Volume 59

Seizing § 1983 After Your Protest Today: Fourth Amendment And Protest Policing Post-Torres

by Chun Hin Jeffrey Tsoi

Protestors’ Fourth Amendment claims are often dismissed because the officer “dispersed” but did not “seize” them. This Essay is devoted to examining the space of the Fourth Amendment that can be seized in the context of protest policing after Torres v. Madrid, by suggesting (relatively) novel arguments regarding protest policing conduct that fall under the three types of seizure laid out in Torres. Part I of this Essay discusses the impact of Torres on Fourth Amendment seizure jurisprudence. Part II examines some sample categories of protest policing conduct and the (relatively) novel arguments that they remain reasonably (or even squarely) within the current seizure jurisprudence—under seizures by force, voluntary submission to show of authority (seizures by control), and termination of movement by means intentionally applied (seizures by control). Part III then concludes by summarizing alternative routes (e.g., Fourteenth Amendment substantive due process) should these seizure arguments fail, and some further barriers to proceeding (e.g., qualified immunity) should these seizure arguments succeed.

Read More

Subscribe to ACLR