*2 Before W ILLIAM P RYOR , Chief Judge, W ILSON , J ORDAN , R OSENBAUM , J ILL P RYOR , N EWSOM , B RANCH , G RANT , L UCK , L AGOA , and B RASHER , Circuit Judges.
W ILLIAM P RYOR , Chief Judge, delivered the opinion of the Court, in which N EWSOM , B RANCH , G RANT , L UCK , L AGOA , and B RASHER , Circuit Judges, join.
J ORDAN , Circuit Judge, filed an opinion concurring in the judg- ment, in which W ILSON and J ILL P RYOR , Circuit Judges, join. N EWSOM , Circuit Judge, filed a concurring opinion, in which W ILLIAM P RYOR , Chief Judge, and L AGOA , Circuit Judge, join. , Circuit Judge, filed a dissenting opinion. W ILLIAM P RYOR , Chief Judge:
This appeal requires us to decide whether an individual de-
tained for three days based on mistaken identity for a valid arrest
warrant has stated a claim for relief under the Fourteenth Amend-
ment for his over-detention. Deputy sheriffs arrested David Sosa
based on a warrant for another man of the same name, detained
him, and released him when his identity was verified three days
*3
Opinion of the Court
later. Sosa sued the deputies for violating his alleged due-process
right to be free from over-detention. But in Baker v. McCollan, the
Supreme Court held that a detention due to mistaken identity
“gives rise to no claim under the United States Constitution” when
it lasts only “three days” and is “pursuant to a warrant conforming
. . . to the requirements of the Fourth Amendment.”
I. BACKGROUND
This appeal is from a dismissal for failure to state a claim, see
F ED . R. C IV . P. 12(b)(6), so we accept the allegations of the com-
plaint as true. Henley v. Payne,
The Martin County Sheriff’s Department twice has arrested David Sosa based on an arrest warrant for a different man with the same name. In 2014, a deputy sheriff stopped Sosa, a resident of Martin County, Florida, for a traffic violation. The deputy checked Sosa’s driver’s license using the Sheriff’s computer system and dis- covered a warrant issued 22 years earlier in Harris County, Texas for another man named David Sosa. Although Sosa protested dur- ing the traffic stop that the wanted man’s date of birth, height, weight, social security number, and tattoo information did not match his own identifiers, deputies arrested, detained, and *4 Opinion of the Court fingerprinted Sosa. After three hours, the sheriff’s department con- firmed his identity and released him.
Four years later, on Friday, April 20, 2018, another deputy sheriff checked Sosa’s driver’s license during a traffic stop and found the same Texas warrant. Again, Sosa objected that the iden- tifiers listed on the warrant did not describe him. Sosa also told the deputies about the misidentification in 2014. Deputies arrested Sosa and brought him to the Martin County jail, where, despite Sosa’s continued insistence to deputies and jailers that he was not the wanted man, his detention lasted three days over a weekend. On Monday, April 23, 2018, Sosa was fingerprinted, and the sher- iff’s department released him after the fingerprints confirmed that the warrant was for a different man.
Sosa filed a civil-rights action, see 42 U.S.C. § 1983, alleging violations of his rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment against Martin County; the Martin County Sheriff in his official capacity; Deputy Killough, the officer who arrested Sosa in 2018; Deputy Sanchez, an officer to whom Sosa protested his innocence during his three- day detention; and other unnamed deputies. Sosa alleged that the defendants “searched and detained and arrested him without prob- able cause or reasonable suspicion,” that they took “an [u]nconsti- tutionally lengthy time” “to check [his] identity,” and that the Sher- iff and County “did not have adequate written policies, or train or supervise the deputies properly” to prevent Sosa’s arrest. *5 Opinion of the Court
The district court dismissed the complaint. See F ED . R. C IV . P. 12(b)(6). It determined that Sosa had not plausibly alleged that the deputies had violated Sosa’s rights under the Fourth or Four- teenth Amendments. And it held that because the deputies were not liable, there was no basis for liability against the Sheriff and County.
A panel of this Court affirmed in part and reversed in part.
Sosa v. Martin Cnty.,
We voted in favor of rehearing the case en banc and vacated
the panel opinion. Sosa,
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim.
Henley,
III. DISCUSSION
Our decision begins and ends with Baker. There, Leonard
McCollan “procured” a driver’s license that bore his own picture
but, in all other respects, the information of his brother, Linnie. 443
U.S. at 140. “Leonard, masquerading as Linnie, was arrested . . . on
narcotics charges,” “booked as Linnie,” and “released on bail as
Linnie . . . .” Id. at 140–41. Evidently, Leonard violated the terms
of his bond because an arrest warrant was soon after issued for Lin-
nie McCollan. See id. at 141. When Linnie ran a red light, the police
checked his driver’s license, discovered the warrant, and arrested
him, despite his protests of mistaken identity. Id. On Saturday, De-
cember 30, 1972, the police defendants took custody of Linnie “un-
til [Tuesday,] January 2, 1973, when officials compared his appear-
ance against a file photograph of the wanted man and, recognizing
their error, released him.” Id. Linnie later filed a civil-rights action
alleging a violation of the Fourteenth Amendment. Id. After the
Fifth Circuit reversed a directed verdict against Linnie on the the-
ory that the police must “mak[e] sure that the person arrested and
detained is actually the person sought under the warrant,”
McCollan v. Tate,
Absent an attack on the validity of the warrant under which he was arrested, respondent’s complaint is simply that despite his protests of mistaken identity, he was de- tained . . . from December 30 . . . until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Con- stitution.
Id. at 143–44.
The Baker Court rejected Linnie’s over-detention claim based on its consideration of only two criteria: the validity of Lin- nie’s arrest warrant and the length of his detention. Id. It recog- nized that Linnie was “deprived of his liberty for a period of days,” which spanned three days from Saturday to Tuesday. And it recog- nized that his detention was “pursuant to a warrant conforming . . . to the requirements of the Fourth Amendment.” Id. at 144. It con- cluded based on these two facts that Linnie had no cognizable Fourteenth Amendment claim for over-detention.
As the Court explained, any other conclusion would read too much into the constitutional guarantee of due process. The Constitution does not guarantee that innocent people will never be arrested, so a detainee’s claims of innocence are “largely irrele- vant.” Id. at 145. Nor does the Constitution guarantee that officers will “investigate independently every claim of innocence . . . based on mistaken identity.” Id. at 146. When officers do investigate, the *8 Opinion of the Court Constitution does not guarantee an “error-free investigation.” Id. And regardless of whether errors are made, the Fourteenth Amendment is not a constitutional bulwark against a few-days de- tention, “[g]iven the requirements that arrest be made only on probable cause [under the Fourth Amendment] and that one de- tained be accorded a speedy trial [under the Sixth Amendment.]” Id. at 145. Even though the Due Process Clause affords protections to people deprived of their liberty, those protections do not extend to detainees in Linnie’s particular situation.
Under Baker, no violation of due process occurs if a de-
tainee’s arrest warrant is valid and his detention lasts an amount of
time no more than the three days that Linnie was detained. Id. at
144. And both conditions are met here. Like Linnie, Sosa was ar-
rested pursuant to a valid warrant supported by probable cause un-
der the Fourth Amendment. See id. at 143. And like Linnie, who
was held from Saturday to Tuesday, see
Baker’s holding did not clarify when prolonged detentions unlike Linnie’s would give rise to a constitutional violation. The Baker Court “assume[d], arguendo, that, depending on what pro- cedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a cer- tain amount of time deprive the accused of ‘liberty without due *9 Opinion of the Court process of law.’” Id. at 145 (alteration adopted). But the Court did not decide that issue.
