car and attempted to open the door without announcing they were police officers believing she was being carjacked ms torres drove away and as she did respondent fired thirteen shots at her two of the bullets hit her in the back and rejecting ms torres claims that the shooting violated the th amendment the court of appeals did not consider whether respondents use of deadly force was reasonable by the court's reasoning respondents could have shot miss torres without any provocation and it would not have violated the th amendment because instead of remaining in the parking lot she drove herself to the hospital the court of appeals decision conflicts with the ordinary meaning of the words future at the time of the th amendment adoption and it conflicts with this court's precedent and had already the co recognized that when a government officer inflicts physical force on a person with the intent to restrain them that person is seized within the meaning of the th amendment regardless of whether that restraint is successful as had already explained this is because  the th amendment must protect today what it protected when it was adopted and in determining what the th amendment protected at the founding this court has always looked the common law definitions of search and seizure and with respect to seizures of persons the common law of back she was seized within the original meaning of the th amendment several centuries worth of cases in commentary both before and after the founding for most recognize that physical force intended to restrain is an arrest even if the subject evade capture corcoran what if the police had shot out the tires of her car but she was able to continue driving on you know there were those self sealing tires that you can get would that be a seizure no it would not because there would be no application of physical force to her body well i talked there was an element of intent to hamper movement to your it so they have shot her tires and not and but they've shot at her tires but but unintentionally hit her yes yes i understand so under those circumstances the answer would be yes because they have physically impacted her through the means intentionally applied that's the test from our what they're applied to the car really not to her you are you saying if it's completely inadvertent it still constitutes a seizure no because in that circumstance they are shooting at the car with the intent to restrain the driver i think that would be akin to the barricade erected in our which this court held seized the driver there because he was seized by the interim mentality put in place or set in motion  countess with the edge of the mace in declaring her his prisoner but more generally because at the during the founding era arrests were primarily effectuated by civil citizens who were not prosecutions so the countess of rattling case was a civil case most of the cases we cite are civil arrest cases because criminal arrests were rare at the founding there was no police force in the united states until the th forty's and criminal opinions were even rarer we do cite one state the townsend and there are a few others from the antebellum era but most of the cases from the founding era  civil arrest cases as this court recognized and payton whether an arrest occurred a common law typically arose in the context of civil damages suit for false arrest or trespass on the body similar to what we have here  incorporate the common law of attempted seizures into the constitution so it's only the terms that the founders used in the th amendment that are incorporated into it and must be applied according to their original meaning yes because that is the sniper shot the bullet with the intent of applying physical force to the person in order to restrain that in the latter is just an ordinary speech would we say that the sniper sees the person intentionally being the batter when we say wow that pitcher just sees the batter i don't know that we would use it in that context i would point to had our i d s example she sees the purse natur but he broke out of  squares with the language of the th amendment which prohibits unreasonable seizure of sput let me move on very quickly to another point do you have any cases that hold common law shooting someone consistent with the language of the th amendment and you want us to expand the concept of an arrest beyond where it stood common law is that correct now your honor we are asking the court to affirm the original meaning of the th amendment i think that's important because we started by talking about what the word means today but of course for the purposes of interpreting constitutional pact we look to the ordinary meaning to the founding ger i thought your argument course includes it's in direct application to extent that pulling a trigger would be considered an indirect application but we look we look to the common law to determine what force was at the time and i don't think there's any real dispute that the choosing someone or hitting them with a bat or any sort of application of force using an instrument would have qualified under that original meaning of seizure thank you just a sort of a or a county so picking up on that last point  it is a little odd to say that a police officer who touches you have she's doing the calm and all but if he has it but time in his hand and touches you with the p he's done so in directly so he hasn't seized you and if he takes a gun and shoots the bullet at you that's not a seizure because it's a projectile  assuming your what your statement was to my two prior colleagues is that the common law didn't draw that kind of distinction because it made no sense correct that's correct every circumstance you just described would have fallen within the original meaning of seizure at the founding now could you explain why this case is so important meaning if you don't if you weren't to have a  mint violation would the due process clause provide you with a remedy so i don't think that the remedy provided by the due process clause is adequate here at least under the current regime where we have a conscience shocking standard there are all sorts of abuses by the government of power that would fall short of the conscience shotting standard even though they would be un that we are not bound to take account of them i was just