Last month, the Supreme Court heard argument in Torres v. Madrid. The case presents the question whether police carry out a “seizure” for Fourth Amendment purposes when they shoot a person in the back but the injured individual still manages to flee. This column will take up two of the issues that each puzzled at least one of the Justices. The first has to do with the difference between touching someone directly with one’s hands, on the one hand, and using one’s hands to touch another person with an inanimate object, on the other. The second is about the distinction between holding and dicta, specifically as applied to the case of California v. Hodari D. A discussion of these two cases will reveal how very flexible the Constitution can be, lending itself to very different interpretations.
In 1991, the Court decided California v. Hodari D. A minor had been running away from the police, and the latter gave chase. During the pursuit, Hodari threw down some illicit drugs that he had been carrying in his pocket. The police picked up the drugs and somehow managed to catch and apprehend Hodari as well. The question in that case was whether the police had seized Hodari when they began chasing him, before tackling him and bringing him under their control. The Court’s answer was that until the officer had tackled Hodari, the former had not seized the latter for Fourth Amendment purposes. This outcome mattered to Hodari because if there was a seizure and that seizure was “unreasonable” (as California had conceded for purposes of that case), then the dropped drugs would be the fruit of the unreasonable seizure and therefore subject to suppression at the criminal trial. If, on the other hand, there was no seizure until after the dropping of the drugs, then police would have needed no reason for chasing Hodari, and the drugs would qualify as abandoned property, freely admissible at the criminal trial.
Hodari lost his case, and that fact may have been the only relevant feature of the outcome, from his perspective. For attorneys and their future clients, however, Hodari D. let us know that in order to qualify as a seizure under the Fourth Amendment, the police conduct must do one of two things. It must represent a show of authority to which the suspect submits or alternatively, it must consist of the officer’s touching the suspect or applying physical force to him, whether the touch or force does or does not successfully result in the suspect’s apprehension. A show of authority alone (such as by chasing a suspect down the street) thus must succeed before it matures into a seizure, while touching or applying physical force to the suspect is a seizure immediately, even if the suspect escapes the officer’s grasp and thus terminates the seizure. Hodari D. thus gave us a working map of when an attempt at apprehending someone is and is not a Fourth Amendment seizure.
One question that arose briefly at the oral argument in Torres was whether shooting a person in the back qualifies as a seizure even though the officer’s “touching” of or applying physical force to the suspect happened through the projectile of a bullet. In other words, if an officer’s grabbing a person with his hand counts as seizing him (notwithstanding the person’s slipping through the officer’s grasp), then does that mean that causing an inanimate object (like a bullet) to touch the person also qualifies as a seizure? Though arrests during the colonial period (aka framing and ratification) generally involved no guns, it seems sensible to treat “touching” (or applying physical force) with an officer’s hands as the equivalent of “touching” (or applying physical force) with a projectile or some other object. Imagine if all that an officer had to do to avoid triggering the Fourth Amendment’s requirements was to wear a pair of gloves or grab a suspect who was wearing a sweater or a coat. Using inanimate objects to do things like sweep the floor, drive a car, beat people up, or attempt to kill those people seems logically indistinguishable from doing those things with one’s own hands. Indeed, the very purpose of these items is to make it easier for us to do things we would otherwise have had to do with our hands. Sweeping the floor is far easier with a broom and dustpan than it would be with one’s hands alone, and penetrating a suspect’s back is likewise a simpler matter with a gun than it would otherwise be. I think most people would find bizarre any rule distinguishing between touching with hands and touching with such items as bullets, for purposes of the Fourth Amendment’s regulation of what police may do to suspects.
Holding vs. Dicta
The Justices who spoke during argument seemed to want to keep faith with Justice Antonin Scalia’s opinion for the Court in Hodari D. For the petitioner Roxanne Torres, that would appear to mean that shooting a suspect in the back (in a hail of 13 bullets, 11 of which missed her) does qualify as a seizure and therefore fall within the Fourth Amendment’s requirements. The Court said in Hodari D. that touching or applying physical force to the suspect is a seizure, even if the touching or physical force fails to lead to successful apprehension. The next step would be a remand in which the lower court would address the question whether the seizure in question was or was not reasonable.
