Reason: The Volokh Conspiracy: The Role of Originalism in Torres v. Madrid by Orin S. Kerr (“Some preliminary thoughts on a fascinating case.”)
In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment “seizure.” The question in Torres is whether a person is “seized” if the government uses physical force to try to stop someone but the force does not succeed in stopping her. The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away. Was the shooting that injured her a Fourth Amendment “seizure”?
In this post, I want to discuss a really interesting question that I see underlying Torres: To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?