wondering what's your response to that was certainly the court's holding in hidari a the that the common law of arrest finds a th amendment seizure is binding precedent that was the foundation of the court's finding of no seizure in that case and that the court's discussion of what the common law  how which was that touch intended to restrain is a seizure regardless of whether there's a good mission i don't know that i would say finding in the sense that it was necessary to the court outcome but the court thoroughly considered the question presented here that those were not generalized stray statements made in a different context the court was considering this question question and all nine justices agreed that the circumstances we have here would amount to a common law arrest and the th amendment seizure and if you read the common law acacias do you get any sense of why it was that those cases said that near touchless enough i mean is there a rationale that accompanies that rule the founding generation recognized that the infliction of physical force on the body is itself an intrusion regardless of whether the client would have had a good common law claim in new mexico but for the statue of limitations running is that right there was no i'm not i that's that's my understanding as well i can  house what's what's what's incorrect about that and why should we in defining the word seizure rely on debt collection practices and defining the term arrest in england so as the court observed in paignton at correct because most of us are effectuated by private said ok and then going back to the chief justice is example if huge roadblock were put before an individual and everybody should set him but nobody had some but his windows open and he gets scraped going by i mean they meant to stop him with that with the roadblock and he gets scrapes so it's intentionally applied that's a seizure under your theory right i think so if i follow the hypothetical correctly in the sense that that th you everywhere still lots seized by any of that because it's a show of force but he gets scraped through the window as he goes by by the road block and that was intentionally applied force for sure that's that's a seizure and in your book even though it wouldn't be seizure for show force purposes right now i don't think that that scenario what i understand now apologies i i misunderstood initially there that's the scraping i think is is not caused by the the means intentionally applied to amendment seizure occurs only when there is a governmental term a nation of freedom of movement through means intentionally applied what would you suggest we do with that that the officers who are back to the barricade intended to restrain the driver for the purposes of a seizure the driver there was killed on impact so the combination of movement was beside the point in that case and then i think few of the questions so far have tried to illustrate a potential distinction between how we normally use the word seizure in ordinary speech and how it's been used historically versus maybe the legal  common law will use that you've described is that accurate with how it how should we deal with that distinction between ordinary usage and why shouldn't we just follow the ordinary usage of the term caesar i would look to adare vs discussion of this which explains that to the extent ordinary meaning of seizure at the time of the founding was more expansive than how we normally think about seizures today it's the ordinary meaning at the time of the founding the controls expression of the modern understanding risk diminishing the constitutional right this court has repeatedly recognized that the constitution must at minimum protect today what it protected at the time it was corcoran you can take a minute to wrap up if you'd like thank you i've said a lot today about important the importance of preserving the th amendment original protections but our position also makes sense stop practically this court has long recognized that at its core the th amendment protects against unreasonable government intrusion with personal security including based invasive physical touch we see that in terry the ohio maryland the king and winston  others it's a principle that flows from the th amendment express protection protection of the person that has the body and it's violated the moment a police officer applies physical force to a person's body regardless of whether they're able to walk away intentionally apply reigning physical force to his body if the subject does not stop last only a moment the moment of physical impact and may have limited implications like any seizure though it about that the touch can be too light to qualify as a seizure i'm looking at for example page thirteen where you say you know tapping somebody on the shoulder and asking for immigration insurer this was an individual who had drawn drugs away and then was later tackled right correct on so i don't see how on those facts the the the some of the he was not at that time but the seizure after the tackling and the submission or the control had was the only seizure there so i don't know you seem to be using your  definition or at least the explanation in her diary for what is what constituted a seizure when there was a finding that there was no seizure there as a basis for your argument anyway let me move on  to your case law can you think of a single case in that common law where there was a touching by and animate object for example a projectile that did position at the bottom of page eighteen of your brief you say any damages claimed in the civil suit would be limited to harms traceable to the brief moment of the seizure i would have fought that the damages in a case like this if this is a valid claim would constitute the facts of having been shot medical expenses pain and suffering lost income and all that sort of thing could you explain what you meant by that statement what we meant to say was that in many cases the leading physical force these are will be something that are less than a bullet and so you know for example if an officer grasped at that jack arm and the is traceable to the book to having been shot is it traceable to the brief moment of the seizure which is what you say in your brief we think the brief moment of future is if the bullet entering this