But at least a few of the Justices seemed to think that the holding of Hodari D. was far narrower. Justice Clarence Thomas, for instance, at one point seemed perplexed that a case ruling against the respondent could possibly support the Torres petitioner. All we learned from Hodari D., in other words, was that the police officer there did not seize the suspect by chasing after him. That alone was the holding. The only side that could benefit from the case would accordingly be the government, which could say in future cases that other officers pursuing a suspect would also not qualify as seizing him for Fourth Amendment purposes. Why was the respondent citing it? Though other Justices were somewhat more circumspect in their phrasing, several seemed to agree with Justice Thomas that the holding in Hodari D. had nothing affirmative to say about when a police action did qualify as a seizure.
I found this conception of “holding” and “dicta” peculiar. Under it, if Justice Scalia had truly wanted to hew to the Article III case or controversy requirement, in letter as well as in spirit, he would have written the following “opinion”:
The respondent asserts that police seized him. California (unnecessarily, see Proverbs) concedes that it acted unreasonably, thus leaving the seizure/not-a-seizure issue the only one before us. The officer chased after Hodari but failed to catch him until after Hodari had discarded his drugs on the street. Chasing is not a seizure, so the State of California wins.
Opinions would be much shorter. One could read them in a fraction of the time it ordinarily takes to absorb judicial writings.
I and most attorneys, I suspect, do not think of the holding of a case in that limited way. The holding is both the outcome in the case (Hodari lost) and an explanation of what led the Justices to reach that conclusion. In Hodari D., that explanation would include the two types of seizure (touching or physical force and show of authority) and what happens when an officer unsuccessfully attempts to carry out one of the two. What led to Hodari’s loss, then, was not merely the fact that chasing is not a seizure but also the fact that the officer there was attempting a seizure through a show of authority rather than by physically touching the suspect and attempting to force him into custody. That broader conception of the holding clarifies its utility for Roxanne Torres: in her case, the officers did touch her/apply force to her by shooting her in the back. Despite her escape, we know from Hodari D. that the officers seized Torres for the period during which their bullets were hitting her in the back. Hodari lost for the same reason that Torres should win: the officer never touched Hodari but the officers did touch Torres. The Court’s emphasis on that fact has plain implications for other cases like Torres.
For an illustration, consider the following hypothetical case. A state passes a law requiring abortion patients to receive an informed consent session (telling them about fetal pain and a debunked link between abortion and cancer) twenty-four hours before having the procedure. Because of the global pandemic, women complain that having to enter a clinic with lots of other people on two separate occasions doubles their risk of contracting the virus. Assume that the Supreme Court upholds the requirement 6-3, explaining that lots of cases in the past have upheld waiting periods and that we are not in the midst of a “natural disaster.”
Now imagine that another case arises in a state high court. The appellants challenge a law requiring an informed consent session forty-eight hours before an abortion. Could the state high court hold that the law violates the Due Process Clause of the Fourteenth Amendment? It could perhaps do so by distinguishing twenty-four from forty-eight hours, but it would help a lot if in between the two cases, a relevant authority had declared COVID-19 a “natural disaster.” The relevant distinction between the two cases, one that actually calls upon the reasoning of the earlier decision, is that now the appellant would be dealing with a natural disaster and might accordingly get to rely on that fact in a way that the last challenger could not. An opinion, in contrasting the facts before the Court with the facts that would change everything, offers reasoning in defense of the outcome. That reasoning is as much a part of the holding as the petitioner’s loss or the respondent’s gain.
Sometimes it truly is difficult to know whether to consider some feature of a case to be holding or dicta. If we have a plurality and several overlapping concurrences, it may be that the only real holding is that the petitioner or respondent won given the facts before the Court. Such rulings are virtually useless to lower courts because facts are rarely identical to those in an earlier case. The Supreme Court would likely avoid granting certiorari if it anticipated an outcome of this sort because certiorari is a vehicle for the Court to help guide the lower courts. A holding that contains nothing but the naked outcome of the case provides little guidance and few reasons to prefer one case over another in deciding when to grant certiorari.
The understanding of a “holding” that several Justices apparently have asks us to ignore the part of a majority opinion that provides a justification and explanation for the outcome, an account that includes distinctions between the facts that came out one way and the facts that would have yielded a different result. Torres is one of those cases in which the routes to one of the outcomes (in which the government wins) are both so unconvincing that it would hardly seem necessary to refute them. Of course an officer has touched a suspect at least as much by shooting her in the back as he would have done by momentarily grabbing her arm. And obviously the Hodari D. case holds that the officer’s failure to touch Hodari D. was the reason that the officer there did not “seize” the suspect. I am hopeful that despite everything, a majority of the Court will reach the right result in Torres and will offer an explanation for that result, an explanation that will someday qualify as part of the holding.