WPI 342.02 Definition of “Seizure” of a Person—Fourth Amendment

Use this instruction with WPI 342.01 (Unreasonable Force—Fourth Amendment—Burden of Proof on the Issues) in Fourth Amendment cases when a seizure of a person is an element of the cause of action, and an issue other than arrest is involved.

The court in Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (seizure by fatal gunshot) held that “whenever an officer restrains the freedom of a person to walk away, he has seized that person.” See also Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (seizure by means of physical force or show of authority that in some way restrains the liberty of a citizen, e.g., during an investigatory stop); United States v. Faulkner, 450 F.3d 466, 469 (9th Cir. 2006) (“… a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”). A seizure may be effected where a person is not free to terminate an encounter with a police officer. See Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (a passenger on a bus is not free to leave the bus; the question is whether he feels free to terminate the police encounter).

In an appropriate case, it may be necessary to amend the instruction to address the extent to which the actions of government officials were intentional. “Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking … but the detention or taking itself must be willful.” Brower v. County of Inyo, 489 U.S. 593, 595, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (citations omitted) (intentional stopping of fleeing suspect by roadblock constituted “seizure”).