part his body so i think they're or counsel you rely as does your friend on both of you believe i think and if i'm wrong let me know the the language force even if on successful can be a feature that language has never been abrogated and that particular point was agreed to by the defense so we take the hood argue court at its word and would argue did establish a clear and admissible line that has been in place for thirty years so we are not asking the court to revisit that language in heard already today it seems somewhat logical it was necessary to the reasoning of the court in reaching  counsel sables and i wanted to ask you about exactly that question that you just said at the end because your office did take a different view and had already say this this question was viewed as important to the resolution of the case there and the offices and  i'm quoting here a common law the concept that someone could be in flight and yet also be seized would have been unfathomable so this is not a criticism of a change of position i just want to understand what accounts for the change of position in this drew from the common law so were we didn't really feel comfortable simply you know running it back it's also true that as i say sort of alluded to before her last thirty years who carried the had provided a clear and admi standard to determine when interactions between a police officer and if it has been rise to the level of the th amendment and united states of interest here is in establishing a clear and predictable rule that law enforcement can apply in how to analyze the intent required for us meetings as a goal for caesar and we have tried to emphasize that that's an objective inquiry under the court cases that i wouldn't if agreement but rather slight difference between petitioners position and our thank you why should we incorporate dickensian debt collection practices which were enabled by a very liberal view of the rest to allow somebody to reach through a window grab somebody why should we incorporate those practices into the term s rose in a different context from the one that we're talking about here and what the common law and the th amendment have in common for going to do if we're going to do the common law the rest i thought i heard you disagree with your friend earlier  and that there it's pretty hard to find a case involving a projectile that constitutes an arrest even under the very liberal dickensian type that collection practices cases that's true your honor there's not  actual control over the person or things seized and the brief said as a matter of original understanding one could not be arrested or cease until he was in the physical custody of the caesar and within his control  already as you point out did not adopt that position but was the court wrong about the original understanding and other words whose correct about the original understanding the police action must result in the officer's acquisition of custody over the person terminating the person's movement in other words the suspect must be stopped by the very instrumentality set in motion or put in place by the that the same is there any reason we shouldn't translate those into a police affecting a seizure absolutely machine just as we should not translate that body of case classified by the petition was able to drive on only for a couple one hundred yards with your conclusion be any different i would say that no no reasonable person no ordinary person as a matter of common sense can say that a person who is shot by the police but it continues to drive where a lot of range well in their sights and elude them for to give us your reasons for why some of that language that seems to dispose of this case and i'm adare d is not is dicta absolutely justice five are you familiar with that case i have could you tell us what your take is as to whether or not that constitutes precedents for the mere touching with an inanimate object being the equivalent of an arrest it that way too the are there any cases that you've seen where the mere touch as been applied to someone outside of the criminal context in any of the cases that dealt with without a warrant once to search a private person's house anders in the middle of the night before he can do anything yes and look for a single thing no chance to look for or rd for anything a big dog drives him out here but that doesn't seem to maine to make the right of the people to be secure in their persons or houses from unreasonable searches and seizures much protection all area no protection or no judge just prior is that the seizure or clause of the th amendment and the search clause of the th amendment to protect different interests the seizure laws protect against reasonable to protect against the the idea that the government can and turn into a house of a gentle warning and search for whatever information it wants and it's not a rd because the big dog scared them  on the ordinary notion of seizure suppose a police officer is attempting to arrest someone grabs that person's shirt and holds on to the shirt for a couple of seconds suffered a seizure does not require the submission to the law enforcement officer and it doesn't require that a person be permanently taken into custody it simply requires that the person who is doing the seizing have control of that person for some period of time is that your understanding that it is my understanding your honor that the officers are acting with the intent to bring the person under their control actually then acquires that control those are the two necessary elements of a teacher you presumably certainly know more about new mexico law than i do is there any reason why this could not have been court after the period of the statue of limitations had expired for a level playing under our sovereign immunity statute she she didn't file in time of the within the three year limitations period we allow law that are more generous than those that would be available under nine hundred and eighty three dollars i don't know when you start your honor we do have a good fade defendant carriage from new mexico supreme court case law and quite well informed about a generally that has to do with the th amendment protection a bodily integrity it is why we call putting a needle in someone's arm a seizure that requires either probable cause or