Torres v. Madrid

P R E L I M I N A R Y P R I N T
Volume 592 U. S. Part 2
Pages 306–350
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 25, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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306 OCTOBER
TERM, 2020
Syllabus
TORRES v. MADRID et al.
certiorari
to the united states court of appeals for
the tenth circuit
No. 19–292. Argued October 14, 2020—Decided March 25, 2021
Respondents Janice Madrid and Richard Williamson, offcers with the New
Mexico State Police, arrived at an Albuquerque apartment complex to
execute an arrest warrant and approached petitioner Roxanne Torres,
then standing near a Toyota FJ Cruiser. The offcers attempted to
speak with her as she got into the driver's seat. Believing the offcers
to be carjackers, Torres hit the gas to escape. The offcers fred their
service pistols 13 times to stop Torres, striking her twice. Torres man-
aged to escape and drove to a hospital 75 miles away, only to be airlifted
back to a hospital in Albuquerque, where the police arrested her the
next day. Torres later sought damages from the offcers under 42
U. S. C. § 1983. She claimed that the offcers used excessive force
against her and that the shooting constituted an unreasonable seizure
under the Fourth Amendment. Affrming the District Court's grant of
summary judgment to the offcers, the Tenth Circuit held that “a sus-
pect's continued fight after being shot by police negates a Fourth
Amendment excessive-force claim.” 769 Fed. Appx. 654, 657.
Held: The application of physical force to the body of a person with intent
to restrain is a seizure even if the person does not submit and is not
subdued. Pp. 311–325.
(a) The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures.” This Court's precedents have interpreted
the term “seizure” by consulting the common law of arrest, the “quintes-
sential” seizure of the person. Payton v. New York, 445 U. S. 573, 585;
California v. Hodari D., 499 U. S. 621, 624. In Hodari D., this Court
explained that the common law considered the application of physical
force to the body of a person with the intent to restrain to be an arrest—
not an attempted arrest—even if the person does not yield. Id., at
624–625. A review of the pertinent English and American decisions
confrms that the slightest touching was a constructive detention that
would complete the arrest. See, e. g., Genner v. Sparks, 6 Mod. 173, 87
Eng. Rep. 928.
The analysis does not change because the offcers used force from a
distance to restrain Torres. The required “corporal seising or touching
the defendant's body,” 3 W. Blackstone, Commentaries on the Laws of

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307
Syllabus
England 288 (1768), can be as readily accomplished by a bullet as by the
end
of a fnger. The focus of the Fourth Amendment is “the privacy
and security of individuals,” not the particular form of governmental
intrusion. Camara v. Municipal Court of City and County of San
Francisco, 387 U. S. 523, 528.
The application of force, standing alone, does not satisfy the rule rec-
ognized in this decision. A seizure requires the use of force with intent
to restrain, as opposed to force applied by accident or for some other
purpose. County of Sacramento v. Lewis, 523 U. S. 833, 844. The ap-
propriate inquiry is whether the challenged conduct objectively mani-
fests an intent to restrain. Michigan v. Chesternut, 486 U. S. 567, 574.
This test does not depend on either the subjective motivation of the
offcer or the subjective perception of the suspect. Finally, a seizure
by force lasts only as long as the application of force unless the suspect
submits. Hodari D., 499 U. S., at 625. Pp. 311–318.
(b) In place of the rule that the application of force completes an ar-
rest, the offcers would assess all seizures under one test: intentional
acquisition of control. This alternative approach fnds support in nei-
ther the history of the Fourth Amendment nor this Court's precedents.
Pp. 318–323.
(1) The offcers attempt to recast the common law doctrine recog-
nized in Hodari D. as a rule applicable only to civil arrests. But the
common law did not defne the arrest of a debtor any differently from
the arrest of a felon. Treatises and courts discussing criminal arrests
articulated a rule indistinguishable from the one applied to civil arrests
at common law. Pp. 318–321.
(2) The offcers' contrary test would limit seizures of a person to
“an intentional acquisition of physical control.” Brower v. County of
Inyo, 489 U. S. 593, 596. While that test properly describes seizures by
control, seizures by force enjoy a separate common law pedigree that
gives rise to a separate rule. A seizure by acquisition of control in-
volves either voluntary submission to a show of authority or the termi-
nation of freedom of movement. But as common law courts recognized,
any such requirement of control would be diffcult to apply to seizures
by force. The offcers' test will often yield uncertainty about whether
an offcer succeeded in gaining control over a suspect. For centuries,
the rule recognized in this opinion has avoided such line-drawing prob-
lems. Pp. 321–323.
(c) The offcers seized Torres by shooting her with the intent to re-
strain her movement. This Court does not address the reasonableness
of the seizure, the damages caused by the seizure, or the offcers' entitle-
ment to qualifed immunity. Pp. 323–325.

308 TORRES
v. MADRID
Syllabus
769 Fed. Appx. 654, vacated and remanded.
Roberts,
C. J., delivered the opinion of the Court, in which Breyer,
Sotomayor, Kagan, and Kavanaugh, JJ., joined. Gorsuch, J., fled a
dissenting opinion, in which Thomas and Alito, JJ., joined, post, p. 325.
Barrett, J., took no part in the consideration or decision of the case.
Kelsi Brown Corkran argued the cause for petitioner.
With her on the briefs were E. Joshua Rosenkranz, Rachel
G. Shalev, Thomas M. Bondy, and Eric D. Dixon.
Rebecca Taibleson argued the cause for the United States
as amicus curiae urging vacatur. With her on the brief
were So l ici tor General Francisco, Assistant Attor neys
Gene ra l Benczko wsk i and D re iband, Depu ty So l ic i t o r
General Feigin, Deputy Assistant Attorney General Maug-
eri, Tovah R. Calderon, Jenny C. Ellickson, and Brant S.
Levine.
Mark D. Standr i d ge arg ued the cause for respond-
ents. With him on the brief were Mark D. Jarmie, Chris-
tina L. G. Brennan, James P. Sullivan, and Elizabeth
Anne Trickey.*
*Briefs of amici curiae urging reversal were fled for the American
Association for Justice et al. by Anton Metlitsky, Daniel J. Tully, Clark
M. Neily III, and Jay R. Schweikert; for the American Civil Liberties
Union et al. by David D. Cole, Dan Alban, Baher Azmy, Vanita Gupta,
Michael Zubrensky, Lynda Garcia, John Burton, and R. Samuel Paz; for
the Constitutional Accountability Center by Elizabeth B. Wydra, Brianne
J. Gorod, David H. Gans, and Brian R. Frazelle; for Fourth Amendment
Scholars by Ginger D. Anders, David P. Thoreson, and Brian J. Springer;
for the NAACP Legal Defense & Educational Fund, Inc., by Daniel Har-
awa, Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, Jin Hee Lee,
Kevin E. Jason, and Ashok Chandran; and for The Rutherford Institute
et al. by Jeffrey T. Green, Sarah O'Rourke Schrup, John W. Whitehead,
and Barbara E. Bergman.
Briefs of amici curiae urging affrmance were fled for the National
Association of Counties et al. by Elizabeth B. Prelogar, Barrett J. Ander-
son, Jeanne Detch, and Lisa Soronen; and for Restore the Fourth, Inc., by
Mahesha P. Subbaraman.
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309
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
The Fourth Amendment prohibits unreasonable “seizures”
to safeguard “[t]he right of the people to be secure in their
persons.” Under our cases, an offcer seizes a person when
he uses force to apprehend her. The question in this case is
whether a seizure occurs when an offcer shoots someone who
temporarily eludes capture after the shooting. The answer
is yes: The application of physical force to the body of a per-
son with intent to restrain is a seizure, even if the force does
not succeed in subduing the person.
I
At dawn on July 15, 2014, four New Mexico State Police
offcers arrived at an apartment complex in Albuquerque to
execute an arrest warrant for a woman accused of white col-
lar crimes, but also “suspected of having been involved in
drug traffcking, murder, and other violent crimes.” App.
to Pet. for Cert. 11a. What happened next is hotly con-
tested. We recount the facts in the light most favorable to
petitioner Roxanne Torres because the court below granted
summary judgment to Offcers Janice Madrid and Richard
Williamson, the two respondents here. Tolan v. Cotton, 572
U. S. 650, 655–656 (2014) (per curiam).
The offcers observed Torres standing with another person
near a Toyota FJ Cruiser in the parking lot of the complex.
Offcer Williamson concluded that neither Torres nor her
companion was the target of the warrant. As the offcers
approached the vehicle, the companion departed, and Tor-
res—at the time exper iencing methamphetamine w ith-
drawal—got into the driver's seat. The offcers attempted
to speak with her, but she did not notice their presence
until one of them tried to open the door of her car.
Although the offcers wore tactical vests marked with po-
lice identifcation, Torres saw only that they had guns. She
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310 TORRES
v. MADRID
Opinion of the Court
thought the offcers were carjackers trying to steal her
car
, and she hit the gas to escape them. Neither Offcer Ma-
drid nor Offcer Williamson, according to Torres, stood in the
path of the vehicle, but both fred their service pistols to stop
her. All told, the two offcers fred 13 shots at Torres, striking
her twice in the back and temporarily paralyzing her left arm.
Steering with her right arm, Torres accelerated through
the fusillade of bullets, exited the apartment complex, drove
a short distance, and stopped in a parking lot. After asking
a bystander to report an attempted carjacking, Torres stole
a Kia Soul that happened to be idling nearby and drove 75
miles to Grants, New Mexico. The good news for Torres
was that the hospital in Grants was able to airlift her to
another hospital where she could receive appropriate care.
The bad news was that the hospital was back in Albuquer-
que, where the police arrested her the next day. She
pleaded no contest to aggravated feeing from a law enforce-
ment offcer, assault on a peace offcer, and unlawfully taking
a motor vehicle.
Torres later sought damages from Offcers Madrid and
Williamson under 42 U. S. C. § 1983, which provides a cause
of action for the deprivation of constitutional rights by per-
sons acting under color of state law. She claimed that the
offcers applied excessive force, making the shooting an un-
reasonable seizure under the Fourth Amendment. The Dis-
trict Court granted summary judgment to the offcers, and
the Court of Appeals for the Tenth Circuit affrmed on the
ground that “a suspect's continued fight after being shot by
police negates a Fourth Amendment excessive-force claim.”
769 Fed. Appx. 654, 657 (2019). The court relied on Circuit
precedent providing that “no seizure can occur unless there
is physical touch or a show of authority,” and that “such
physical touch (or force) must terminate the suspect's move-
ment” or otherwise give rise to physical control over the
suspect. Brooks v. Gaenzle, 614 F. 3d 1213, 1223 (2010).
We granted certiorari. 589 U. S. ––– (2019).
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Opinion of the Court
II
The
Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” This case con-
cerns the “seizure” of a “person,” which can take the form of
“physical force” or a “show of authority” that “in some way
restrain[s] the liberty” of the person. Terry v. Ohio, 392
U. S. 1, 19, n. 16 (1968). The question before us is whether
the application of physical force is a seizure if the force, de-
spite hitting its target, fails to stop the person.
We largely covered this ground in California v. Hodari
D., 499 U. S. 621 (1991). There we interpreted the term “sei-
zure” by consulting the common law of arrest, the “quintes-
sential `seizure of the person' under our Fourth Amendment
jurisprudence.” Id., at 624. As Justice Scalia explained for
himself and six other Members of the Court, the common law
treated “the mere grasping or application of physical force
with lawful authority” as an arrest, “whether or not it suc-
ceeded in subduing the arrestee.” Ibid.; see id., at 625
(“merely touching ” suffcient to constitute an arrest). Put
another way, an offcer's application of physical force to the
body of a person “ `for the purpose of arresting him' ” was
itself an arrest—not an attempted arrest—even if the person
did not yield. Id., at 624 (quoting Whithead v. Keyes, 85
Mass. 495, 501 (1862)).
The common law distinguished the application of force
from a show of authority, such as an order for a suspect to
halt. The latter does not become an arrest unless and until
the arrestee complies with the demand. As the Court ex-
plained in Hodari D., “[a]n arrest requires either physical
force . . . or, where that is absent, submission to the asser-
tion of authority.” 499 U. S., at 626 (emphasis in original).
Hodari D. articulates two pertinent principles. 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 ar-
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312 TORRES
v. MADRID
Opinion of the Court
rest, no matter whether the arrestee escaped. We need not
decide
whether Hodari D., which principally concerned a
show of authority, controls the outcome of this case as a
matter of stare decisis, because we independently reach the
same conclusions.
At the adoption of the Fourth Amendment, a “seizure” was
the “act of taking by warrant” or “of laying hold on
suddenly”—for example, when an “offcer seizes a thief.” 2
N. Webster, An American Dictionary of the English Lan-
guage 67 (1828) (Webster) (emphasis deleted). A seizure did
not necessarily result in actual control or detention. It is
true that, when speaking of property, “[f]rom the time of the
founding to the present, the word `seizure' has meant a `tak-
ing possession.' ” Hodari D., 499 U. S., at 624 (quoting 2
Webster 67). But the Framers selected a term—seizure—
broad enough to apply to all the concerns of the Fourth
Amendment: “persons,” as well as “houses, papers, and ef-
fects.” As applied to a person, “[t]he word `seizure' readily
bears the meaning of a laying on of hands or application of
physical force to restrain movement, even when it is ulti-
mately unsuccessful.” 499 U. S., at 626. Then, as now, an
ordinary user of the English language could remark: “She
seized the purse-snatcher, but he broke out of her grasp.”
Ibid.
The “seizure” of a “person” plainly refers to an arrest.
That linkage existed at the founding. Samuel Johnson, for
example, defned an “arrest” as “[a]ny . . . seizure of the per-
son.” 1 A Dictionary of the English Language 108 (4th ed.
1773). And that linkage persists today. As we have re-
peatedly recognized, “the arrest of a person is quintessen-
tially a seizure.” Payton v. New York, 445 U. S. 573, 585
(1980) (internal quotation marks omitted); see Hodari D., 499
U. S., at 624.
Because arrests are seizures of a person, Hodari D. prop-
erly looked to the common law of arrest for “historical under-
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standings `of what was deemed an unreasonable search and
sei
zure when the Fourth Amendment was adopted.' ” Car-
penter v. United States, 585 U. S. –––, ––– (2018) (quoting
Carroll v. United States, 267 U. S. 132, 149 (1925); alteration
omitted). Sometimes the historical record will not yield a
well-settled legal rule. See, e. g., Atwater v. Lago Vista, 532
U. S. 318, 327–328 (2001); Payton, 445 U. S., at 593–596. We
do not face that problem here. The cases and commentary
speak with virtual unanimity on the question before us today.
The common law rule identifed in Hodari D.—that the
application of force gives rise to an arrest, even if the offcer
does not secure control over the arrestee—achieved recogni-
tion to such an extent that English lawyers could confdently
(and accurately) proclaim that “[a]ll the authorities, from the
earliest time to the present, establish that a corporal touch
is suffcient to constitute an arrest, even though the defend-
ant do not submit.” Nicholl v. Darley, 2 Y. & J. 399, 400,
148 Eng. Rep. 974 (Exch. 1828) (citing Hodges v. Marks, Cro.
Jac. 485, 79 Eng. Rep. 414 (K. B. 1615)). The slightest appli-
cation of force could satisfy this rule. In Genner v. Sparks,
6 Mod. 173, 87 Eng. Rep. 928 (Q. B. 1704), the defendant did
not submit to the authority of an arrest warrant, but the
court explained that the bailiff would have made an arrest if
he “had but touched the defendant even with the end of his
fnger.” Ibid., 87 Eng. Rep., at 929. So too, if a “bailiff
caught one by the hand (whom he had a warrant to arrest)
as he held it out of a window,” that alone would accomplish
an arrest. Anonymus, 1 Vent. 306, 86 Eng. Rep. 197 (K. B.
1677). The touching of the person—frequently called a lay-
ing of hands—was enough. See Dunscomb v. Smith, Cro.
Car. 164, 79 Eng. Rep. 743 (K. B. 1629). Only later did Eng-
lish law grow to recognize arrest without touching through
a submission to a show of authority. See Horner v. Battyn,
Bull. N. P. 62 (K. B. 1738), reprinted in W. Loyd, Cases on
Civil Procedure 798 (1916). Even so, the traditional rule