Neither do we. Like the Baker Court, we limit our inquiry to the material facts of the case before us. And as the Baker Court was “quite certain that [Linnie’s] detention of three days over a New Year’s weekend does not and could not amount to such a dep- rivation,” id., we are sure that Sosa’s commensurate three-day de- tention did not violate the Fourteenth Amendment. We need not go any further.
That Baker did not draw a bright line between lawful and unlawful detentions does not mean that it instituted a fact-inten- sive, totality-of-the-circumstances analysis for over-detention claims, as our dissenting colleague proposes. See Dissenting Op. at 34–40. Of course, there are some factual differences between Baker and this case. For example, Linnie was detained over a holiday, 443 U.S. at 141, and Linnie’s detention began in 1972, when technology was less advanced and identification may have taken longer, id. at 141. But the Court did not treat these facts as material. See id. at 143–44. Nor did the Court rely on the unstated “limiting principle” of reasonableness that our dissenting colleague has discerned from Baker. Dissenting Op. at 27.
If we treated every factual distinction with a precedential de- cision as necessarily material, the doctrine of precedent would lose most of its function. Glanville L. Williams, Learning the Law 93 (A.T.H. Smith ed., 14th ed. 2010) (“We know that in the flux of life all the facts of a case will never recur; but the legally material facts *10 Opinion of the Court may recur and it is with these that the doctrine [of precedent] is concerned.”) Judges would be freed from the requirement that they apply the law, so long as they could unearth any factual dis- crepancy between binding caselaw and the case they wanted to de- cide a different way. Bryan A. Garner, et al., The Law of Judicial Precedent § 7, at 92 (2016) (“For one decision to be precedent for another, the facts in the two cases need not be identical. But they must be substantially similar, without material difference.”) So, where the two conditions identified by the Supreme Court in Baker are met, we give no weight to facts beyond those material to the two conditions.
And even if Baker had introduced a fact-intensive, totality- of-the-circumstances analysis for over-detention claims, the cir- cumstances of Sosa’s detention would still convince us that he has no such claim. None of the facts differentiating Baker from this case are material. For instance, Linnie was held over the New Year’s holiday, id. at 141, and Sosa was held over a non-holiday weekend. But detainees have the same due-process rights on holidays as they do every other day of the year, so the incidence of a holiday does not change our constitutional analysis. Nor is the lower technolog- ical standard for police investigations in 1972, in contrast to 2018, a material distinction. It was permissible for the police to hold Linnie for three days, not because computers were unavailable back then, but because “a detention of three days” is objectively shorter than the duration that might give rise to an unlawful deprivation of lib- erty without due process. 443 U.S. at 143–45. Indeed, the *11 Opinion of the Court identification in Baker required only a low-technology photograph comparison, so Baker did not depend, even implicitly, on a techno- logical standard. And it does not matter that the warrant in this case was comparatively older than the Baker warrant or that it listed a comparatively more common name. “Absent an attack on the validity of the warrant under which [a detainee] was arrested,” id. at 144 (emphasis added), we make no inquiry into the warrant. After distinctions immaterial to the Baker Court’s holding are set aside, the facts of Baker and this case are strikingly similar. So, our holding is the same too.
Sosa and the dissent argue that our precedent in Cannon supports Sosa’s over-detention claim. See Dissenting Op. at 13–16. In Cannon, officers questioned a traveler named Mary Parrott at a highway rest stop in Alabama, learned that a Mary Parrott was wanted in Kentucky for theft, arrested the traveler, filled out an arrest report with the information of the wanted Mary Parrott in- stead of the traveler, and used that arrest report purportedly to sup- port detaining the Alabama traveler for seven days and sending her to Kentucky, despite her accurate insistence that she had been mis- identified. Id. at 1560–61. We held that a jury could have found that the arresting officer had violated the woman’s constitutional rights. Id. at 1565. Specifically, the officer erred by keeping her detained “after it was or should have been known that [she] was entitled to release.” Id. at 1563. Sosa and the dissent contend that, under Can- non, he was entitled to release because the deputies who detained *12 Opinion of the Court him knew he may have been misidentified based on his protests and did not verify his identity.
Sosa and the dissent misread Cannon: we could decide Can-
non as we did because the two conditions required for Baker’s
holding were not met. First, it is not evident that the Cannon de-
tainee was arrested on a valid warrant supported by probable
cause. The officer who wrote the report that the county judge used
as the basis for the arrest warrant did not record the information
for the woman the officer sought to arrest. Instead, he copied from
a computer database the personal information of the woman
wanted in Kentucky—plus, a social security number that belonged
to a third person, an unrelated fugitive also in the database. Id. at
1560–61; see Wilkerson v. Seymour,
Baker controls this case. Unlike the Cannon detainee, Sosa was arrested on a valid warrant and held for only three days. So, under Baker, Sosa’s complaint did not state a claim for a violation of his due-process rights.
IV. CONCLUSION We AFFIRM the dismissal of Sosa’s claim that his detention violated the Fourteenth Amendment, and we REMAND all re- maining issues to the panel. *15 J ORDAN , J., Concurring
J ORDAN , Circuit Judge, joined by W ILSON and J ILL P RYOR , Circuit Judges, concurring in the judgment:
For the reasons set out by Judge Rosenbaum in Part II.A of
her dissent, I do not think that Baker v. McCollan,
I nevertheless concur in the judgment affirming dismissal of
Mr. Sosa’s “overdetention” claim. The Supreme Court’s recent
qualified immunity decisions require that the facts of prior cases be
very, very close to the ones at hand to give officers reasonable no-
tice of what is prohibited. See Rivas-Villegas v. Cortesluna, 142 S.
Ct. 4, 7–9 (2021); City of Tahlequah v. Bond,
My concurrence is a reluctant one because the Supreme
Court’s governing (and judicially-created) qualified immunity ju-
risprudence is far removed from the principles existing in the early
1870s, when Congress enacted what is now 42 U.S.C. § 1983. See,
e.g., Zigler v. Abassi,
N EWSOM , Circuit Judge, joined by W ILLIAM P RYOR , Chief Judge, and L AGOA , Circuit Judge, concurring:
On April 20, 2018, David Sosa must have felt like he had been dropped into a Kafka novel, for “without having done any- thing truly wrong, he was arrested.” Franz Kafka, The Trial 3 (Breon Mitchell, trans., 1998). Worse than that, following a routine traffic stop, Sosa was arrested and detained by his hometown sher- iff’s deputies for the second time on the same decades-old drug- dealing warrant issued for another David Sosa—one who lived hundreds of miles away in a different state, was a different age, height, and weight, and had conspicuously different tattoo mark- ings. Just as he had the first go round, our Sosa naturally (and re- peatedly) told the arresting officers that they had the wrong guy— but to no avail. The deputies detained Sosa for three days over a weekend before they eventually got around to fingerprinting him, recognized their mistake, and released him.
