Thread by @OrinKerr

Supreme Court rules 5-3 in Torres v. Madrid that “application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” SupremeCourt.gov/opinions/20pdf… #n

An expected result, although a closer vote than I expected, based on the argument. More tweet commentary soon.

A few quick thoughts now. First, this seems like a really narrow ruling. It's always been clear that "application of physical force to the body of a person with intent to restrain" is a seizure when the police succeed in stopping the person, temporarily, and that's most cases.

Torres now adds that this is true even if the person is not subdued, which was suggested in dicta in Hodari D but now becomes a holding. I don't know how often this happens, but now that issue is settled.

Anything touching on the law of police shooting is important. But this seems like a narrow and specific set of facts, and the rule doesn't seem to have many broader implications. So the case seems very narrow in that sense.

If anything, it's noteworthy that so much of the writing is about the common law, and *not* the practical implication that one would have to guess was driving at least some of the Justices: Do victims of police shooting have a potential 4A remedy under 1983 if they don't stop?

Roberts doesn't go into that and Sotomayor doesn't write separately on it, perhaps reflecting the close vote: 5-3. Maybe they don't want to alienate a 5th vote by going into that? Hard to know.

For 4th Amendment nerds, there are some interesting sub-plots.

First, it's surprising to see a 5-3 case for a civil plaintiff with Kavanaugh in the majority and Gorsuch in dissent. I would have guessed the opposite. That's worth watching.

Second, for those of us interested in the subjective/objective question in 4A law, the majority's objective intent test is interesting. There's a subjective test, but you measure subjective intent objectively, the court says.

The Court has used this idea before, but it struck me as really a subjective test, just with a patina of objectivity b/c they thought 4A law is supposed to be objective. More on this issue in my recent article: texaslawreview.org/the-questionab…

Finally, there's lots of interesting stuff about the role of common law in the case, although I'm going to save that part for later: I want to mull it over more before writing on it. But some of the debate was previewed here, FWIW: reason.com/volokh/2020/02…

That's it for now...