314 TORRES
v. MADRID
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persisted that all an arrest required was “corporal seising or
touch
ing the defendant's body.” 3 W. Blackstone, Commen-
taries on the Laws of England 288 (1768) (Blackstone).
Early American courts adopted this mere-touch rule from
England, just as they embraced other common law principles
of search and seizure. See Wilson v. Arkansas, 514 U. S.
927, 933 (1995). Justice Baldwin, instructing a jury in his
capacity as Circuit Justice, defned an arrest to include
“touching or putting hands upon [the arrestee] in the execu-
tion of process.” United States v. Benner, 24 F. Cas. 1084,
1086–1087 (No. 14,568) (CC ED Pa. 1830). State courts
agreed that “any touching, however slight, is enough,” But-
ler v. Washburn, 25 N. H. 251, 258 (1852), provided the offcer
made his intent to arrest clear, see Jones v. Jones, 35 N. C.
448, 448–449 (1852). Courts continued to hold that an
arrest required only the application of force—not control or
custody—through the framing of the Fourteenth Amend-
ment, which incorporated the protections of the Fourth
Amendment against the States. See Whithead, 85 Mass., at
501; Searls v. Viets, 2 Thomp. & C. 224, 226 (N. Y. Sup. Ct.
1873); State v. Dennis, 16 Del. 433, 436–437, 43 A. 261, 262
(1895); see also H. Voorhees, The Law of Arrest in Civil and
Criminal Actions § 74, p. 44 (1904).
Stated simply, the cases “abundantly shew that the slight-
est touch [was] an arrest in point of law.” Nicholl, 2 Y. &
J., at 404, 148 Eng. Rep., at 976. Indeed, it was not even
required that the offcer have, at the time of such an arrest,
“the power of keeping the party so arrested under re-
straint.” Sandon v. Jervis, El. Bl. & El. 935, 940, 120 Eng.
Rep. 758, 760 (Q. B. 1858). The consequences would be “per-
nicious,” an English judge worried, if the question of control
“were perpetually to be submitted to a jury.” Ibid.; cf. 3
Blackstone 120 (describing how “[t]he least touching of an-
other's person” could satisfy the common law defnition of
force to commit battery, “for the law cannot draw the line
between different degrees of violence”).
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This case, of course, does not involve “laying hands,” Sher-
i
ff v. Godfrey, 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B. 1739),
but instead a shooting. Neither the parties nor the United
States as amicus curiae suggests that the offcers' use of
bullets to restrain Torres alters the analysis in any way.
And we are aware of no common law authority addressing
an arrest under such circumstances, or indeed any case in-
volving an application of force from a distance.
The closest decision seems to be Countess of Rutland's
Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605).
In that case, serjeants-at-mace tracked down Isabel Holcroft,
Countess of Rutland, to execute a writ for a judgment of
debt. They “shewed her their mace, and touching her body
with it, said to her, we arrest you, madam.” Id., at 54a, 77
Eng. Rep., at 336. We think the case is best understood as
an example of an arrest made by touching with an object, for
the serjeants-at-mace announced the arrest at the time they
touched the countess with the mace. See, e. g., Hodges, Cro.
Jac., at 485, 79 Eng. Rep., at 414 (similar announcement upon
laying of hands). Maybe the arrest could be viewed as a
submission to a show of authority, because a mace served not
only as a weapon but also as an insignia of offce. See Kelly,
The Great Mace, and Other Corporation Insignia of the Bor-
ough of Leicester, 3 Transactions of the Royal Hist. Soc. 295,
296–301 (1874). But that view is diffcult to reconcile with
the fact that English courts did not recognize arrest by sub-
mission to a show of authority until the following century.
See supra, at 313.*
*The arrest was not Isabel's frst brush with the law or money troubles.
A decade earlier, Elizabeth Charlton sued to recover for the estate of her
husband, the fourth Earl of Rutland, an assortment of jewels allegedly
taken by Isabel, the widow of the third Earl of Rutland. Elizabeth bested
Isabel in the clash of the countesses, and Isabel was found liable for
940 pounds, worth about $400,000 today. Elizabeth Countess of Rut-
land v. Isabel Countess of Rutland, Cro. Eliz. 377, 78 Eng. Rep. 624
(C. P. 1595).