What happened to Sosa was, in a word, awful. Without pre-
judging the issue, I’d be willing to assume that the officers’ con-
duct—jailing Sosa for three full days on a warrant issued for some-
one else, despite his repeated pleas of innocence and without both-
ering to do much of anything to verify his identity—might even
have been tortious. The question before the Court today, though,
is whether their conduct violated the United States Constitution—
in particular, whether it infringed Sosa’s so-called “substantive due
process” rights. The majority quite correctly concludes that it
didn’t. As its opinion straightforwardly explains, the Supreme
*20
N EWSOM , J., Concurring
Court’s decision in Baker v. McCollan,
I therefore concur in the Court’s decision and join its opin- ion in full. I write separately to reiterate (once again) my grave reservations about the role that “substantive due process” has come to play in constitutional decisionmaking.
I Substantive due process is a slippery, shape-shifting doc- trine. It can take on any of a number of different forms. In what is, I suppose, its most conventional instantiation, it’s the method by which the Supreme Court has gradually “incorporated” most of the substantive protections of the Bill of Rights against the states through the Fourteenth Amendment’s Due Process Clause. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 759–80 (2010) (holding that the Due Process Clause incorporates the Second Amendment right to keep and bear arms). Some observers—in- cluding me—have criticized the Court’s reliance on substantive due process even for that limited purpose and have urged it to re- focus its attention on the long-lost Privileges or Immunities Clause. See id. at 805–50 (Thomas, J., concurring in part and concurring in the judgment); Kevin Newsom, Setting Incorporationism Straight: *21 N EWSOM , J., Concurring A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643, 658–87 (2000).
More controversially, substantive due process has been de-
ployed as a means of protecting certain unenumerated interests—
like, say, “the sanctity of the family”—that are deemed to be
“deeply rooted in this Nation’s history and tradition,” Moore v.
City of East Cleveland,
Still further afield, substantive due process has (too) often been invoked as a failsafe doctrine of sorts—a way to plug some perceived gap in the written Constitution and thereby rectify some alleged unfairness that the document’s terms, for one reason or an- other, just don’t address. “Surely,” the thinking goes, “the Consti- tution doesn’t permit ______!” A court is confronted with some injustice—say, for instance, an individual’s three-day detention in the face of his repeated protestations of innocence and his jailers’ refusal to make any real effort to verify basic facts—and is told that the Constitution simply must provide a remedy. And because the *22 N EWSOM , J., Concurring court can’t find another avenue by which to right the alleged wrong, it defaults to substantive due process.
II
I’m a confessed (and longtime) skeptic of substantive due
process—in all its various forms. See, e.g., id. at 1126–29; Hillcrest
Prop., LLP v. Pasco Cnty.,
First, and most obviously—and most seriously from my per- spective—substantive due process has no footing in constitutional text. Quite the contrary, in fact, it makes a hash of the provision from which it purportedly emanates. The Fourteenth Amend- ment’s Due Process Clause states, simply, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Two notes about that lan- guage: One, as Dean Ely observed, “there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’” John Hart Ely, Democracy and Distrust 18 (1980). And two, as Professor Tribe has explained, “the expressly conditional, purely procedural cast of the Due Process Clause . . . leaves no doubt that life, liberty, and property may all be extinguished, providing only that the gov- ernment do so with ‘due process of law.’” Laurence H. Tribe, 1 American Constitutional Law 1320 (3d ed. 2000). In light of the linguistic misfit, Ely famously dubbed substantive due process a “contradiction in terms—sort of like ‘green pastel redness.’” Ely, *23 N EWSOM , J., Concurring Democracy and Distrust, at 18. If the Constitution’s text matters at all, Ely’s quip captures what seems to me to be an intractable problem: The Due Process Clause’s plain language renders it pos- itively incapable of absolutely protecting substantive rights.
Second, “there’s the matter of history.” Hillcrest, 915 F.3d at 1305 (Newsom, J., concurring in the judgment). “The best indi- cations,” as I’ve explained by reference to verifiable historical sources, “are that those who framed the Fourteenth Amendment’s Due Process Clause envisioned it as a guarantee (as its phrasing and moniker indicate) of fair process, not a font of substantive rights.” Id.; accord, e.g., Newsom, Incorporationism, at 739–40. I won’t belabor the point here, except to say that people smarter and more steeped in the history than I am share my assessment. See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 173 (1998) (making the same point, by reference to many of the same sources).
Third, substantive due process has, let’s just say, a checkered
past. “At least in the Supreme Court, substantive-due-process doc-
trine traces its roots to the fateful—and repugnant—decision” in
Dred Scott v. Sandford,
Finally, on top of the textual, historical, and ancestral diffi-
culties, substantive due process’s freewheelingness (witness the dis-
sent’s “six facts,” see Dissenting Op. at 33–40) poses a serious prac-
tical problem. As Justice Stevens explained for a unanimous Su-
preme Court in Collins v. City of Harker Heights, the “guideposts
for responsible decisionmaking in this unchartered area are scarce
and open-ended.”
Long story short: Substantive due process is a doctrine shot through with problems and chock full of risks.
III
I’d be game for ditching substantive due process altogether
and exploring what I think to be more promising—and princi-
pled—vehicles for protecting individual rights against state inter-
ference. See Newsom, Incorporationism, at 658–87. Short of that,
though, what can be done to avert the harm that the doctrine
threatens? The Supreme Court has emphasized one important
means of cabining substantive due process—one that, as the dissent
seems to recognize, has direct application here. See Dissenting Op.
at 48 n.18. Reviewing courts, it has said, should be particularly re-
luctant to indulge substantive-due-process arguments when an ac-
tual constitutional provision addresses the sort of injury that a com-
plainant alleges. So, for instance, the Court has held that “[w]here
a particular Amendment ‘provides an explicit textual source of con-
stitutional protection’ against a particular sort of government be-
havior, ‘that Amendment, not the more generalized notion of “sub-
stantive due process,” must be the guide for analyzing these
claims.’” Albright v. Oliver,
That, it seems to me, is pretty much exactly where we find ourselves today. Sosa complains, in essence—and not without some justification—that he was arrested for a crime that he didn’t commit and was then detained in jail for an unfairly long time. As it turns out, the Constitution addresses those types of complaints. The Fourth Amendment, of course, generally prohibits “unreason- able . . . seizures” and, more specifically, requires that warrants be issued only on a showing of “probable cause.” U.S. Const. amend. IV. And the Sixth Amendment guarantees every “accused” the “right to a speedy . . . trial.” Id. amend. VI. It’s even possible that a complaint like Sosa’s could, in extreme circumstances, implicate the Eighth Amendment, which prohibits “excessive bail.” Id. amend. VIII.
Now, to be sure, as matters currently stand, none of those
express textual guarantees provides Sosa a ready remedy. As far as
the Fourth Amendment is concerned, Sosa’s arrest pursuant to a
valid warrant would appear to end the inquiry. The Supreme
Court has held that those arrested without a warrant must be given
a probable-cause hearing before a neutral magistrate, usually
within 48 hours, see County of Riverside v. McLaughlin, 500 U.S.
44, 56 (1991), but no similar temporal protection applies to those,
*27
N EWSOM , J., Concurring
like Sosa, who were initially arrested pursuant to a magistrate-is-
sued warrant. The Sixth Amendment would have prohibited
Sosa’s “indefinite[]” detention, see Baker,
But—and this is important—from the premise that the
Fourth, Sixth, and Eighth Amendments don’t provide Sosa any re-
lief, it does not follow that “substantive due process” must do so.
