what action could be taken at a later point. For example, breaking and entering a house was authorized for retaking an escaped prisoner but not for the original arrest.


      There was also some discussion about whether there was a distinction in the earlier cases between an officer placing hands on the arrestee versus using some object or projectile such as a bullet. Most arrests at the time involved the use of hands and occasionally objects but rarely firearms. It seems unlikely from the discussion that the present case will turn on this distinction, though.


      Justice Gorsuch was the most forceful in questioning whether these common law arrest cases had any real relevance to the Fourth Amendment seizure question. He referred to them repeatedly as “Dickensian debt collection process,” an interesting term.


      Justice Kavanaugh most clearly stated the two-part question regarding the precedent in Hodari D and the statements in that opinion that any application of physical force to stop a person constitutes a seizure as well as an arrest, even if unsuccessful.


      First, are those statements precedent rather than dicta, even though the facts of the case do not involve any actual application of force up to the time of the question? Second, was Justice Scalia correct that all common law arrests constitute Fourth Amendment seizures?


      The United States Solicitor General had opposed such a rule in Hodari. However, in the present case, the SG appeared as amicus supporting the plaintiff asking the Court to accept Hodari as a clear and workable rule that has been in force for many years. The SG made clear, however, that they were only supporting the plaintiff on the seizure question and that the officers might well prevail on remand on the basis that their use of force was reasonable under the circumstances.


      Justices Sotomayor and Kagan were particularly skeptical of the argument that the key passage of Hodari could be characterized as dicta. They asserted that it was part of the reasoning leading to conclusion, even if expanding beyond the facts of the case. They were critical of what they viewed as the defendant’s very narrow view of what constitutes a precedent. One striking thing about this argument is how strongly the attorney for the plaintiff insisted that the case must be decided under the original understanding of the Fourth Amendment. It will be interesting to see how the Court comes down on this issue and how broadly it indicates the original understanding as controlling.


      There are major aspects of Fourth Amendment law that are contrary to the original understanding beyond serious question. The rule of Tennessee v. Garner, that police cannot use deadly force to stop a fleeing burglar, is slightly contrary to the common law rule. Even more importantly, the rule excluding evidence seized in violation of the Fourth Amendment has no basis in the text or history of the Constitution and is contrary to early American practice. A strong statement on originalism and the Fourth Amendment could be more important than the outcome of this rather unusual case, whichever side prevails. Thank you.


Nick Marr:  Thanks, Kent. So we’ll open it up for the audience to ask questions now. And I’ll just start off with the first question. Give our listeners a chance to line up here in the queue. Did you see anything unusual from oral argument that you wouldn’t have expected based on either justices’ past records or the briefs or anything like that? Any new things come up that are worth keeping an eye on?


Kent Scheidegger:  I wouldn’t say there was anything unusual. I think most of the justices came out either leaning one way or the other way or hard to read and kind of in the middle. Pretty much as we would expect. Of course, of all the cases being argued before the eight-member Court today, we always wonder if they may split 4-4. And that’s a possibility in this case.


      I was kind of surprised, overall, that there was as much interest in disavowing that statement from Hodari D. I hadn’t expected quite that much willingness to do that.


Nick Marr:  Interesting. Kent, we don’t have any questions in the queue right now.


Kent Scheidegger:  All right.


Nick Marr:  Maybe you’d like to -- is there another issue you’d like to talk about for this case? Or maybe you’d like to discuss a little bit about where you might think this could go, or . . .?


Kent Scheidegger:  Also, another theme in the discussion that may have implications far beyond the facts of this case is what really constitutes a precedent. We have the distinction in reading Supreme Court cases between the holding of the case and obiter dicta, which statement’s made merely in passing. And there is an issue here as to statements made in the Hodari opinion that go beyond the facts of that case, and to what extent are they a binding precedent, and to what extent are they merely dicta?


Nick Marr:  Interesting point. So Kent, you mentioned that maybe there’s an issue about [inaudible 9:49]. Depending on how the seizure ruling comes out, there’s still something for this case -- there’s still somewhere for this case to go on remand. Do you want to discuss a little bit about that?


Kent Scheidegger:  Yeah. So if the officers prevail on this seizure point and the case is over, but even if they do not, even if the Court goes along with the solicitor general and says this was a seizure, that still doesn’t mean that the plaintiff will prevail. They have a case, and a good case, under the circumstances of this particular case that their use of force was valid and reasonable and in compliance with the Fourth Amendment.


Nick Marr:  Interesting. [CROSSTALK] --


Kent Scheidegger:  -- So that would be decided --


Nick Marr:  Go ahead.


Kent Scheidegger:  That would be decided on remand if the plaintiff’s position does prevail in the Supreme Court.


Nick Marr:  Okay. So we had a few new callers join in. We’re in the question and answer portion of the call. We’re discussing Torres v. Madrid and the meaning of seizure in the Constitution. It looks like we don’t have any questions in the queue yet again. Don’t everybody jump in at once. Kent, is there anything else you might want to add?


Kent Scheidegger:  Either I’ve already bored everybody to death --

Nick Marr:  -- Or you’ve covered everything.


Kent Scheidegger:  -- or I’ve covered everything so clearly that nobody has any questions. Some of the justices are fairly easy to read from oral argument and others, you know -- probing both sides and are more difficult to read. So I wouldn’t venture a prediction on how the vote’s going to come out. I think there’s enough hard-to-read votes that we can’t do that.


      It’s also worth noting that the language of the Hodari opinion is in a little bit of tension with another Supreme Court precedent, Brower v. Inyo County, where the Court said that a seizure required a use of force that actually does stop the person. That came up during the argument. It wasn’t a major theme, but it is worth noting that there is contrary language in a Supreme Court precedent.


Nick Marr:  Very interesting. Well, if there aren’t any more questions here—again, we got a few new callers too—otherwise, Kent, I’ll guess I’ll offer you a chance for any closing remarks you might want to make here and we might wrap up a little bit early.


Kent Scheidegger:  Well, I think we’re plenty early, but yeah, I think we’ve covered all the points. We’ll see how this case turns out, and I’m particularly interested in seeing what they say about original understanding in the Fourth Amendment. I think that may end up being the most important aspect of the opinion.


Nick Marr:  Yeah, fascinating. Well, thank you, Kent, and thanks for calling in and for the benefit of your valuable time and expertise. And to the audience who are calling in, as a reminder to you, we welcome your feedback by email at [email protected]. As always, keep an eye on your emails and our website for announcements about upcoming Teleforum calls. We have more of these Courthouse Steps Teleforums coming and announcements about our National Lawyer’s Convention, which is going to be virtual next month. So check those out. But for this afternoon, thanks for calling in and we are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at