316 TORRES
v. MADRID
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However one reads Countess of Rutland, we see no basis
for
drawing an artifcial line between grasping with a hand
and other means of applying physical force to effect an ar-
rest. The dissent (though not the offcers) argues that the
common law limited arrests by force to the literal placement
of hands on the suspect, because no court published an opin-
ion discussing a suspect who continued to fee after being hit
with a bullet or some other weapon. See post, at 342–344
(opinion of Gorsuch, J.). This objection calls to mind the
unavailing defense of the person who “persistently denied
that he had laid hands upon a priest, for he had only cudg-
elled and kicked him.” 2 S. Pufendorf, De Jure Naturae et
Gentium 795 (C. Oldfather & W. Oldfather transl. 1934). The
required “corporal seising or touching the defendant's body”
can be as readily accomplished by a bullet as by the end of
a fnger. 3 Blackstone 288.
We will not carve out this greater intrusion on personal
security from the mere-touch rule just because founding-era
courts did not confront apprehension by frearm. While
frearms have existed for a millennium and were certainly
familiar at the founding, we have observed that law enforce-
ment did not carry handguns until the latter half of the 19th
century, at which point “it bec[a]me possible to use deadly
force from a distance as a means of apprehension.” Tennes-
see v. Garner, 471 U. S. 1, 14–15 (1985). So it should come
as no surprise that neither we nor the dissent has located a
common law case in which an offcer used a gun to apprehend
a suspect. Cf. post, at 344 (discussing Dickenson v. Watson,
Jones, T. 205, 84 Eng. Rep. 1218, 1218–1219 (K. B. 1682), in
which a tax collector accidentally discharged hailshot into a
passerby's eye). But the focus of the Fourth Amendment is
“the privacy and security of individuals,” not the particular
manner of “arbitrary invasion[ ] by governmental offcials.”
Camara v. Municipal Court of City and County of San
Francisco, 387 U. S. 523, 528 (1967). As noted, our prece-
dent protects “that degree of privacy against government
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Opinion of the Court
that existed when the Fourth Amendment was adopted,”
Ky
llo v. United States, 533 U. S. 27, 34 (2001)—a protection
that extends to “[s]ubtler and more far-reaching means of
invading privacy” adopted only later, Olmstead v. United
States, 277 U. S. 438, 473 (1928) (Brandeis, J., dissenting).
There is nothing subtle about a bullet, but the Fourth
Amendment preserves personal security with respect to
methods of apprehension old and new.
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. A seizure requires the use of
force with intent to restrain. Accidental force will not qual-
ify. See County of Sacramento v. Lewis, 523 U. S. 833,
844 (1998). Nor will force intentionally applied for some
other purpose satisfy this rule. In this opinion, we consider
only force used to apprehend. We do not accept the dis-
sent's invitation to opine on matters not presented here—
pepper spray, fash-bang grenades, lasers, and more. Post,
at 347.
Moreover, the appropriate inquiry is whether the chal-
lenged conduct objectively manifests an intent to restrain,
for we rarely probe the subjective motivations of police off-
cers in the Fourth Amendment context. See Nieves v. Bart-
lett, 587 U. S. –––, ––– (2019). Only an objective test “allows
the police to determine in advance whether the conduct con-
templated will implicate the Fourth Amendment.” Michi-
gan v. Chesternut, 486 U. S. 567, 574 (1988). While a mere
touch can be enough for a seizure, the amount of force re-
mains pertinent in assessing the objective intent to restrain.
A tap on the shoulder to get one's attention will rarely ex-
hibit such an intent. See INS v. Delgado, 466 U. S. 210, 220
(1984); Jones, 35 N. C., at 448–449.
Nor does the seizure depend on the subjective perceptions
of the seized person. Here, for example, Torres claims to
have perceived the offcers' actions as an attempted carjack-
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318 TORRES
v. MADRID
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ing. But the conduct of the offcers—ordering Torres to
stop
and then shooting to restrain her movement—satisfes
the objective test for a seizure, regardless whether Torres
comprehended the governmental character of their actions.
The rule we announce today is narrow. 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 recog-
nize any “continuing arrest during the period of fugitivity.”
Hodari D., 499 U. S., at 625. The feeting nature of some
seizures by force undoubtedly may inform what damages a
civil plaintiff may recover, and what evidence a criminal de-
fendant may exclude from trial. See, e. g., Utah v. Strieff,
579 U. S. 232, 237–238 (2016). But brief seizures are sei-
zures all the same.
Applying these principles to the facts viewed in the light
most favorable to Torres, the offcers' shooting applied physi-
cal force to her body and objectively manifested an intent to
restrain her from driving away. We therefore conclude that
the offcers seized Torres for the instant that the bullets
struck her.
III
In place of the rule that the application of force completes
an arrest even if the arrestee eludes custody, the offcers
would introduce a single test for all types of seizures: inten-
tional acquisition of control. This alternative rule is incon-
sistent with the history of the Fourth Amendment and our
cases.
A
The offcers and their amici stress that common law rules
are not automatically “elevated to constitutional proscrip-
tions,” Hodari D., 499 U. S., at 626, n. 2, especially if they are
“distorted almost beyond recognition when literally applied,”
Garner, 471 U. S., at 15. In their view, the common law doc-
trine recognized in Hodari D. is just “a narrow legal rule
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intended to govern liability in civil cases involving debtors.”
Br
ief for National Association of Counties et al. as Amici
Curiae 12. The dissent presses the same argument. See
post, at 339–341.
But the common law did not defne the arrest of a debtor
any differently from the arrest of a felon. Whether the ar-
rest was authorized by a criminal indictment or a civil writ,
“there must be a corporal seizing, or touching the defend-
ant's person; or, what is tantamount, a power of taking imme-
diate possession of the body, and the party's submission
thereto, and a declaration of the offcer that he makes an
arrest.” 1 J. Backus, A Digest of Laws Relating to the Of-
fces and Duties of Sheriff, Coroner and Constable 115–116
(1812). Treatises on the law governing criminal arrests
cited Genner v. Sparks, 6 Mod. 173, 87 Eng. Rep. 928—the
preeminent mere-touch case involving a debtor—for the
proposition that, “[i]n making the arrest, the constable or
party making it should actually seize or touch the offender's
body, or otherwise restrain his liberty.” 1 R. Burn, The
Justice of the Peace 275 (28th ed. 1837). When English
courts confronted arrests for criminal offenses, they too re-
lied on precedents concerning arrests for civil offenses. See
Bridgett v. Coyney, 1 Man. & Ryl. 1, 5–6 (K. B. 1827); Arrow-
smith v. Le Mesurier, 2 Bos. & Pul. 211, 211–212, 127 Eng.
Rep. 605, 606 (C. P. 1806). American courts likewise articu-
lated a materially identical defnition in criminal cases—that
“[t]he arrest itself is the laying hands on the defendant,”
State v. Townsend, 5 Del. 487, 488 (Ct. Gen. Sess. 1854), or
that an arrest is “the taking, seizing, or detaining of the per-
son of another, either by touching him or putting hands on
him,” McAdams v. State, 30 Okla. Crim. 207, 210, 235 P. 241,
242 (1925).
This uniform defnition also explains why an arrest by
mere touch carried legal consequences in both the criminal
and civil contexts. The point of an arrest was of course to
take custody of a person to secure his appearance at a pro-
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ceeding. But some arrests did not culminate in actual con-
trol
of the individual, let alone a trip to the gaol or compter.
See Nicholl, 2 Y. & J., at 403–404, 148 Eng. Rep., at 975–976.
When an offcer let an arrestee get away, the offcer risked
becoming a defendant himself in an action for “escape.” See
Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 204 (1940).
The laying of hands constituted a taking custody and would
expose the offcer to liability for the escape of felons and
debtors alike. See 1 M. Hale, Pleas of the Crown 590–591,
597, 603 (1736); 2 id., at 93 (no liability for escape “if the felon
were not once in the hands of an offcer”); see also Perkins,
25 Iowa L. Rev., at 206.
The tort of false imprisonment, which the dissent rightly
acknowledges as the “ `closest analogy' to an arrest without
probable cause,” post, at 336 (quoting Wallace v. Kato, 549
U. S. 384, 388–389 (2007)), reinforces the conclusion that the
common law considered touching to be a seizure. Stated
generally, false imprisonment required “confnement,” such
as “taking a person into custody under an asserted legal au-
thority.” Restatement of Torts §§ 35, 41 (1934); see 3 Black-
stone 127. But that element of confnement demanded no
more than that the defendant “had for one moment taken
possession of the plaintiff 's person”—including, “for example,
if he had tapped her on the shoulder, and said, `You are my
prisoner.' ” Simpson v. Hill, 1 Esp. 431, 431–432, 170 Eng.
Rep. 409 (N. P. 1795); see Restatement of Torts § 41, Com-
ment h (noting that “the touching alone of the person against
whom [legal authority] was asserted would be suffcient to
constitute” confnement by arrest when the authority was
valid). While the dissent emphasizes that “the court [in
Simpson] proceeded to reject the plaintiff 's claim for false
imprisonment,” post, at 337, that was only because “the con-
stable never touched the plaintiff, or took her into custody.”
1 Esp., at 431, 170 Eng. Rep., at 409.
To be sure, the mere-touch rule was particularly well docu-
mented in cases involving the execution of civil process. An
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offcer pursuing a debtor could not forcibly enter the debtor's
home
unless the debtor had escaped arrest, such as by feeing
after being touched. See Semayne's Case, 5 Co. Rep. 91a,
91b, 77 Eng. Rep. 194, 196 (K. B. 1604); see also Miller v.
United States, 357 U. S. 301, 307 (1958). Offcers seeking to
execute criminal process, on the other hand, possessed
greater pre-arrest authority to enter a felon's home. See
Payton, 445 U. S., at 598. But the fact that the common law
rules of arrest generated more litigation in the civil context
proves only that creditors had ready recourse to the courts
to pursue escape actions for unsatisfactory arrests. There
is no reason to suspect that English jurists silently adopted
a special defnition of arrest only for debt collection—indeed,
they told us just the opposite. See supra, at 319. Nothing
specifc to debt collection elevated escape from arrest into a
justifcation for entry of the home. Whenever a person was
“lawfully arrested for any Cause and afterwards escape[d],
and shelter[ed] himself in a House,” the offcer could break
open the doors of the house. 2 W. Hawkins, Pleas of the
Crown 87 (1721) (emphasis added).
In any event, the offcers and the dissent misapprehend
the history of the Fourth Amendment by minimizing the role
of practices in civil cases. “[A]rrests in civil suits were still
common in America” at the founding. Long v. Ansell, 293
U. S. 76, 83 (1934). And questions regarding the legality of
an arrest “typically arose in civil damages actions for tres-
pass or false arrest.” Payton, 445 U. S., at 592. Accord-
ingly, this Court has not hesitated to rely on such deci-
sions when interpreting the Fourth Amendment. See, e. g.,
United States v. Jones, 565 U. S. 400, 404–405 (2012); Boyd
v. United States, 116 U. S. 616, 626 (1886). We see no reason
to break with our settled approach in this case.
B
The offcers and the dissent derive from our cases a differ-
ent touchstone for the seizure of a person: “an intentional
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acquisition of physical control.” Brower v. County of Inyo,
489
U. S. 593, 596 (1989). Under their alternative rule, the
use of force becomes a seizure “only when there is a govern-
mental termination of freedom of movement through means
intentionally applied.” Id., at 597 (emphasis deleted); see
Brief for Respondents 12–15; post, at 330–331.
This approach improperly erases the distinction between
seizures by control and seizures by force. In all fairness,
we too have not always been attentive to this distinction
when a case did not implicate the issue. See, e. g., Brendlin
v. California, 551 U. S. 249, 254 (2007). But each type of
seizure enjoys a separate common law pedigree that gives
rise to a separate rule. See Hodari D., 499 U. S., at 624–
625; A. Cornelius, The Law of Search and Seizure § 47,
pp. 163–164 (2d ed. 1930) (contrasting actual control with
“constructive detention” by touching).
Unlike a seizure by force, a seizure by acquisition of con-
trol involves either voluntary submission to a show of
authority or the termination of freedom of movement.
A prime example of the latter comes from Brower, where
the police seized a driver when he crashed into their road-
block. 489 U. S., at 598–599; see also, e. g., Scott v. Harris,
550 U. S. 372, 385 (2007) (ramming car off road); Williams
v. Jones, Cas. t. Hard. 299, 301, 95 Eng. Rep. 193, 194
(K. B. 1736) (locking person in room). Under the common
law rules of arrest, actual control is a necessary element
for this type of seizure. See Wilgus, Arrest Without a
Warrant, 22 Mich. L. Rev. 541, 553 (1924). Such a seizure
requires that “a person be stopped by the very instrumental-
ity set in motion or put in place in order to achieve that
result.” Brower, 489 U. S., at 599. But that requirement
of control or submission never extended to seizures by force.
See, e. g., Sandon, El. Bl. & El., at 940–941, 120 Eng. Rep.,
at 760.
As common law courts recognized, any such requirement
of control would be diffcult to apply in cases involving the
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application of force. See supra, at 314. At the most basic
le
vel, it will often be unclear when an offcer succeeds in
gaining control over a struggling suspect. Courts will puz-
zle over whether an offcer exercises control when he grabs
a suspect, when he tackles him, or only when he slaps on the
cuffs. Neither the offcers nor the dissent explains how long
the control must be maintained—only for a moment, into the
squad car, or all the way to the station house. To cite an-
other example, counsel for the offcers speculated that the
shooting would have been a seizure if Torres stopped “maybe
50 feet” or “half a block” from the scene of the shooting to
allow the offcers to promptly acquire control. Tr. of Oral
Arg. 45. None of this squares with our recognition that “ `[a]
seizure is a single act, and not a continuous fact.' ” Hodari
D., 499 U. S., at 625 (quoting Thompson v. Whitman, 18 Wall.
457, 471 (1874)). For centuries, the common law rule has
avoided such line-drawing problems by clearly fxing the mo-
ment of the seizure.
IV
The dissent sees things differently. It insists that the
term “seizure” has always entailed a taking of possession,
whether the offcer is seizing a person, a ship, or a promis-
sory note. See post, at 330–331. But the facts of the cases
and the language of the opinions confrm that the concept of
possession included the “constructive detention” of persons
“never actually brought within the physical control of the
party making an arrest.” Wilgus, 22 Mich. L. Rev., at 556
(emphasis deleted); see, e. g., Nicholl, 2 Y. & J., at 404, 148
Eng. Rep., at 976 (explaining that the “slightest touch” can
constitute “custody”); Anonymus, 1 Vent., at 306, 86 Eng.
Rep., at 197 (describing a touch as a “taking ” of a person).
Even the dissent acknowledges that a touch can establish a
form of constructive possession. See post, at 344.
The dissent says that “common law courts never contem-
plated” that the touching itself could effect a seizure. Post,
at 342. But one need only look at the many decisions adopt-
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ing that defnition of arrest. See supra, at 313–315, 319–320.
The
dissent can offer no case expressing doubt about the rule
that the touching constitutes an arrest, much less refusing
to apply that rule in any context—felon or debtor. And we
have, as noted, defnitively stated that “the arrest of a person
is quintessentially a seizure.” Payton, 445 U. S., at 585 (in-
ternal quotation marks omitted). The dissent's attempt to
ignore arrests it appraises as “unfortunate” or “peculiar,”
post, at 339, 340, pays insuffcient regard to the complete
history underlying the Fourth Amendment.
The dissent argues that we advance a “schizophrenic read-
ing of the word `seizure.' ” Post, at 332. But our cases dem-
onstrate the unremarkable proposition that the nature of a
seizure can depend on the nature of the object being seized.
It is not surprising that the concept of constructive detention
or the mere-touch rule developed in the context of seizures
of a person—capable of feeing and with an interest in doing
so—rather than seizures of “houses, papers, and effects.”
The dissent also criticizes us for “posit[ing] penumbras” of
“privacy” and “personal security” in our analysis of the
Fourth Amendment. Post, at 348. But the text of the
Fourth Amendment expressly guarantees the “right of the
people to be secure in their persons,” and our earliest prece-
dents recognized privacy as the “essence” of the Amend-
ment—not some penumbral emanation. Boyd, 116 U. S., at
630. We have relied on that understanding in construing
the meaning of the Amendment. See, e. g., Riley v. Califor-
nia, 573 U. S. 373, 403 (2014).
The dissent speculates that the real reason for today's de-
cision is an “impulse” to provide relief to Torres, post, at 348,
or maybe a desire “to make life easier for ourselves,” post,
at 346. It may even be, says the dissent, that the Court “at
least hopes to be seen as trying ” to achieve particular goals.
Post, at 349. There is no call for such surmise. At the end
of the day we simply agree with the analysis of the common
law of arrest and its relation to the Fourth Amendment set
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forth thirty years ago by Justice Scalia, joined by six of his
col
leagues, rather than the competing view urged by the dis-
sent today.
***
We hold that the application of physical force to the body
of a person with intent to restrain is a seizure even if the
person does not submit and is not subdued. Of course, a
seizure is just the frst step in the analysis. The Fourth
Amendment does not forbid all or even most seizures—only
unreasonable ones. All we decide today is that the offcers
seized Torres by shooting her with intent to restrain her
movement. We leave open on remand any questions regard-
ing the reasonableness of the seizure, the damages caused
by the seizure, and the offcers' entitlement to qualifed
immunity.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Barrett took no part in the consideration or
decision of this case.
Justice Gorsuch, with whom Justice Thomas and
Justice Alito join, dissenting.
The majority holds that a criminal suspect can be simulta-
neously seized and roaming at large. On the majority's ac-
count, a Fourth Amendment “seizure” takes place whenever
an offcer “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 confate a seizure with
its attempt and confuse an arrest with a battery. In the
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process, too, the majority must disregard the Constitution's
or
iginal and ordinary meaning, dispense with our conven-
tional 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 centu-
ries flled with litigation over the Fourth Amendment's
meaning, this Court has never before adopted the majority's
defnition of a “seizure.” Neither the Constitution nor com-
mon sense can sustain it.
I
A
This case began when two Albuquerque police offcers ap-
proached Roxanne Torres on foot. The offcers thought Ms.
Torres was the subject of an arrest warrant and suspected
of involvement in murder and drug traffcking. As it turned
out, they had the wrong person; Ms. Torres was the subject
of a different arrest warrant. As she saw the offcers walk
toward her, Ms. Torres responded by getting into her car
and hitting the gas. At the time, Ms. Torres admits, she
was “tripping out bad” on methamphetamine. Fearing the
oncoming car was about to hit them, the offcers fred their
duty weapons, and two bullets struck Ms. Torres while oth-
ers hit her car.
None of that stopped Ms. Torres. She continued driv-
ing—over a curb, across some landscaping, and into a
street, eventually colliding with another vehicle. Abandon-
ing her car, she promptly stole a different one parked nearby.
Ms. Torres then drove over 75 miles to another city. When
she eventually sought medical treatment, doctors decided
she needed to be airlifted back to Albuquerque for more in-
tensive care. Only at that point, a day after her encounter
with the offcers, was Ms. Torres fnally identifed and ar-
rested. Ultimately, she pleaded no contest to assault on a