To the contrary, the fact that the Constitution expressly addresses
specific, discrete issues that arise in criminal investigations and
1 Cf. also Schultz v. Alabama,
prosecutions is a sufficient reason not to contort the open-textured
Due Process Clause to force it to reach other adjacent (but un-
addressed) matters. In explaining that substantive due process has
no role to play when a party’s claim is “covered” by a specific con-
stitutional provision, Lanier, 520 U.S. at 272 n.7, the Supreme
Court can’t have meant that the doctrine takes a back seat only
when that provision provides a sure-fire winner; that understand-
ing would render the Court’s prudent limitation on substantive-
due-process decisionmaking wholly superfluous. Rather, as I’ve
explained elsewhere, “[i]f (for whatever reason) the claim can’t pro-
ceed in its natural textual and doctrinal ‘home,’ then, well, it can’t
proceed”—the claimant “can’t just repackage it in substantive-due-
process garb and attempt to relitigate it.” Hillcrest,
So, to be clear, while substantive due process is bad on its best day, this case represents the doctrine at “its abject worst.” Id. at 1306. We’re not just being asked to twist the Due Process Clause’s plain meaning to incorporate some specific substantive freedom enshrined in the Bill of Rights. And we’re not even just being asked to plumb the depths of “history,” “tradition,” and “or- dered liberty” to identify and protect some favored unenumerated right. Here, rather, we’re being asked to use substantive due pro- cess as a constitutional gap-filler—to hold, in essence, that because what happened to David Sosa was unfair, it must violate the *29 N EWSOM , J., Concurring Constitution. That, in short, is “not how constitutional law works.” Id. at 1304. 2
IV
I’ll end where I began: What happened to David Sosa was
awful. But as I’ve said before, “[n]ot everything that s[tink]s vio-
lates the Constitution.” Hillcrest,
2 From everything I’ve said here, I suppose this goes without saying, but I’ll
say it anyway: I think that Cannon v. Macon County,
Everyone agrees that David Sosa is an innocent man. Yet police officers arrested and detained him in jail on a warrant for another man. He was not allowed to leave that day. Or the next. Or the one after that. In all, Sosa spent three nights and days con- fined to a jail cell. Sosa remained in jail for roughly 72 hours be- cause, despite good reason to believe they had arrested the wrong man, Martin County Sheriff’s officials refused to confirm Sosa’s identity—a process that requires an officer to perform less than a minute of work.
Faced with this sequence of events, my colleagues in the Ma-
jority wring their hands and say too bad for Sosa but insist the Con-
stitution allows it. Even worse, three of my colleagues claim that
the Constitution permits officials to hold people in Sosa’s position
without ever verifying their identity. See Newsom Op. at 8–11.
According to these judges, no constitutional violation occurs until
the detained person’s speedy-trial rights are violated—that is, about
a year or more later. See id. at 8–9 (citing Barker v. Wingo, 407
U.S. 514, 530 (1972)). 1 A year in jail! And for no reason other than
1 See also United States v. Knight,
This misguided view of the Constitution is horrifying. It’s also wrong. Our precedent shows that the Constitution does not have an aircraft-carrier-sized loophole in its guarantee that no per- son shall be deprived of their liberty without due process of law. The Majority Opinion unceremoniously casts our precedent aside. But when an officer suspects he has detained the wrong person and has the means to quickly and easily verify the prisoner’s identity, the Constitution does not allow the officer to sit on his hands while the detainee spends days, weeks, or months in jail.
Indeed, over the last thirty years, we have repeatedly recog-
nized that the Constitution protects the “right to be free from con-
tinued detention after it was or should have been known that the
detainee was entitled to release.” Cannon v. Macon Cnty., 1 F.3d
1558, 1563 (11th Cir. 1993). 2 And under this principle, an officer’s
2 See, e.g., Ortega v. Christian,
Here, jail officials had good reason to know that the David
Sosa in custody—the plaintiff here—was not the alleged-crack-co-
caine-trafficker David Sosa from Texas (the “wanted Sosa”). For
one, the warrant was more than a quarter-of-a-century old, from
halfway across the country, and Sosa—who worked in research
and development of airplane engines for Pratt and Whitney and its
affiliates—matched almost none of the descriptors for the wanted
Sosa (like height, weight, or tattoos). For another, Sosa repeatedly
told his jailers that he did not match the identifiers for the wanted
Sosa and that the same sheriff’s office had wrongly arrested him on
the very same warrant just a few years earlier. And third, Sosa is
one of thousands of individuals who share the name “David Sosa”
and lived in or visited the United States when Sosa’s 2018 arrest and
detention occurred. In other words, the deputies had a better shot
at winning money in Florida Lottery games than they did of having
F.3d at 1527); May v. City of Nahunta,
the wanted Sosa in custody. 3 Pair those odds with the descriptive differences between Sosa and the wanted Sosa and account for Sosa’s repeated statements that he had wrongly been arrested on the same warrant just a few years earlier, and it’s almost like the jail deputies knowingly bought losing lottery tickets. These facts should have set off alarm bells in the Martin County jail officials’ heads that they needed to make sure they had the right David Sosa. But instead, the jailers did nothing for three nights and days.
Sosa’s jailers could not ignore these flashing neon signs that
they likely had the wrong Sosa and remain deliberately indifferent
to Sosa’s identity for three nights and days. Rather, the Constitu-
tion required them to take reasonable action—like the simple and
quick computerized process of running Sosa’s fingerprints against
the fingerprints of the wanted Sosa—to confirm whether Sosa was
the wanted Sosa. Our precedent establishes that when the officers
failed to do even that, they violated Sosa’s constitutional rights.
See Cannon,
3 See, e.g., Florida Lottery Game #5048 – Florida 300X THE CASH, with a 1- in-500 chance of winning $1,000.00; Florida Lottery Game #1485 – BILLION DOLLAR GOLD RUSH SUPREME, with a 1-in-821 chance of winning $1,000; Florida Lottery Game #5029 – 500X THE CASH, with a 1-in-1,000 chance of winning $1,000.00; Florida Lottery Game # 1454 - $500 MADNESS, with a 1- in-136 chance of winning $500.00. Scratch-offs, F LORIDA L OTTERY , https://www.flalottery.com/scratch-offs (last visited Jan. 19, 2023).
The Majority Opinion relies on Baker v. McCollan to excuse its failure to apply Cannon (and its progeny) to recognize the vio- lation of Sosa’s constitutional rights. Maj. Op. at 8 (citing 443 U.S. 137, 144 (1979)). But Baker does not justify the Majority’s result. To the contrary, Baker supports the opposite answer—that Sosa sufficiently alleged that Sanchez and the other jail officers who did nothing for three nights and days to confirm Sosa’s identity while Sosa sat in jail violated Sosa’s constitutional rights. So I would con- clude that Sosa has sufficiently alleged a claim, and Sanchez and the other jail officers are not entitled to qualified immunity at this time. I therefore respectfully dissent.
I organize my dissent in three sections. Section I sets forth the relevant background here. In Section II, I show why Cannon and Baker require the conclusion that Sanchez and the other jail deputies are not entitled to qualified immunity, and their motion to dismiss should have been denied. And Section III explains why, if we were writing on a clean slate, the Fourth Amendment more appropriately serves as the source of the right to be free from con- tinued detention when it was known or should have been known that the person was entitled to release.