exigent circumstances except for a and all of the common law cases that the other side has quoted talk about not the seizure of the person and stopping their motion but the seizure of the person with respect to the touching of that person because even touch stop to it may be for a split nd but if your emotions movement and offends your integrity you want us to add something more to the word seizure you say because common tense says that when a person is held for some perceptible period of time a few seconds more than a few seconds i don't know what your answer to justice alito meant that that is more of a seizure than putting a bullet in someone and my understanding your argument accurately i think it's a sort of my or i literally i don't believe we're asking no court today to add anything to add any extra layer of analysis to the seizure issue beyond wh was wrong about what the common law showed that's exactly what you're asking us to do you're saying it was pure dicta his entire analytical approach was wrong well a seizure is a form of arrest whether you stay arrested or not just to say your example of the police person pulling away and running away you can still be seized you can still be arrested house that idea of control as opposed to intrusion laying your hands on someone that was all of the common law talked about wasn't you try to distinguish away those cases this i count six times either in its own language or quoting somebody else and that's kind of amazing muso me a seven page opinion so this is just like all over the opinion it's the way that just scalia reached his conclusion as to that case so how could it be that that is not binding on us because i mean it started in contrast to the old what we cut sometimes call straight statements things that we said without thinking about them things that we said without sort of realizing the consequences these statements have a kind of self consciousness and a kind of clarity tha one you know seldom sees in a judicial opinion and it's clearly the way justice scalia thought he was coming to this conclusion and that conclusion you're right it's not a forced case but essentially he's saying well look you either need force or you need submission and he's going through the common law to suggest why those those requirements were not met so i guess i just ask you again i mean if anything other than an ultimate holden is not this does this is not  that person has been brought underground possession custody or control not actually feel made and contemplate that if they use some level of force and a person that is the subject of that force and as i think you just noted and i just want make sure i understand you creat not only would there be a battery claim under state law there could potentially be a th amendment excessive force kind of claim as well that is precisely correct or are becom a number of lower courts of course held that this passage was dick is there anything disrespectful about saying that some portions of the judicial opinion are are essential to its holdings and others are may not have been fully considered especially right you're arguing as i understand it the justice scalia and really all nine justices in that case were wrong about the original meaning of the th amendment and like you to explain why that is not whole area are not compatible with the modern conditions of police work as we know them today by a show of authority but in the show of authority you need actual submission those are the two avenues to the opinion outlined as i read it and neither was met in that case leading as justice thomas said the bottom line holding that there was no seizure there isn't an incorrect reading only you have the reading one hundred are you exactly correct the other side makes a point i think justice pryor was getting at this there is some symmetry with jones the g p s case of placing a g p s on your car and tend to search touching your at any action that invade a person's interest and privacy and so that is where the asymmetry comes from and that is why not and how yes to the facts of this case ok thank you word arrest covers only seizures of persons and they needed language that would also in compass seizures of property their use of the word seizure to cover arrest was consistent with the founding era dictionaries and case law which treated the arrest and seizures of persons peyton as supporting his position but there the court found that the common law was unsettled about the legality of a warrantless home invasion to make a felony arrest in contrast respondents have not cited a single founding error a case where the court found that no arrest or no seizure occurred because the suspect escaped after the the officer touched him this is not an area where there's any doubt about the common law and with respect to the lack of cases involving intimate inanimate objects as i said earlier this court recognized in castleman that the application of or that that the common law force included it in direct opposition and that's consistent with our in drafting the th amendment the framers chose a term seizure of person that was widely understood at the time to include any touch intended to restrain even when unsuccessful that common law reflected the founding generation's belief that the infliction of physical force on the body is itself a per found intrusion on personal liberty regardless of whether it's in physical control that is the concept that the founders gave constitutional significance in the th amendment and to the extent we think about seizures differently today it is the ordinary meaning at the founding that matters for the purposes of interpreting constitutional text contemporary shifts in language not diminish our constitutional rights the alternative offered by respondents is a regime that as a practical matter provides no constitutional protection from excessive force by the government so long as the victim can excuse afterwards a constitution that unconcerned with the police shooting someone without any provocation so long as the person doesn't immediately stop moving it's not just counterintuitive it defies the same city of the the government from attempting to restrain private citizens with unreasonable physical force regardless of submission and it continues to provide that protection today thank you thank you