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police offcer, aggravated feeing from an offcer, and the un-
lawfu
l taking of a motor vehicle.
More than two years later, Ms. Torres sued the offcers for
damages in federal court under 42 U. S. C. § 1983. She al-
leged that they had violated the Fourth Amendment by
unreasonably “seizing ” her. After discovery, the offcers
moved for summary judgment. The district court granted
the motion, and the court of appeals affrmed. Individuals
like Ms. Torres are free to sue offcers under New Mexico
state law for assault or battery. They may also sue offcers
under the Fourteenth Amendment for conduct that “shocks
the conscience.” But under longstanding circuit precedent,
the courts explained, a Fourth Amendment “seizure” occurs
only when the government obtains “physical control” over a
person or object. Because Ms. Torres “managed to elude
the police for at least a full day after being shot,” the courts
reasoned, the offcers' bullets had not “seized” her; any sei-
zure took place only when she was fnally arrested back in
Albuquerque the following day. Torres v. Madrid, 769 Fed.
Appx. 654, 657 (CA10 2019).
B
Now before us, Ms. Torres argues that this Court's deci-
sion in California v. Hodari D., 499 U. S. 621 (1991), “com-
pel[s] reversal.” Brief for Petitioner 25. As she reads it,
Hodari D. held that a Fourth Amendment seizure takes place
whenever an offcer shoots or even “mere[ly] touch[es]”
an individual with the intent to restrain. Brief for Peti-
tioner 15.
Whatever one thinks of Ms. Torres's argument, one thing
is certain: Hodari D. has generated considerable confusion.
There, offcers chased a suspect on foot. 499 U. S., at 623.
Later, the suspect argued that he was “seized” for purposes
of the Fourth Amendment the moment the chase began.
See id., at 625. Though he fed, the suspect argued, a “rea-
sonable person” would not have felt at liberty given the off-