I. Background Sosa has lived in Martin County, Florida, since 2014. 4 Things did not start well for him there. In November of that year, a Martin County Sheriff’s deputy pulled Sosa over for a routine traf- fic stop. During the encounter, the deputy ran Sosa’s name through the Office’s computer system.
The computer told the deputy of an outstanding 1992 war- rant issued out of Harris County, Texas, for a “David Sosa” in con- nection with the wanted Sosa’s conviction for selling crack cocaine. The warrant described the wanted Sosa, including his date of birth, height, weight, tattoo information (he had at least one), and other details. When the deputy went to arrest Sosa on the warrant, Sosa pointed out that his own date of birth, height, and weight did not match the information for the wanted Sosa and that, unlike the wanted Sosa, he had no tattoos. The deputies arrested Sosa, any- way, and took him to the station.
While detained at the station, Sosa told two Martin County
jailers that he was not the wanted Sosa. And he explained that the
wanted Sosa’s identifiers differed from his own. Then a deputy fin-
gerprinted Sosa and determined that he was not the wanted Sosa.
4 Because this case comes to us on a motion to dismiss, we accept all well-
pleaded facts in the complaint as true. Henley v. Payne,
So roughly three hours after Sosa was initially detained, he was re- leased.
Three-and-a-half years passed. Then, the same thing hap- pened again—only this time, Sosa was not lucky enough to be re- leased within three hours. On April 20, 2018, a different deputy of the Martin County Sheriff’s Department, Deputy Killough, pulled Sosa over for a traffic stop. When Deputy Killough ran Sosa’s name, he discovered the same 1992 open warrant. Sosa explained that he was not the wanted Sosa and told Deputy Killough he had previously been incorrectly arrested on that warrant and released when deputies realized the error. Sosa again noted that he and the wanted Sosa did not share the same birthdate, Social Security num- ber, tattooed status, or other identifying information. But once again, his explanation did not work; Deputy Killough arrested Sosa and impounded his truck anyway.
When Deputy Killough took Sosa to the Martin County jail, Sosa “repeatedly explained to many Martin County employees . . . that his date of birth and other identifying information [were] dif- ferent than the information on the warrant for the wanted . . . Sosa.” Among those Martin County employees were Deputy Sanchez and the other Martin County deputies in the booking area. They wrote down Sosa’s information and told him they would fol- low up on the matter.
But Sosa spent the remainder of April 20 in jail.
The next day, Sosa appeared by video before a magistrate judge. Though Sosa tried to explain the mistaken identity, “several Martin County jailers threatened him and told him not to talk to the judge during his hearing.” As a result, Sosa “thought it was a crime to talk to the judge.”
Sosa spent the rest of that day in jail.
And then he spent the next day in jail as well.
Finally, after detaining Sosa for three nights, deputies finger- printed him on April 23 and released him in the late afternoon. In the meantime, Sosa missed work and had to pay to retrieve his truck from impoundment.
II. Under our binding precedent, Sosa alleged sufficient facts to
survive the Martin County jailers’ motion to dismiss based on qualified immunity.
Qualified immunity shields from liability “all but the plainly
incompetent or one who is knowingly violating the federal law.”
Lee v. Ferraro,
To receive qualified immunity, a public official must
first establish that he was acting within the scope of his discretion-
ary authority when the challenged action occurred. Maddox v. Ste-
phens, 727 F.3d 1109, 1120 (11th Cir. 2013). When we speak of
“discretionary authority,” we mean all actions the official took (1)
in performing his duties and (2) in the scope of his authority. Jor-
dan v. Doe,
Because the deputies were acting within the scope of their discretionary authority, the burden shifts to Sosa to show that qual- ified immunity is inappropriate. See id. To do that, the factual al- legations in Sosa’s complaint must establish two things: (1) the deputies violated his constitutional rights by detaining him for three nights and days on a warrant for a different David Sosa when the deputies knew or should have known that he was not the wanted Sosa; and (2) those rights were “clearly established,” in that “every reasonable official would have understood that what he [wa]s doing violate[d] that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up).
As I explain below, Sosa’s complaint does both. *40 A. Sosa sufficiently alleged that deputies violated his constitu- tional rights by continuing to detain him when they knew or should have known that he was entitled to release. Sosa’s complaint alleged sufficient facts to establish that the Martin County jail deputies violated his constitutional rights by continuing to detain him when they knew or should have known that he was entitled to release. That is so for two reasons. First, our holding in Cannon requires the conclusion that Sosa stated a claim for violation of his constitutional rights. And second, the Su- preme Court’s decision in Baker independently supports the same outcome.
1. Cannon and its progeny require the conclusion that Sosa sufficiently alleged that jail deputies violated his constitu- tional right to be free from continued detention when it was or should have been known that he was entitled to re- lease.
Though a warrant can support an arrest, we have long rec-
ognized that, “under certain circumstances, a detention following
a valid arrest may present a viable section 1983 claim where the
detainee protests the detention on the basis of misidentification.”
Case,
And we are not alone in concluding that the Constitution
protects detainees against continued detention once it is or should
be known that the detainee is entitled to release. At least four of
our sister circuits agree. See, e.g., Gray v. Cuyahoga Cnty. Sheriff’s
Dep’t,
booked individual, such as a nine-inch difference in height, accom-
panied by a detainee’s complaints of misidentification, should
prompt officers to engage in readily available and resource-efficient
identity checks, such as a fingerprint comparison, to ensure that
they are not detaining the wrong person.”); Russo v. City of Bridge-
port,
6 Like we concluded in Cannon, the Sixth Circuit determined that the right
finds its home in Fourteenth Amendment substantive due process. See Gray,
As Cannon demonstrates, state officials violate this right by
displaying deliberate indifference to the likelihood that a detainee’s
identity does not match that of the suspect. In Cannon, a deputy
encountered the plaintiff—then known as Mary Rene Parrott—at
a rest stop in Georgia. Id. at 1560. When he ran her name through
the National Crime Information Center database (“NCIC”), he
learned that Kentucky wanted a Mary E. Mann, also known as
Mary E. Parrott, for crimes. Id. So he validly arrested Parrott and
took her to jail. Id. At the jail, the arresting deputy handed Parrott
off to the jailer, Deputy Collins, who completed Parrott’s arrest re-
port. Id. Parrott repeatedly protested that she was not Mann. Id.
Still, the officer stated that he identified Parrott as Mann because
Schneyder,
As it turned out, though, Deputy Collins failed to take any steps to identify Parrott as the wanted Mann. Parrott and Mann did not share matching Social Security numbers or birth dates. Id. They had different colored eyes. Id. And they were different heights. Id. Parrott was also twelve years younger than Mann. Id. Yet despite these distinctions, Parrot’s arrest report reflected Mann’s identification information. Id. Deputy Collins initially tes- tified that he had filled out the arrest report with information he had obtained directly from Parrott. Id. But the information in the arrest report matched the information in the NCIC report (except that the Social Security number matched the Social Security num- ber of another individual listed on the NCIC report for Mann). Id. This mismatch, we said, suggested that Deputy Collins hadn’t got- ten the information from Parrott at all; he had simply “copied it directly from the NCIC report.” Id. Deputy Collins also attested to a local judge that he believed Parrott to be the wanted Mann, so the judge issued a fugitive warrant for Parrott’s arrest. Id. at 1561. Ultimately, Parrott spent a total of seven days in the Georgia jail before she was transferred to Kentucky, where authorities promptly released her when they discovered that she was not Mann. Id.
