Fans of dueling citations to ancient cases will want to savor the entirety of the majority and the somewhat heated dissent in this case; the serjeants-at-mace shew their mace at one point. Everybody else just needs to know this: a police officer who applies physical force to the body of a person seizes that person if the objective circumstances show an intent to restrain. This seizure occurs during the application of that force even if the intended restraint doesn’t succeed; that is, if the person gets away. And that force can be communicated by means of a projectile, like a bullet.
This is a § 1983 suit for excessive force; whether a seizure occurred matters to the parties because the Supreme Court has held that an excessive force claim “aris[ing] in the context of an arrest or investigatory stop of a free citizen … is most properly characterized as one invoking the protections of the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 394 (1999). Officers approached Ms. Torres near her car; they initially thought she was someone else they were seeking to arrest. She says she thought she was being carjacked, so she got in her car and began to speed off. The officers shot at her (they say she was driving toward them, she says otherwise) and hit her twice. She sped off, however, crashed her car, stole another one, and drove to a hospital 75 miles away. She was arrested the next day.
Building on the discussion in California v. Hodari D., 499 U. S. 621 (1991), the Court distinguishes two types of seizure of the person. First there is the seizure by show of authority. Such a seizure occurs only where the person actually complies with that authority; Hodari D. ran away and thus was not seized. But, says the Court, there is also the seizure by force. This type of seizure occurs any time the police touch a person–however lightly or fleetingly–with the (objectively assessed) intent to detain him or her. A person need not comply for this type of seizure to occur: it is ongoing, apparently, as long as the touching continues, and the fact that the temporarily seized person eventually gets away does not negate the fact that the seizure happened.
The establishment of this last rule for criminal defense is probably significant only in a small class of fruit-of-the-poisonous-tree situations: after all, if the person ultimately escapes an officer’s grasp, whether the officer had justification for the seizure is not likely to matter much. But, to change the Hodari D. facts a bit, suppose an officer, without valid cause, grabs a person by the arm and the person–either intentionally or accidentally–drops drugs or a gun before breaking free and fleeing. If the circumstances indicate that the officer intended to detain the person, then the dropped evidence may well be suppressed.