328 TORRES
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cers' “show of authority,” so a Fourth Amendment seizure
had
occurred. Id., at 627–628.
The Court rejected this argument. In doing so, it ex-
plained that, “[f]rom the time of the founding to the present,
the word `seizure' has meant a `taking possession.' ” Id., at
624. Because the defendant did not submit to the offcers'
show of authority, the Court reasoned, the offcers' conduct
amounted at most to an attempted seizure. See id., at 626,
and n. 2. And “neither usage nor common-law tradition
makes an attempted seizure a seizure.” Ibid.
At the same time, and as Ms. Torres emphasizes, the Court
didn't end its discussion there. It proceeded to imagine a
different and hypothetical case, one in which the offcers not
only chased the suspect but also “appl[ied] physical force” to
him. In these circumstances, the Court suggested, “merely
touching ” a suspect, even when offcers fail to gain posses-
sion, might qualify as a seizure. Id., at 624–625.
Unsurprisingly, these dueling passages in Hodari D. led to
a circuit split. For the frst time, some lower courts began
holding that a “mere touch” constitutes a Fourth Amend-
ment “seizure.” Others, however, continued to adhere to
the view, taken “[f]rom the time of the founding to the pres-
ent,” that the word “seizure” means “taking possession.”
Id., at 624 (internal quotation marks omitted). We took this
case to sort out the confusion.
II
As an initial matter, Ms. Torres is mistaken that Hodari
D.'s discussion of “mere touch” seizures compels a ruling in
her favor. Under the doctrine of stare decisis, we normally
afford prior holdings of this Court considerable respect.
But, in the course of issuing their holdings, judges sometimes
include a “witty opening paragraph, the background informa-
tion on how the law developed,” or “digressions speculating
on how similar hypothetical cases might be resolved.” B.
Garner et al., The Law of Judicial Precedent 44 (2016). Such
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asides are dicta. The label is hardly an epithet: “Dicta may
afford
litigants the beneft of a fuller understanding of the
court's decisional path or related areas of concern.” Id., at
65. Dicta can also “be a source of advice to successors.”
Ibid. But whatever utility it may have, dicta cannot bind
future courts.
This ancient rule serves important purposes. A passage
unnecessary to the outcome may not be fully considered.
Parties with little at stake in a hypothetical question may
afford it little or no adversarial testing. And, of course, fed-
eral courts possess no authority to issue rulings beyond the
cases and controversies before them. If the respect we af-
ford past holdings under the doctrine of stare decisis may be
justifed in part as an act of judicial humility, respecting that
doctrine's limits must be too. Fewer things could be less
humble than insisting our every passing surmise constitutes
a rule forever binding a Nation of over 300 million people.
No judge can see around every corner, predict the future,
or fairly resolve matters not at issue. See, e. g., Cohens v.
Virginia, 6 Wheat. 264, 399–400 (1821); Central Va. Commu-
nity College v. Katz, 546 U. S. 356, 363 (2006).
On any account, the passage in Hodari D. Ms. Torres seeks
to invoke was dicta. The only question presented in that
case was whether offcers seize a defendant by a show
of authority without touching him. The Court answered
that questi on i n the negative. The separate questi on
whether a “mere touch” also qualifes as a seizure was
not presented by facts of the case. No party briefed
the issue. And the opinion offered the matter only shallow
consideration, resting on just three sources: A state court
opinion from the 1860s, a “comment” in the 1934 Restate-
ment of Torts, and a 1930s legal treatise. See 499 U. S., at
624–625.
Already some lower courts, including those below, have
recognized that Hodari D.'s aside does not constitute a bind-
ing holding. See Brooks v. Gaenzle, 614 F. 3d 1213, 1220–

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1221 (CA10 2010); Henson v. United States, 55 A. 3d 859,
864
–865 (D. C. 2012). Today's majority seems to accept the
point too. It acknowledges that Hodari D. “principally con-
cerned a show of authority.” Ante, at 312. And it says it
intends to rule for Ms. Torres “independently” of Hodari D.
Ante, at 312.
III
Seeking to carry that burden, the majority picks up where
Hodari D.'s dicta left off. It contends that an offcer “seizes”
a person by merely touching him with an “intent to re-
strain.” Ante, at 317. We are told that a touch is a seizure
even if the suspect never stops or slows down; it's a seizure
even if he evades capture. In all the years before Hodari
D.'s dicta, this conclusion would have sounded more than a
little improbable to most lawyers and judges—as it should
still today. A mere touch may be a battery. It may even
be part of an attempted seizure. But the Fourth Amend-
ment's text, its history, and our precedent all confrm that
“seizing ” something doesn't mean touching it; it means tak-
ing possession.
A
Start with the text. The Fourth Amendment guarantees
that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” As at least part of Ho-
dari D. recognized, “[f]rom the time of the founding to the
present,” the key term here—“seizure”—has always meant
“ `taking possession.' ” 499 U. S., at 624.
Countless contemporary dictionaries defne a “seizure” or
the act of “seizing ” in terms of possession.
1
This Court's
1
N. Bailey, Universal Etymological English Dictionary (22 ed. 1770) (To
seize is “to take into Custody or Possession by Force, or wrongfully; to
distrain, to attack, to lay hold of, or catch”; a seizure is a “seizing, taking
into Custody”); T. Dyche & W. Pardon, A New General English Dictionary
(14th ed. 1771) (To seize is “to lay or take hold of violently or at unawares,
wrongfully, or by force”; a seizing or seizure is “a taking possession of any

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early cases refect the same understanding. Just sixteen
years
after the Fourth Amendment's adoption, Congress
passed a statute regulating the “seizure” of ships. See The
Josefa Segunda, 10 Wheat. 312, 322 (1825). This Court in-
terpreted the term to require “an open, visible possession
claimed,” so that those previously possessing the ship “un-
derstand that they are dispossessed, and that they are no
longer at liberty to exercise any dominion on board of the
ship.” Id., at 325. Nor did the Court's view change over
time. In Pelham v. Rose, 9 Wall. 103, 106 (1870), the Court
likewise explained that “[t]o effect [a] seizure” of something,
one needed “to take” the thing “into his actual custody and
control.” Id., at 107.
Today's majority disputes none of this. It accepts that
a seizure of the inanimate objects mentioned in the Fourth
Amendment (houses, papers, and effects) requires possession.
Ante, at 312. And when it comes to persons, the majority
agrees (as Hodari D. held) that a seizure in response to a “show
of authority” takes place if and when the suspect submits to
an offcer's possession. Ante, at 322. The majority insists
that a different rule should apply only in cases where an
offcer “touches” the suspect. Here—and here alone—pos-
session is not required. So, under the majority's logic, we
are quite literally asked to believe the offcers in this case
“seized” Ms. Torres's person, but not her car, when they shot
both and both continued speeding down the highway.
thing by violent, force, &c”); 2 S. Johnson, A Dictionary of the English
Language (6th ed. 1785) (To seize is “1. To take hold of; to gripe; to grasp.”
“2. To take possession of by force.” “3. To take possession of; to lay hold
on; to invade suddenly.” “4. To take forcible possession of by law.” “5. To
make possessed; to put in possession of.” A seizure is “1. The act of seiz-
ing.” “2. The thing seized.” “3. The act of taking forcible possession.” “4.
Gripe; possession.” “5. Catch”); 2 J. Ash, The New and Complete Diction-
ary of the English Language (2d ed. 1795) (To seize is “[t]o grasp, to lay
hold on, to fasten on, to take possession of, to take possession by law”; a
seizure is “[t]he act of seizing, a gripe, a catch; the act of taking possession
by force of law; the thing seized, the thing possessed”).
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The majority's need to resort to such a schizophrenic read-
i
ng of the word “seizure” should be a signal that something
has gone seriously wrong. The Fourth Amendment's Search
and Seizure Clause uses the word “seizures” once in connec-
tion with four objects (persons, houses, papers, and effects).
The text thus suggests parity, not disparity, in meaning. It
is close to canon that when a provision uses the same word
multiple times, courts must give it the same meaning each
time. Ratzlaf v. United States, 510 U. S. 135, 143 (1994).
And it is canonical that courts cannot give a single word
different meanings depending on the happenstance of “which
object it is modifying.” Reno v. Bossier Parish School Bd.,
528 U. S. 320, 329 (2000) (“[W]e refuse to adopt a construc-
tion that would attribute different meanings to the same
phrase in the same sentence, depending on which object it is
modifying ”). To “[a]scrib[e] various meanings” to a single
word, we have observed, is to “render meaning so malleable”
that written laws risk “becom[ing] susceptible to individu-
ated interpretation.” Ratzlaf, 510 U. S., at 143 (internal
quotation marks omitted). The majority's conclusion that a
single use of the word “seizures” bears two different mean-
ings at the same time—indeed, in this very case—is truly
novel. And when it comes to construing the Constitution,
that kind of innovation is no virtue.
If more textual evidence were needed, the Fourth Amend-
ment's neighboring Warrant Clause would seem to provide
it. That Clause states that warrants must describe “the
persons or things to be seized.” Once more, the Amend-
ment uses the same verb—“seized”—for both persons and
objects. Once more, it suggests parity, not some hidden di-
vergence between people and their possessions. Nor does
anyone dispute that a warrant for the “seizure” of a person
means a warrant authorizing offcers to take that person into
their possession.
Against all these adverse textual clues, the majority offers
little in reply. It admits that its interpretation defes this
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Court's teachings in Ratzlaf and Reno by ascribing different
meani
ngs to the word “seizure” depending on “the object
being seized.” Ante, at 324. It says only that we should
overlook the problem because “our cases” in the Fourth
Amendment context compel this remarkable construction.
Ibid. But it is unclear what cases the majority might have
in mind for it cites none.
Instead, the majority proceeds to reason that the word
“seizure” must carry a different meaning for persons and
objects because persons alone are “capable of feeing ” and
have “an interest in doing so.” Ibid. But that reasoning
faces trouble even from Hodari D., which explained that “[a]
ship still feeing, even though under attack, would not be
considered to have been seized as a war prize.” 499 U. S.,
at 624. Of course, as the majority observes, persons alone
can possess “an interest” in feeing. But, as Hodari D.'s ex-
ample shows, they can have as much (or more) interest in
feeing to prevent the seizure of their possessions as they do
their persons. Even today, a suspect driving a car loaded
with illegal drugs may be more interested in feeing to avoid
the loss of her valuable cargo than to prevent her own deten-
tion. Yet the majority offers no reasoned explanation why
the meaning of the word “seizure” changes when offcers hit
the suspect and when they hit her drugs and car as all three
speed away.
Unable to muster any precedent or sound reason for its
reading, the majority fnishes its textual analysis with a se-
lective snippet from Webster's Dictionary and a hypothetical
about a purse snatching. The majority notes that Webster
equated a seizure with “ `the act of taking by warrant' ”
or “ `laying hold on suddenly.' ” Ante, at 312. But Webster
used the warrant defnition to describe “the seizure of con-
traband goods”—a seizure the majority agrees requires pos-
session. Meanwhile, the phrase “laying hold on” a person
connotes physical possession, as a look at the dictionary's
entire defnition demonstrates. A “seizure,” Webster con-
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tinued, is the “act of taking possession by force,” the “act
of
taking by warrant,” “possession,” and “a catching.”
2
Read in full, Webster thus lends no support to the majori-
ty's view.
The purse hypothetical, borrowed from Hodari D.'s dicta,
turns out to be even less illuminating. It supposes that “an
ordinary user of the English language could remark: `She
seized the purse-snatcher, but he broke out of her grasp.' ”
Ante, at 312 (quoting Hodari D., 499 U. S., at 626). But what
does that prove? The hypothetical contemplates a woman
who takes possession of the purse-snatcher, establishing a
“grasp” for him to “break out of.” One doesn't “break out
of ” a mere touch.
Really, the majority's answer to the Constitution's text is
to ignore it. The majority stands mute before the consensus
among founding-era dictionaries, this Court's early cases in-
terpreting the word “seizure,” and the Warrant Clause. It
admits its interpretation spurns the canonical interpretive
principle that a single word in a legal text does not change
its meaning depending on what object it modifes. All we're
offered is a curated snippet and an unhelpful hypothetical.
Ultimately, it's hard not to wonder whether the majority
says so little about the Constitution's terms because so little
can be said that might support its ruling.
2
2 N. Webster, An American Dictionary of the English Language 67
(1828) (To seize is “1. To fall or rush upon suddenly and lay hold on; or to
gripe or grasp suddenly.” “2. To take possession by force, with or without
right.” “3. To invade suddenly; to take hold of; to come upon suddenly; as,
a fever seizes a patient.” “4. To take possession by virtue of a warrant or
legal authority.” To be seized is to be “[s]uddenly caught or grasped;
taken by force; invaded suddenly; taken possession of; fastened with a
cord; having possession.” A seizure is “1. The act of seizing; the act of
laying hold on suddenly; as the seizure of a thief. 2. The act of taking
possession by force; as the seizure of lands or goods; the seizure of a town
by an enemy; the seizure of a throne by an usurper. 3. The act of taking
by warrant; as the seizure of contraband goods. 4. The thing taken or
seized.” “5. Gripe; grasp; possession.” “6. Catch; a catching ”).
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B
Rather
than focus on text, the majority turns quickly to
history. At common law, it insists, a “linkage” existed be-
tween the “seizure” of a person and the concept of an “ar-
rest.” Ante, at 312. Thus, the majority contends, we must
examine how the common law defned that term. But fol-
lowing the majority down this path only leads to another
dead end. Unsurprisingly, an “arrest” at common law ordi-
narily required possession too.
1
Consider what some of our usual common law guides say
on the subject. Blackstone defned “an arrest” in the crimi-
nal context as “the apprehending or restraining of one's per-
son, in order to be forthcoming to answer an alleged or sus-
pected crime.” 4 Commentaries on the Laws of England
286 (1769). Hale and Hawkins both equated an “arrest”
with “apprehending,” “taking,” and “detain[ing]” a person.
See 1 M. Hale, Pleas of the Crown 89, 93–94 (5th ed. 1716);
2 W. Hawkins, Pleas of the Crown 74–75, 77, 80–81, 86 (3d
ed. 1739). And Hawkins stated that an arrest required the
offcer to “actually have” the suspect “in his Custody.” Id.,
at 129. Any number of historical dictionaries attest to a
similar understanding—defning an “arrest” as a “stop,” a
“taking of a person,” and the act “by which a man becomes
a prisoner.”
3
3
See, e. g., Bailey, Universal Etymological English Dictionary (To arrest
is “to stop or stay”; an arrest (in the legal sense) is “a Legal taking of a
Person, and restraining him from Liberty”); Dyche & Pardon, A New Gen-
eral English Dictionary (An arrest is “the stopping or detaining a person,
by a legal process”); 1 Johnson, A Dictionary of the English Language (“1.
In law. A stop or stay; as, a man apprehended for debt, is said to be
arrested.” “An arrest is a certain restraint of a man's person, depriving
him of his own will, and binding it to become obedient to the will of the
law, and may be called the beginning of imprisonment.” “2. Any caption,
seizure of the person.” “3. A stop” (emphasis deleted)); 1 Ash, The New
and Complete Dictionary of the English Language (To arrest is “[t]o seize
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Common law causes of action point to the same common-
sense
conclusion. During the founding era, an individual
who was unlawfully arrested could seek redress through the
tort of false imprisonment. See 3 W. Blackstone, Commen-
taries on the Laws of England 127 (1768); see also Payton v.
New York, 445 U. S. 573, 592 (1980); Wallace v. Kato, 549
U. S. 384, 388–389 (2007) (describing “false arrest and false
imprisonment” as the “closest analogy” to an arrest without
probable cause). That cause of action aimed to remedy “the
violation of the right of personal liberty,” 3 Blackstone,
supra, at 127, which was “the power of loco-motion, of chang-
ing situation, or removing one's person to whatsoever place
one's own inclination may direct,” 1 W. Blackstone, Commen-
taries on the Laws of England 130 (1765). Thus, false
imprisonment—the violation of the right to move where one
desired—required proof of “[t]he detention of the person”
and “[t]he unlawfulness of such detention.” 3 Blackstone,
supra, at 127. That detention could occur “in a gaol, house,
stocks, or in the street,” but it occurred only if a person was
“under the custody of another.” 1 E. East, Pleas of the
Crown 428 (1806) (emphasis added).
Much the same held true in another related feld. At com-
mon law, an offcer could be held criminally liable for allow-
ing an individual to escape after being arrested. And to
prove the existence of an arrest in an “Indictment for an
Escape,” a prosecutor had to “expressly shew” that “the
Party was actually in the Defendant's Custody for a Crime,
Ac ti on, or Commitment for it. ” 2 Hawk i ns, sup ra, at
132 (emphasis added). In other words, to demonstrate an
arrest, a prosecutor had to prove the suspect had been “a
Prisoner in [the offcer's] Custody.” 1 Hale, supra, at 112
(emphasis added). Here, too, an arrest required possession.
a man for debt, to apprehend by virtue of a writ from any court of justice,
to stop, to hinder”; an arrest is “[t]he act of seizing on a man's person for
debt, the execution of a writ from any court of justice by which a man
becomes a prisoner, a stop, a hindrance”).