When we considered Parrott’s case, we explained that “Col-
lins’ failure to take any steps to identify [Parrott] as the wanted
*45
fugitive was sufficient to raise a question of fact as to his deliberate
indifference toward [Parrott’s] due process rights.” Id. at 1564. In
reaching this conclusion, we recognized that Baker did not “pre-
clude all § 1983 claims based on false imprisonment.” Id. at 1562.
To be sure, we acknowledged that “those responsible for maintain-
ing custody of detainees are not constitutionally required ‘to inves-
tigate independently every claim of innocence.’” Id. (quoting
Baker,
We must apply that rule—under which state officials violate
the Fourteenth Amendment’s Due Process Clause by displaying
deliberate indifference about a detainee’s (mis)identification—in
this case. That is so because our prior-precedent rule requires us
to follow Cannon “unless and until it is overruled or undermined
to the point of abrogation by the Supreme Court or by this court
sitting en banc.” United States v. Archer,
And that hasn’t happened—the Majority Opinion has not overruled Cannon. See Majority Op. at 11–13; but see Newsom Op. at 11 n.2 (advocating for a Cannon-less world). Cannon re- mains good law. And applying its holding requires the answer the *46 panel reached: Sosa sufficiently alleged a violation of his substan- tive-due-process rights.
Indeed, Sosa alleged enough facts to bring his case squarely under Cannon’s control. Like Parrott, Sosa asserted that “from the time of [his] initial detention at the [traffic stop], []he repeatedly maintained that []he was not [the wanted Sosa].” Cannon, 1 F.3d at 1560. In the same way that Parrott’s Social Security Number and birth date differed from Mann’s Social Security Number and birth date, Sosa’s “Social Security Number and date of birth were differ- ent from the Social Security Number and date of birth of [the wanted Sosa].” Id. at 1564. And just as “Cannon’s physical makeup did not match the physical description for Mann,” id. at 1563, Sosa’s physical makeup did not match the physical description for the wanted Sosa’s. The two had different heights, weights, and tat- tooed status (Sosa had none). In fact, according to Sosa, he “ex- plained this in detail to a Martin County deputy named Sanchez as well as some other Martin County jailers and employees in the booking area, who took down his information and claimed they would look into the matter.” Not only that, but the warrant on which Sosa was arrested was 26 years old, from halfway across the country, and sought a person with a name thousands of people shared.
On top of all this—and this is the kicker—Sosa also informed the deputies that the Martin County Sheriff’s Office had previously mistakenly arrested him on the same wanted Sosa’s warrant. Let *47 that sink in: The Martin County Sheriff’s Office had already made this same mistake once before.
Despite this sea of urgently waving red flags signaling that Sosa was unlikely the wanted, allegedly crack-cocaine-trafficking Sosa, the deputies did nothing for three nights and days to confirm Sosa’s identity as the wanted Sosa. So there Sosa sat.
These allegations sufficiently establish that Sanchez and other deputies at the jail had enough information to know (1) that a substantial likelihood existed that Sosa was not the wanted Sosa and (2) that they had the means readily available to rapidly confirm Sosa’s identity. After all, the same sheriff’s office had verified Sosa’s identity by fingerprinting just three-and-a-half years earlier when it arrested him in error the first time. And in 2018, finally, after Sosa spent three nights and days in jail, an unnamed deputy took Sosa’s fingerprints—a standard police tool long used by every U.S. police force. When the deputy did so, he confirmed with ease that Sosa was not the wanted Sosa.
Under these circumstances, the jailers acted with deliberate indifference towards Sosa’s due-process rights when they failed for three nights and days to verify that Sosa was the wanted Sosa—in the same way that Collins violated Parrott’s due-process rights when he failed, “in the face of [Parrott’s] assertions of mistaken identity,” to take “any steps to verify” her identity. Id. at 1565. Given these parallels, Sosa’s allegations about the Martin County Sheriff’s Office’s “failure to take any steps to identify [Sosa] as the *48 wanted fugitive [are] sufficient” to state a claim that the deputies acted with “deliberate indifference toward [Sosa’s] due process rights.” Id. at 1564.
Relying on two irrelevant facts, the Majority Opinion tries to distinguish Sosa’s case from Cannon. In the Majority Opinion’s view, Cannon does not govern here because (1) “the Cannon de- tainee was [not] arrested on a valid warrant supported by probable cause,” Maj. Op. at 12, and (2) “the Cannon detainee was held for seven days,” id. But neither distinction excuses compliance with Cannon’s rule.
First, the Majority Opinion’s distinction between an arrest
based on a warrant supported by probable cause (Sosa’s case) and
a warrantless arrest also supported by probable cause (Cannon) is
meaningless under Cannon. The warrant/warrantless distinction
doesn’t matter because the arrests in both cases were supported by
probable cause, so they were valid. And we’re not talking about
the arrests; we’re talking about the detentions after the arrests.
That is so because, as the Majority Opinion’s author has explained,
“a detention following a valid arrest may present a viable section
1983 claim where the detainee protests the detention on the basis
of misidentification.” Case,
Both Cannon and this case concern a valid arrest accompa-
nied by a later, unconstitutional detention. Just as Sosa was ar-
rested roadside on an outstanding warrant, Parrott was arrested at
*49
a roadside rest area after a deputy established probable cause. The
deputy in Cannon established probable cause after receiving an
NCIC “hit” advising that Kentucky wanted a woman with an alias
of Mary Parrott. Cannon,
In short, a warrant established the probable cause in Sosa’s case while an NCIC information established the probable cause in Cannon. That is a distinction without a difference for a claim aris- ing from an unconstitutional overdetention. Rather, what matters is that both Sosa and Parrott were validly arrested based on proba- ble cause. And after that happened, they were transported to the jail, where their jailers were deliberately indifferent to the many indications that Sosa and Parrott were not their sought-after name doppelgangers.
The Majority Opinion’s second fact-bound attempt to wrig-
gle out of Cannon’s holding—“the Cannon detainee was held for
seven days”—fares no better. True, Parrott was held for seven
days, while Sosa was held for three. But the right Cannon recog-
nizes—the “right to be free from continued detention after it was
or should have been known that the detainee was entitled to re-
lease,” Cannon,
And here—especially given this appeal’s posture, which re- quires us to view Sosa’s allegations in the light most favorable to him—it’s clear that the officers knew or should have known that Sosa was not the wanted Sosa well before three nights and days passed. We know this because, during Sosa’s arrest in 2014 on the same warrant, the same sheriff’s office fingerprinted and released him no more than three hours after detaining him.
If the deputies’ knowledge was enough to alert them within three hours that they had the wrong Sosa in 2014, the deputies’ knowledge was enough to alert them of that same problem in 2018 well before three nights and three days passed. In fact, in 2018, the deputies had even more reason to know that they had the wrong Sosa: unlike in 2014, Sosa told the officers that their office had pre- viously made the same mistake when they arrested him on the 7 As I explain later in this dissent, see infra at 23–24, it makes no sense—and has no constitutional grounding—to base a constitutional right on some arbi- trary amount of time that the Majority Opinion has plucked out of a hat. *51 same warrant in 2014. Plus, the 1992 warrant had only gotten older by 2018, increasing the need to confirm Sosa’s identity. And based on his 2014 experience, in 2018, Sosa was able to explain to officers that he knew he did not match the wanted Sosa’s identifiers. Yet despite these added indicators that they had the wrong man, Mar- tin County deputies held Sosa not for three hours but for three days.
