Seized by the moment - but which moment? How a physical force seizure requires only contact with intent to restrain, not intentional termination of movement.

Author:Wyman, Allison K.

    On October 17, 2005, a sheriff's deputy in El Paso County, Colorado shot a suspect as he fled from his attempted burglary. (1) Despite his injury, the suspect continued to flee until he was apprehended three days later. (2) In 2009, the suspect sued the deputy in federal district court for excessive use of force and lost on summary judgment because the court found that no seizure had occurred. (3) Without the seizure required for the claim, the court never even considered whether it was reasonable for the officer to use deadly force in the situation. The Tenth Circuit then affirmed the Brooks v. Gaenzle (4) decision in 2010. (5) However, if the suspect had been shot under the same exact circumstances in the Eighth or Eleventh Circuits, the court would have determined that the suspect had been seized and ruled on the claim based on the reasonableness of the officer's actions. (6)

    The circuit split explained above is whether a shot suspect who subsequently evades arrest is seized within the meaning of the Fourth Amendment. The key point of contention--the precise moment a physical seizure occurs--involves an even greater divide addressed by all but two circuit courts of appeals. (7) The disagreement among the courts is a result of two Supreme Court decisions, Brower v. County of Inyo (8) and California v. Hodari D. (9) While both opinions were written by Justice Scalia within three years of each other, they provide seemingly conflicting definitions of a physical seizure. Under Brower, a physical seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." (10) However, in Hodari D., the Court held that "[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 ultimately unsuccessful." (11) By denying the petition for certiorari in Brooks, the Supreme Court declined to resolve this issue. (12)

    This Note focuses on the circuit split over the exact moment a physical seizure occurs. The First, Fifth, Sixth, Eighth, and Eleventh Circuits follow the Hodari D. approach, (13) where a physical seizure occurs upon contact with intent to restrain, whereas the Fourth, Ninth, and Tenth Circuits apply the Brower standard, where a physical seizure requires intended termination of movement. (14) Although physical seizures normally do not attract much attention because "the finding that a [physical] seizure has occurred usually has not been seriously contested[,]" (15) in cases like the one described above, the exact moment of seizure is often determinative regarding evidence admissibility in criminal cases, and the success of excessive-force claims in civil cases under 42 U.S.C. [section] 1983. (16) Because "[t]he intrusiveness of a seizure by means of deadly force is unmatched[,]" (17) but the legal implication of a bullet wound depends on the general seizure standard, (18) this Note will analyze the Brower and Hodari D. physical seizure definitions and the ensuing circuit split within the context of law enforcement shootings.

    This Note argues that the circuit split should be decided in favor of the Hodari D. physical seizure definition where physical contact with intent to restrain constitutes a seizure. (19) Following this standard would not require completely overruling Brower, but instead would limit the termination of movement standard to seizures that do not involve physical force. (20) In short, if the seizure involves physical force, the Hodari D. definition applies, and if the seizure does not involve physical force, then the Brower definition applies (which was subsequently supported in Hodari D. for non physical-force seizures). (21) Part II of this Note will introduce major seizure law cases to briefly explain the status of physical seizure

    law before Brower and Hodari D. Part III will explain the circuit divide over the definition of a physical seizure. Part III.A will illustrate applications of the Hodari D. definition and Part III.B will show instances where circuits have used the Brower standard. Part IV will explain and rebut the major arguments against using the Hodari D. seizure definition. This includes explaining how the Hodari D. definition is not dicta, illustrating how the definition involves an actual seizure instead of an attempted seizure, discussing how the definition is consistent with rejecting the concept of continuing arrests, showing how it expands the definition of a physical seizure, and proving how the definition does not conflict with subsequent Supreme Court decisions.


    The Fourth Amendment of the United States Constitution reads:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (22) The Supreme Court attempted to define the term "seizure" in the landmark case for modem seizure jurisprudence, Terry v. Ohio, (23) by explaining that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." (24) Citing this basic principle, the Court established in Tennessee v. Garner (25) that a seizure occurred when a police officer shot and killed an unarmed fifteen-year-old boy as he fled from a house where he had stolen ten dollars and a purse. (26) After recognizing that once the suspect sustained fatal injuries, his freedom of movement was restrained, (27) the Court announced "there can be no question that apprehension by the use of deadly force is a seizure subject to the ... Fourth Amendment." (28)

    In United States v. Mendenhall, (29) the Court concluded that a seizure occurs by physical force or show of authority "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (30) This remained the standard until Brower v. County of Inyo, (31) where a seizure occurred when a suspect crashed into a police-ordered roadblock after a twenty-mile high-speed chase and died. (32) Through its decision, the Court set forth the rule that a seizure requires "a governmental termination of freedom of movement through means intentionally applied." (33) Recognizing that execution of a seizure in theory and in reality sometimes differs, the Court acknowledged that "it [is] enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result." (34) Thus, in Brower, the Court established the requirements for a seizure: termination of movement and the intent to seize. (35)

    In California v. Hodari D., (36) two officers patrolling a high-crime area spotted a group of youths huddled around a car. (37) When the officers approached, the youths panicked and one discarded crack cocaine as he fled. (38) The Court reversed the California Court of Appeal by finding that the crack cocaine discarded by the fleeing suspect was admissible evidence because the seizure of the suspect did not occur when the officer pursued the suspect, but instead when the officer physically tackled him. (39) In reaching this conclusion, the Court recognized that at common law, a seizure required bringing the subject within physical control. (40) However, the Court adopted the common law exception to this rule, where intentional contact that is ultimately unsuccessful still constitutes a seizure. (41) Thus, this Note argues that Hodari D. modified the Brower termination of movement standard regarding physical force seizures by concluding that a physical seizure occurs when an officer applies force with intent to restrain. (42) This means that conduct considered an attempted seizure under Brower, where the officer applied physical contact but the suspect escaped, would be considered a seizure under Hodari D. (43) Not all circuits have accepted this modification, insisting that termination of movement must occur to effect any type of seizure. (44) The next sections will explain the circuit split over this issue and will support the Hodari D. interpretation by rebutting the main arguments against it.


    Justice Warren explained in Terry that the Court's "first task is to establish at what point in [an] encounter the Fourth Amendment becomes relevant[,]" (45) which means determining "whether and when" a seizure occurs. (46) The Tenth Circuit has split with the Eighth and Eleventh Circuits over whether a shot suspect who continues to flee is seized. (47) The specific point of disagreement turns on the definition of a physical seizure, (48) and both sides can find support from other circuits in analogous cases involving a law enforcement shooting. (49) In fact, the split among the three circuits regarding the seizure status of a shot, fleeing suspect is actually a divide across all but the Second and District of Columbia Circuits over whether a seizure requires intent and termination of movement (Brower), or simply intent and physical contact (Hodari D.). (50) Thus, what began as a three-circuit split is actually a microcosm for a more fundamental question regarding the definition of a physical seizure--a question that pits the First, Fifth, Sixth, Eighth, and Eleventh Circuits against the Fourth, Ninth, and Tenth Circuits. (51)

    1. Circuits That Apply the Hodari D. Definition

      The Eighth and Eleventh Circuits have adopted the Hodari D. definition in situations where a shot suspect evades arrest. In Moore v. Indehar, (52) the Eighth Circuit found that a seizure had occurred when an officer shot a suspect who then continued to flee. (53) Although the officer claimed that no seizure had occurred...

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