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Once more, the majority's primary answer to all this coun-
tervai
ling evidence is to ignore it. And once more, the ma-
jority's own sources do more to hurt than help its cause.
Lifting a line from Simpson v. Hill, 1 Esp. 431, 170 Eng.
Rep. 409 (N. P. 1795), the majority suggests that the tort of
false imprisonment at common law required no more than a
“tapping on the shoulder.” Ante, at 320 (citing 1 Esp., at
431–432, 170 Eng. Rep., at 409). But Simpson could not
have stated the possession requirement more plainly:
“[W]ithout any taking possession of the person,” there “is
not, by law, a false imprisonment.” Id., at 432, 170 Eng.
Rep., at 409 (emphasis added). And the court proceeded to
reject the plaintiff 's claim for false imprisonment because the
“constable did never take her into custody.” Ibid. (empha-
sis added). The majority offers no case fnding the elements
of false imprisonment satisfed by the mere touch of a fee-
ing person.
What remains of the majority's response follows the same
course. The majority asserts that claims for escape only re-
quired proof that the offcer touched a suspect. Ante, at 320.
But to prove its point, the majority quotes a sentence from
Hale stating that no liability for escape exists “ `if the felon
were not once in the hands of an offcer.' ” Ibid. (quoting 2
Pleas of the Crown 93 (1736)). And as Hale proceeded to
make plain, a felon “in the hands of an offcer” was another
way of saying the offcer had “apprehended” or “taken” the
felon into his “custody.” See id., at 89, 93–94 (5th ed. 1716).
Ultimately, the majority seeks to invoke Samuel Johnson's
dictionary and Payton, 445 U. S., at 585, to confrm only the
anodyne point that some sort of “linkage” existed at common
law between the concepts of “arrests” and “seizures.” Ante,
at 312. Yet, even here it turns out there is more to the story.
The majority neglects to mention that Johnson proceeded to
defne an “arrest” as a “caption” of the person, “a stop or
stay,” a “restraint of a man's person, depriving him of his
own will,” and “the beginning of imprisonment.” 1 S. John-