So here, whether Sosa was held for three days or seven days makes no difference to whether the officers violated Sosa’s consti- tutional rights when they continued to detain him after they knew or should have known that he was entitled to release: in both cases, the jailers knew or should have known well before the passage of the entire detention period that the person detained was entitled to release.
To sum up, then, I can’t say it better than the Majority Opin- ion: “If we treated every factual distinction from a precedential de- cision as necessarily material, the doctrine of precedent would lose most of its function.” Maj. Op. at 9 (citations omitted). The Ma- jority Opinion’s efforts to distinguish Cannon fail because the two factual distinctions it invokes are irrelevant to Cannon’s analysis. So the prior-precedent rule requires the conclusion that Cannon controls Sosa’s case.
2. Baker does not require—or even support—the conclusion that Sosa had no Fourteenth Amendment due-process right to be free from continued detention when it was or should have been known that he was entitled to release. Given this failure to circumvent our controlling precedent, the Majority Opinion tries another tack. In its second effort, the Majority Opinion misreads Baker and once again invokes immate- rial facts—this time to argue that Baker supports the decision the Majority Opinion arrives at and precludes the answer I reach. But Baker neither supports the Majority Opinion’s answer nor pre- cludes mine.
According to the Majority Opinion, “[u]nder Baker, no vio- lation of due process occurs if a detainee’s arrest warrant is valid and his detention lasts an amount of time no more than the three days that [the Baker plaintiff] was detained.” Maj. Op. at 8. Of course, Sosa was arrested on a valid arrest warrant, and his deten- tion lasted for three nights and days, so the Majority Opinion points to these two facts and declares “mission accomplished” in rejecting Sosa’s position. But the Majority Opinion declares victory too soon. Below, I explain why each of the two factual similarities be- tween Baker and Sosa’s case—the existence of an arrest warrant and a detention for three days—are immaterial to Baker’s reason- ing and outcome, and why Baker’s reasoning actually requires us to conclude that the jail deputies here violated Sosa’s constitutional rights.
I start with the three days. As we explained in Cannon, Baker “recognized . . . that after the lapse of a certain amount of time, continued detention in the face of repeated protests will de- prive the accused of liberty without due process.” Cannon, 1 F.3d at 1562. The Majority Opinion says Baker holds that three days can never be enough to qualify as a constitutional deprivation. See Maj. Op. at 8.
But the Majority Opinion confuses Baker’s outcome (three days was not enough under the circumstances in Baker) with the limiting principle the Supreme Court applied to reach that out- come. In so doing, the Majority Opinion treats three days as some type of magic number that the Supreme Court arbitrarily shook out of a magic 8 ball—or, to use my colleague Judge Newsom’s terminology, “ma[d]e . . . up.” See Newsom Op. at 11.
That is not how the law works, and that is not what the Su-
preme Court did. Rather, as other courts have acknowledged, see
Lee v. City of Los Angeles,
Recognizing the limiting principle the Supreme Court em- ployed in Baker to arrive at that decision is critical to properly ap- plying Baker here or in any other case. Only after we identify that limiting principle can we apply it to the facts here to determine whether Sosa’s period of detention amounted to an *54 unconstitutional deprivation of liberty. But that’s a step the Major- ity Opinion skips.
I therefore turn to Baker’s limiting principle. Some might
think that Baker offers two possible answers. One possible limiting
principle could be viewed as simply the Sixth Amendment: that a
“detention pursuant to a valid warrant but in the face of repeated
protests of innocence will . . . deprive the accused of ‘liberty . . .
without due process of law,’” Baker,
I begin with the possible answer that the limiting principle is tied to the Sixth Amendment speedy-trial right. This possible an- swer comes from this passage in Baker, which mentions the right to a speedy trial:
Obviously, one in respondent’s position could not be
detained indefinitely in the face of repeated protests
of innocence even though the warrant under which
he was arrested and detained met the standards of the
Fourth Amendment. For the Constitution likewise
guarantees an accused the right to a speedy trial . . . .
*55
First, our binding precedent forecloses that reading of Baker.
To begin with, we certainly did not understand Baker that way in
Cannon. Not only did Parrott not invoke her speedy-trial rights,
but Cannon lacks any reference to that right. See generally Can-
non,
And second, even without considering Cannon, this reading of Baker is still wrong. That is because Baker follows its mention of the speedy-trial right with this statement:
We may even assume, arguendo, that, depending on what procedures the State affords defendants follow- ing arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of “liberty . . . without due process of law.”
443 U.S. at 145. 8 This passage does not invoke the speedy-trial
right. Rather, it recognizes that neither that right nor other post-
8 Of course, I recognize that this statement is dicta. But as we have explained,
“there is dicta and then there is dicta, and then there is Supreme Court dicta.”
Schwab v. Crosby,
This brings me to what Baker’s limiting principle actually is: a reasonableness test. The Supreme Court’s decision in Baker turned on the notion that “detention pursuant to a valid warrant but in the face of repeated protests of innocence will . . . deprive the accused of ‘liberty . . . without due process of law,’” id., when it becomes unreasonable, under the totality of the circumstances, not to verify the arrestee’s identity. Baker shows why that is so.
In Baker, Leonard McCollan obtained a duplicate of his brother—the plaintiff—Linnie’s driver’s license. Id. at 140. Leon- ard’s 9 version of the license was the same as Linnie’s in every way, except that the photo was of Leonard. Id. So when Leonard was arrested on narcotics charges, he was booked as Linnie. Id. at 140– 41. Leonard also signed documents during his arrest as Linnie and was released on bail as Linnie. Id. at 141. As a result, the police (reasonably) believed that they had arrested Linnie.
prolonged pretrial detention”); Hayes v. Faulkner Cnty.,
9 To avoid confusion, I use the McCollans’ first names in my discussion of Baker.
Then Leonard skipped bond after his release on bail, and Leonard’s bondsman procured a warrant out of Potter County, Texas, for the arrest of “Linnie Carl McCollan.” About two months later, a police officer pulled over Linnie for a traffic stop in Dallas, Texas. Id. The police officer arrested Linnie on Leonard’s warrant (issued against Linnie). Id. Linnie was then transferred to the cus- tody of the deputies in the county from where the warrant issued. Id. He remained there for three nights over the New Year’s holiday weekend, until officials, in comparing Linnie’s appearance to the file photo of the wanted person, realized that Linnie was not that man. Id. Linnie sued the county sheriff under § 1983, alleging that the county’s custody of him violated his Fourteenth Amendment rights. Id. The Supreme Court disagreed. Id. at 146–47.
In reaching this conclusion, the Court acknowledged that “one in [Linnie’s] position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant un- der which he was arrested and detained met the standards of the Fourth Amendment.” Id. at 144 (emphasis added). Then, the Court suggested that a state’s procedures or lack thereof, depend- ing on what those procedures were, could violate a detainee’s due- process right to liberty. Id. at 145. And finally, it concluded, “[W]e are quite certain that a detention of three days over a New Year’s weekend does not and could not amount to such a deprivation.” Id. (emphasis added).