338 TORRES
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son, A Dictionary of the English Language (6th ed. 1785).
“
To arrest,” Johnson said, was “[t]o seize,” “to detain by
power,” “[t]o withhold; to hinder,” and “[t]o stop motion.”
Ib i d. Meanwh ile, the sentence frag ment the major ity
quotes from Payton turns out to have originated in Justice
Powell's concurrence in United States v. Watson, 423 U. S.
411, 428 (1976). And looking to that sentence in full, it is
plain Justice Powell, too, understood an arrest not as a touch-
ing, but as “the taking hold of one's person.” Ibid. Thus,
even the majority's best sources only wind up pointing us
back to the traditional possession rule.
2
Unable to identify anything helpful in the main current of
the common law, the majority is forced to retreat to an ob-
scure eddy. Starting from Hodari D.'s three references to
“mere touch” arrests, the majority traces these authorities
back to their English origins. The tale that unfolds is a
curious one.
Before bankruptcy reforms in the 19th century, creditors
seeking to induce repayment of their loans could employ bai-
liffs to civilly arrest delinquent debtors and haul them off to
debtors prison. See Cohen, The History of Imprisonment
for Debt and Its Relation to the Development of Discharge
in Bankruptcy, 3 J. Legal Hist. 153, 154–155 (1982). But the
common law also offered debtors some tools to avoid or delay
that fate. Relevant here, the common law treated the home
as a “castle of defence and asylum” so no bailiff could break
into a debtor's home to effect a civil arrest. 3 Blackstone,
supra, at 288; see also Treiman, Escaping the Creditor in the
Middle Ages, 43 L. Q. Rev. 230, 233 (1927). Over time, the
practice of “keeping house” became an increasingly popular
way for debtors to evade the bailiff. Id., at 234. Naturally,
too, creditors railed against this “notorious” practice. See
ibid. And eventually Parliament responded to their clamor.
The English bankruptcy statutes of 1542 and 1570 imposed
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serious penalties on debtors who “kept house” to avoid im-
pr
isonment. Cohen, supra, at 157.
It was seemingly against this backdrop that the strange
cases Hodari D.'s dicta briefy alluded to and the majority
has now dug up began to appear. Under their terms, a bail-
iff who could manage to touch a person hiding in his home,
often through an open window or door, was deemed to have
effected a civil “arrest.” See Genner v. Sparks, 6 Mod. 173,
87 Eng. Rep. 928 (K. B. 1704). And because this mere touch
was deemed an “arrest,” the bailiff was then permitted by
law to proceed to “br[eak] the house . . . to seize upon” the
person and render him to prison. Ibid., 87 Eng. Rep., at
929. Of course it was farcical to call a tap through an open
window an “arrest.” But it proved a useful farce, at least
for creditors.
One of the majority's lead cases, Sandon v. Jervis, El.
Bl. & El. 935, 120 Eng. Rep. 758 (K. B. 1858), illustrates the
absurdity of it all. There, a bailiff tried and failed “on sev-
eral occasions” to arrest a debtor. Id., at 936, 120 Eng. Rep.,
at 758. Eventually, the bailiff spotted an open window on
“an upper story,” so he ordered an assistant to fetch a ladder.
Ibid. But the debtor and his daughter noticed the ploy and
“ran to the window,” slamming it closed. Ibid. Unfortu-
nately, in the excitement a window pane broke. Seeing the
opportunity, the bailiff 's assistant, while perched atop the
ladder, thrust his hand through the opening and managed
to touch the debtor. Id., at 936–937, 120 Eng. Rep., at 758.
According to the court, this “arrest” was suffcient to justify
the bailiff 's later forcible entry into the home. Id., at 946–
948, 120 Eng. Rep., at 762–763.
By everyone's account, however, the farce extended only
so far. Yes, the mere-touch arrest was a feature of civil
bankruptcy practice for an unfortunate period. But the ma-
jority has not identifed a single founding-era case extending
the mere-touch arrest rule to the criminal context. The ma-
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reference only a case about a debt-collection arrest. See
an
te, at 319 (citing 1 J. Backus, A Digest of Laws Relating
to the Offces and Duties of Sheriff, Coroner and Constable
115–116, n. (c) (1812) (citing Genner v. Sparks, 6 Mod. 173, 87
Eng. Rep. 928 (K. B. 1704)), and 1 R. Burn, The Justice of
the Peace 275 (28th ed. 1837) (citing the same)). The major-
ity nods to dicta from an 1854 Delaware state trial court, but
that came long after the founding and the majority does
not explain how it sheds light on the Fourth Amendment's
original meaning. See ante, at 319 (citing State v. Town-
send, 5 Del. 487, 488)). And every remaining early Ameri-
can case the majority cites for its “mere touch” rule—
from the founding through the Civil War—involved only civil
debt-collection arrests. See ante, at 311 (citing Whithead
v. Keyes, 85 Mass. 495 (1862)); ante, at 314 (citing United
States v. Benner, 24 F. Cas. 1084 (No. 14,568) (CC ED
Pa. 1830)); ante, at 314 (citing Butler v. Washburn, 25 N. H.
251 (1852) (tax collection)). The same goes for the majori-
ty's primary English authorities. See ante, at 314 (citing
Nicholl v. Darley, 2 Y. & J. 399, 400, 148 Eng. Rep. 974
(Exch. 1828); Sandon, El. Bl. & El., at 940, 120 Eng. Rep.,
at 760)).
So what relevance do these obscure and long-abandoned
civil debt-collection practices have for today's case concern-
ing a criminal arrest and brought under the Fourth Amend-
ment? The answer seems to be not much, for at least
three reasons.
In the frst place, the Amendment speaks of “seizures,” not
“arrests.” To the extent the common law of arrests informs
the Amendment's meaning, we have already seen that an
arrest normally meant taking possession of an arrestee.
Maybe in one peculiar area, and for less than admirable rea-
sons, the common law deviated from this understanding.
But this Court usually presumes that those who wrote the
Constitution used words in their ordinary sense, not in some

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idiosyncratic way. See District of Columbia v. Heller, 554
U
. S. 570, 576 (2008). And today's majority supplies no evi-
dence that anyone during the founding era understood the
Fourth Amendment to adopt the specialized defnition of “ar-
rest” from civil debt-collection practice.
Second, even if we were to hypothesize that people did
understand the Four th Amendment to incorporate th is
quirky rule, what would that tell us? Here, the offcers
tried to arrest Ms. Torres in a parking lot on behalf of the
State for serious crimes, not break into her home on behalf
of the local credit union for missing a payment. So even
if we were willing to suppose that the founding generation
understood the Constitution to incorporate the majority's
civil debt-collection arrest rule, nothing before us suggests
they contemplated, let alone endorsed, injecting it into the
criminal law and overriding settled doctrine equating arrests
with possession.
Finally, even in the civil debt-collection context, the major-
ity cannot point to even a single case suggesting that hitting
a suspect with an object—an arrow, a bullet, a cudgel,
anything—as she fees amounted to an arrest. Instead, the
majority's cases hold only that the “laying of hands” on an
arrestee constituted an arrest. Ante, at 313. Thus, even if
the Fourth Amendment did transpose the “mere touch” rule
from the context of civil arrests into the criminal arena, it
still would not reach this case.
How does the majority respond? Again, it does little
more than disregard the difficulties. The majority says
there is “no reason to suspect” the common law defned crim-
inal arrests of felons “any differently” than civil arrests of
debtors. Ante, at 321, 319. But the majority skips over all
the evidence canvassed above showing that a criminal arrest
required possession, not a mere touch. See Part III–B–1,
supra. It sails past its failure to identify any case holding
that a mere touch qualifed as a criminal arrest. It ignores

342 TORRES
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the fact Blackstone defned criminal and civil arrests differ-
ently
.
4
And it claims to fnd support in Hawkins's statement
that an offcer could break into a house to capture an arrestee
who escaped after being “ `lawfully arrested for any Cause.' ”
Ante, at 321 (quoting 2 Pleas of the Crown 87 (1721)). Yet,
the question before us isn't what an offcer might do after
making an arrest; it's what constitutes an arrest in the frst
place.
Rather than confront shortcomings like these, the majority
asks us to glide past them. It suggests that importing the
mere-touch rule into the criminal context is permissible be-
cause “no common law case” had occasion to reject that idea
expressly. See ante, at 323–324. But this gets things back-
wards. Today, for the frst time, the majority seeks to
equate seizures and criminal arrests with mere touches, at-
tempted seizures, and batteries. It is for the majority to
show the Fourth Amendment commands this result. No
amount of rhetorical maneuvering can obscure how fat it has
fallen: Even its own authorities do more to undermine than
support its thesis. If common law courts never contem-
plated the majority's odd defnition of a criminal arrest—and
this Court didn't either for more than two centuries—that
can only be further proof of its implausibility.
The majority asks us to glide past another problem too.
It acknowledges that its debt-collection cases required a
“laying on of hands” to complete an arrest. But it says
we should overlook that rule as an accident of antiquity.
“Touchings” by “frearm,” we are told, were unknown to
4
The majority cites only Blackstone's defnition of a civil arrest, which
required a “corporal seising or touching the defendant's body.” Ante,
at 314 (quoting 3 W. Blackstone, Commentaries on the Laws of England
288 (1768)). But fipping from Blackstone's third volume (discussing “pri-
vate wrongs”) to his fourth volume (discussing “public wrongs”) reveals—
as we have already seen but the majority fails to acknowledge—that
Blackstone equated a criminal arrest with “apprehending or restraining
. . . one's person, in order to be forthcoming to answer an alleged or sus-
pected crime.” See supra, at 335.
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“founding-era courts,” and no “offcer used a gun to appre-
hend
a suspect” before 1850. Ante, at 316. Never mind
the shot heard round the world in 1775 and the adoption of
the Second Amendment. Never mind that as early as
1592, when a bailiff “feared resistance” and thus “brought
with him” a gun “to arrest” someone, a common law court
deemed it lawful because “[t]he sheriff or any of his ministers
may for the better execution of justice carry with them offen-
sive or defensive weapons.” Seint John's Case, 5 Co. Rep.
71b, 77 Eng. Rep. 162, 162–163 (K. B. 1592). Never mind
that even tax collectors were carrying guns by the 1680s.
E. g., Dickenson v. Watson, Jones, T. 205, 205–206, 84 Eng.
Rep. 1218, 1218–1219 (K. B. 1682). And never mind, too,
that the majority's problem isn't limited to guns. It fails to
cite any case in which a touching by any weapon was deemed
suffcient to effect an arrest. Seemingly, the majority would
have us believe that bailiffs wielding anything but their fsts
were beyond the framers' imagination.
Faced with all these problems, the majority tacks. It
scrambles to locate a case—any case—suggesting that com-
mon law courts considered “touchings” by weapon enough to
effect an arrest in the debt-collection context. Ultimately,
the majority asks us to dwell at length on the Countess of
Rutland's case. In at least that lone instance, the majority
promises, we will fnd bailiffs who arrested a debtor by
touching her with an object (a mace) rather than a laying on
of hands. See ante, at 315 (citing Countess of Rutland's
Case, 6 Co. Rep. 52b, 54a, 77 Eng. Rep. 332 (Star Chamber
1605)). But it turns out the dispute concerned whether a
countess could be civilly arrested at all, not when or how
the arrest was completed. The court had no reason to (and
did not) decide whether the bailiffs accomplished their arrest
when they “shewed her their mace,” “touch[ed]” her with
the mace, or “compelled the coachman to carry” her to jail.
Id., at 54a, 77 Eng. Rep., at 336. And no one questions that
these things together—a show of authority followed by com-
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pelled detention—have always been enough to complete an
arrest.
Not even minor royalty can rescue the majority.
So the majority tacks again. Now it asks us to dispense
with the common law's “laying on of hands” requirement as
an “artifcial” rule. Ante, at 316. Distinguishing between
“touchings” by hand and by weapon, it says, “calls to mind
the unavailing defense of the person who `persistently denied
that he had laid hands upon a priest, for he had only cudg-
elled and kicked him.' ” Ibid. But the quip exposes the
majority's bind. To get where it wishes to go, the majority
not only must rework the rules found in the cases on which
it relies, it must also abandon their rationale. The debt-
collection cases treated the “laying on of hands” as a sign of
possession.
5
Maybe the possession was more “constructive”
or even fctional than “actual.” See ante, at 323. But the
idea was that someone who stood next to a debtor and laid
hands on him could theoretically exercise a degree of control
over his person. Common law courts never said the same
of bailiffs who fred arrows at debtors, shot them with fre-
arms, or cudgeled them as they ran away. Such conduct
might have amounted to a battery, but it was never deemed
suffcient to constitute an arrest. Doubtless that's why
when a tax collector shot a man in the eye with a (supposedly
unavailable) frearm in 1682, the man sued the offcer for
“assault, battery, and wounding ”—not false imprisonment.
See Dickenson, Jones, T., at 205, 84 Eng. Rep., at 1218–
1219.
5
That is why the mere-touch cases often discussed the “corporal posses-
sion of the debtor.” E. g., Sandon v. Jervis, El. Bl. & El. 935, 941–942,
120 Eng. Rep. 758 (K. B. 1858) (Hill, J.). A “corporal” touch was a legal
term of art and was frequently used in the context of determining the
possession of goods. E. g., Jordan v. James, 5 Ohio 88, 98 (1831) (stating
that an owner “may deliver any chattel he sells, symbolically and construc-
tively, as well as by corporal touch”); see also 2 W. Blackstone, Commen-
taries on the Laws 448–449, n. 16 (J. Chitty ed. 1826); Friedman, Formative
Elements in the Law of Sales: The Eighteenth Century, 44 Minn. L. Rev.
411, 445 (1960).

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The majority implores us to study the common law history
of
arrests. But almost immediately, the majority realizes it
cannot fnd what it seeks in the history of criminal arrests.
So it is forced to disinter a long-abandoned mere-touch rule
from civil bankruptcy practice. Then it must import that
rule into the criminal law. And because even that isn't
enough to do the work it wishes done, the majority must
jettison both the laying on of hands requirement and the ra-
tionale that sustained it. All of which leaves us confusing
seizures with their attempts and arrests with batteries.
The common law offers a vast legal library. Like any
other, it must be used thoughtfully. We have no business
wandering about and randomly grabbing volumes off the
shelf, plucking out passages we like, scratching out bits we
don't, all before pasting our own new pastiche into the U. S.
Reports. That does not respect legal history; it rewrites it.
C
If text and history pose challenges for the majority, so do
this Court's precedents. The majority admits (as it must)
that the seizure of an object occurs only through taking pos-
session. Ante, at 311–312. The majority also admits (as it
must) that the seizure of a person through a “show of author-
ity” occurs only if the suspect submits to an offcer's posses-
sion. Ante, at 322. But the majority fails to acknowledge
that this Court has also said the same principle governs the
seizure of persons effected through the use of force.
In Terry v. Ohio, 392 U. S. 1 (1968), the Court explained
that “[o]nly when the offcer, by means of physical force or
show of authority, has in some way restrained the liberty of
a citizen may we conclude that a `seizure' has occurred.”
Id., at 19, n. 16 (emphasis added). The restraint of liberty
Terry referred to was “interference” with a person's “free-
dom of movement.” United States v. Jacobsen, 466 U. S.
109, 113, n. 5 (1984). As the Court put it in Brower v.
County of Inyo, 489 U. S. 593 (1989), a decision issued just
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two years before Hodari D.: “It is clear, in other words, that
a
Fourth Amendment seizure” occurs “only when there is a
governmental termination of freedom of movement through
means intentionally applied.” 489 U. S., at 597 (emphasis
deleted).
Rather than follow these teachings, the majority dispar-
ages them. After highlighting (multiple times) that Justice
Scalia authored Hodari D.'s dicta, the majority turns about
and faults his opinion for the Court in Brower for “improp-
erly eras[ing] the distinction between seizures by control
and seizures by force.” Ante, at 322. The majority contin-
ues on to blame other of our decisions, too, for “hav[ing] not
always been attentive” to this supposedly fundamental dis-
tinction. Ibid. But this Court has not been “[in]attentive”
to a fundamental Fourth Amendment distinction for over
two centuries, let alone sought to “erase” it. In truth, the
majority's “distinction” is a product of its own invention.
This Court has always recognized that how seizures take
place can differ. Some may take place after a show of au-
thority, others by the application of force, still others after a
polite request. But to be a “seizure,” the same result has
always been required: An offcer must acquire possession.
IV
If text, history, and precedent cannot explain today's re-
sult, what can? The majority seems to offer a clue when it
promises its new rule will help us “avoi[d] . . . line-drawing
problems.” Ante, at 323 (internal quotation marks omitted).
Any different standard, the majority worries, would be “dif-
fcult to apply.” Ante, at 322.
But if effciency in judicial administration is the explana-
tion, it is a troubling one. Surely our role as interpreters of
the Constitution isn't to make life easier for ourselves. Cf.
Calabresi & Lawson, The Rule of Law as a Law of Law, 90
Notre Dame L. Rev. 483, 488 (2014). Nor, for that matter,
has the majority even tried to show that the traditional pos-

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347
Gorsuch, J., dissenting
session rule—in use “[f]rom the time of the founding,” Ho-
dar
i D., 499 U. S., at 624—has proven unreasonably diffcult
to administer. Everyone agrees, too, that the possession
rule will continue to govern when it comes to the seizures of
objects and persons through a show of authority. So, rather
than simplify things, the majority's new rule for “mere
touch” seizures promises only to add another layer of com-
plexity to the law.
Even within its feld of operation, the majority's rule
seems destined to underdeliver on its predicted effciencies.
The majority tells us that its new test requires an “objective
intent to restrain.” Ante, at 317. But what qualifes is far
from clear. The majority assures us that a “tap on the
shoulder to get one's attention will rarely exhibit such an
intent.” Ibid. Suppose, though, the circumstances “objec-
tively” indicate that the tap was “intended” to secure a per-
son's attention for a minute, a quarter hour, or longer.
Would that be enough?
Then there's the question what kind of “touching ” will suf-
fce. Imagine that, with an objective intent to detain a sus-
pect, offcers deploy pepper spray that enters a suspect's
lungs as he sprints away. Does the application of the pepper
spray count? Suppose that, intending to capture a feeing
suspect, offcers detonate fash-bang grenades that are so
loud they damage the suspect's eardrum, even though he
manages to run off. Or imagine an offcer shines a laser into
a suspect's eyes to get him to stop, but the suspect is able to
drive away with now-damaged retinas. Are these “touch-
ings”? What about an offcer's bullet that shatters the driv-
er's windshield, a piece of which cuts her as she speeds
away? Maybe the offcer didn't touch the suspect, but he
set in motion a series of events that yielded a touching.
Does that count? While assuring us that its new rule will
prove easy to administer, the majority refuses to confront its
certain complications. Lower courts and law enforcement
won't have that luxury.
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If effciency cannot explain today's decision, what's left?
Maybe
it is an impulse that individuals like Ms. Torres
should be able to sue for damages. Sometimes police shoot-
ings are justifed, but other times they cry out for a remedy.
The majority seems to give voice to this sentiment when it
disparages the traditional possession rule as “artifcial” and
promotes its alternative as more sensitive to “personal secu-
rity” and “new” policing realities. Ante, at 316–317. It
takes pains to explain, too, that its new rule will provide
greater protection for personal “privacy” interests, which
we're told make up the “essence” of the Fourth Amendment.
Ante, at 324 (internal quotation marks omitted).
But tasked only with applying the Constitution's terms,
we have no authority to posit penumbras of “privacy” and
“personal security” and devise whatever rules we think
might best serve the Amendment's “essence.” The Fourth
Amendment allows this Court to protect against specifc gov-
ernmental actions—unreasonable searches and seizures of
persons, houses, papers, and effects—and that is the limit of
our license. Besides, it's hard to see why we should stretch
to invent a new remedy here. Ms. Torres had ready-made
claims for assault and battery under New Mexico law to test
the offcers' actions. See N. M. Stat. Ann § 41–4–12 (2020).
The only reason this case comes before us under § 1983 and
the Fourth Amendment rather than before a New Mexico
court under state tort law seems to be that Ms. Torres (or
her lawyers) missed the State's two-year statutory fling
deadline. See Tr. of Oral Arg. 16–17; Brief for Respondents
20, n. 4. That may be a misfortune for her, but it is hardly
a reason to upend a 230 year-old understanding of our
Constitution.
Nor, if we are honest, does today's decision promise much
help to anyone else. Like Ms. Torres, many seeking to sue
offcers will be able to bring state tort claims. Even for
those whose only recourse is a federal lawsuit, the majority's
new rule seems likely to accomplish little. This Court has
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349
Gorsuch, J., dissenting
already said that a remedy lies under § 1983 and the Four-
teenth
Amendment for police conduct that “shocks the con-
science.” County of Sacramento v. Lewis, 523 U. S. 833,
840, 845–847 (1998). At the same time, qualifed immunity
poses a daunting hurdle for those seeking to recover for less
egregious police behavior. In our own case, Ms. Torres has
yet to clear that bar and still faces it on remand. So, at the
end of it all, the majority's new rule will help only those who
(1) lack a state-law remedy, (2) evade custody, (3) after some
physical contact by the police, (4) where the contact was suf-
fcient to show an objective intent to restrain, (5) and where
the police acted “unreasonably” in light of clearly established
law, (6) but the police conduct was not “conscience shocking.”
With qualifcation heaped on qualifcation, that can describe
only a vanishingly small number of cases.
Even if its holding offers little practical assistance to any-
one, perhaps the majority at least hopes to be seen as trying
to vindicate “personal security” and the “essence” of “pri-
vacy” when it derides the traditional possession rule as “ar-
tifcial.” But an attractive narrative cannot obscure the
hard truth. Not only does the majority's “mere touch” rule
allow a new cause of action in exceedingly few cases (non-
conscience-shocking-but-still-unreasonable batteries in-
tended to result in possession that don't achieve it). It sup-
plies no path to relief for otherwise identical near-misses
(assaults). A feeing suspect briefy touched by pursuing of-
fcers may have a claim. But a suspect who evades a hail of
bullets unscathed, or one who endures a series of fash-bang
grenades untouched, is out of luck. That distinction is no
less “artifcial” than the one the law has recognized for centu-
ries. And the majority's new rule promises such scarce re-
lief that it can hardly claim more sensitivity to “personal se-
curity” than the rule the Constitution has long enshrined.
In the face of these concerns, the majority replies by deny-
ing their relevance. It says there is “no call” to “surmise”
that its decision rests on anything beyond an “analysis of
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the common law of arrest.” Ante, at 324. But there is no
sur
mise about it. The majority itself tells us that its deci-
sion is also justifed by the need to “avoi[d] . . . line-drawing
problems,” protect “personal security,” and advance the
“privacy” interests that form the “essence” of the Fourth
Amendment. Having invoked these sundry considerations,
it's hard to see how the majority might disown them.
***
To rule as it does, the majority must endow the term “sei-
zure” with two different meanings at the same time. It
must disregard the dominant rule of the common law. It
must disparage this Court's existing case law for erasing dis-
tinctions that never existed. It cannot even guarantee that
its new rule will offer great effciencies or meaningfully vin-
dicate the penumbral promises it supposes. Instead, we are
asked to skip from one snippet to another, fnally landing
on a long-abandoned debt-collection practice that must be
reengineered to do the work the majority wishes done. Our
fnal destination confuses a battery for a seizure and an at-
tempted seizure with its completion. All this is miles from
where the standard principles of interpretation lead and just
as far from the Constitution's original meaning. And for
what? A new rule that may seem tempting at frst blush,
but that offers those like Ms. Torres little more than false
hope in the end.
Respectfully, I dissent.
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