In other words, in determining that Baker had not violated
Linnie’s constitutional rights when he did not release Linnie for
three days after Linnie was arrested, the Court accounted for the
peculiarities of each of the following three things: (1) Linnie’s situ-
ation; (2) the procedures the state provided to ensure Linnie was
the wanted person; and (3) the period during which Linnie was de-
tained. On its face, this, of course, is a totality-of-the-circumstances
analysis. See Lee,
In applying that totality-of-the-circumstances reasonable- ness test, the Supreme Court implicitly considered the following: (1) that Linnie’s name was on the warrant he was arrested on; (2) that Linnie’s name was on there because his brother Leonard had “masquerad[ed] as Linnie” and had a driver’s license with Linnie’s name on it when he was booked on drug charges and released on bail; and (3) that the three-day period over which Linnie was held was the three-day 1973 “New Year’s weekend.” See id. at 140–45. The first two considerations explained why determining whether Linnie was, in fact, the wanted person was not simple and straight- forward. The third consideration evaluated the reasonableness, under the circumstances, of expecting the officers to “investigate” Linnie’s claims of innocence. See id. at 145–46.
In 1972 and 1973, when Linnie was arrested and detained, that effort was significant enough that the Supreme Court referred *60 to it as a need to “investigate.” Id. at 146. No wonder. For those who weren’t around in the pre-digital days of typewriters (and Liq- uid Paper for correcting errors), “snail” mail, and records rooms filled floor to ceiling with files, I briefly detour to describe what verifying identity required back then.
In the early ‘70s, an officer who wanted to confirm that he had the right detainee first would have had to obtain a paper copy of the file for the wanted person because that’s where the wanted person’s identification information would have been located. 10 But the paper file very well might not be stored at the jail. If the jail didn’t have the file, the officer would have had to ask, and then wait, for the file to be mailed or messengered to her. Depending on the circumstances (like whether it was a three-day holiday weekend), the time that process took could vary appreciably.
And even if the officers stored the paper file on the jail prem- ises, the file likely would have been in a restricted-access records room (so law enforcement could keep track of who had the paper file at any particular time). That meant that our officer would have 10 In 1972 and 1973, even facsimile machines were not widely used and were extremely expensive (about $18,000 then). Lynn Simross, “The Fax Revolu- tion: At Home and at Work, Facsimile Machines Have Become the Essential Business Tools,” L OS A NGELES T IMES (Sept. 11, 1991), https://www.latimes.com/archives/la-xpm-1991-09-11-vw-1950-story.html. And the best ones took about six minutes to transmit a single page and weighed in at about 100 pounds. Id. Fortune 500 companies were the ones who used them. Id. This remained the case until the late 1980s. Id. *61 needed to (1) physically go to the records room and (2) hope or plan that someone would be there to sign the file out. Then, if the officer compared a photograph of the wanted person to the ar- rested person, that officer might not have been unable to make a definitive identification. So the officer might have needed to con- duct a fingerprint comparison. And if the officer had wanted to do that, he generally would have had to send the fingerprint cards of both the wanted person and the arrested person to an expert (or the FBI) for a manual comparison. Of course, that added time for physical shipment in each direction. On top of that, the expert then would have had to engage in the time-intensive process of manu- ally examining both sets of fingerprints to see whether they shared at least a certain number of the same features. This type of inves- tigation could require “weeks or months.” Maryland v. King, 569 U.S. 435, 459 (2013).
And that burden mattered in the Supreme Court’s assess-
ment of whether, under the totality of the circumstances, the ac-
tions of the Baker officers were reasonable. As the Court explained,
again showing it was applying a totality-of-the-circumstances anal-
ysis, “[d]ue process does not require that every conceivable step be
taken, at whatever cost, to eliminate the possibility of convicting
an innocent person.” Baker, 443 U.S. at 145 (emphasis added)
(quoting Patterson v. New York,
The Majority Opinion just dismisses this fact. It justifies its
refusal to acknowledge the importance of the holiday period—one
that the Supreme Court itself relied on—by saying that “detainees
have the same due-process rights on holidays as they do every
other day of the year, so the incidence of a holiday does not change
our constitutional analysis.” See Maj. Op. at 10. But we have no
business ignoring the Supreme Court’s treatment of the New
Year’s holiday period as material to its decision. After all, “the prin-
ciple of the case[] is not found in the reasons or the rule of law set
forth in the opinion, nor by a consideration of all of the ascertaina-
ble facts of the case and the judge’s decision. . . . [T]he principle of
the case is found by taking account of the facts treated by the judge
as material and his decision upon them, taking also into account
those facts treated by him as immaterial.” Tex. & P. Ry. Co. v. La.
Oil Refin. Corp.,
And more significantly, the Majority Opinion’s excuse for ignoring the Supreme Court’s reliance on the New Year’s holiday weekend in its rationale doesn’t pan out anyway: the constitu- tional right the Supreme Court identified (that detainees have on holidays and every other day) is the right to that amount of process that is reasonable under the totality of the circumstances. And as Baker indicates, what is reasonable during a New Year’s weekend may be quite different from what is reasonable during a non-holi- day period.
New Year’s weekend is known for being a time when, tradi- tionally, less essential public services are not fully staffed. So during that holiday period, it was unreasonable to expect officers operat- ing in a lightly staffed jail to leave the jail to physically locate the file on Leonard (or find an officer outside the jail to retrieve the file and take it to the jail), review it, compare the photograph of the wanted individual to Linnie, possibly analyze the fingerprints, and recognize that the two were different people. But as I discuss be- low, now, confirming identity is worlds easier and faster (and re- quires far less effort).
Other courts have also recognized that the nature of the par-
ticular three-day period for which Linnie was detained mattered to
the Supreme Court’s conclusion that the sheriff in Baker did not
violate Linnie’s constitutional rights. For example, in Patton v.
Przybylski, the Seventh Circuit construed Baker as having dis-
counted non-business days in determining the length of the period
the Baker jailers had to confirm Linnie’s identity.
Yet in a single, conclusory sentence, the Majority Opinion announces, “Nor did the Court rely on the unstated ‘limiting prin- ciple’ of reasonableness that our dissenting colleague has discerned from Baker.” Maj. Op. at 9 (citation omitted). The Majority Opin- ion fails to grapple with the Court’s deliberate word choices and analysis showing that it applied a reasonableness-under-the-total- ity-of-the-circumstances test. Instead, as I’ve mentioned, it asks us to consider only Baker’s result while disregarding the rest of the opinion as though it is fluff. Based on the Majority Opinion’s inter- pretation of Baker, the Supreme Court arrived at an unreasoned conclusion that three days’ detention after a valid arrest can never, under any circumstances, be enough to state a constitutional claim, and it did so by applying no rule, instead engaging in a judicial game of magic 8 ball. Most respectfully, I cannot agree to do that. The Supreme Court’s Baker analysis is reasoned, and we must abide by the reasoning that animates it.
When we apply Baker’s reasonableness-under-the-totality- of-the-circumstances limiting principle here, we must conclude that Sosa has stated a constitutional claim. Six facts make the cir- cumstances in this case differ materially from those in Baker—all in ways that favor Sosa’s claim. 11 Indeed, even the Majority Opinion 11 The Newsom Concurrence points to these six differences between Baker and Sosa’s case as evidence of the “freewheelingness” of the substantive-due- process analysis. Newsom Conc. at 6. But totality-of-the-circumstances tests (which necessarily depend on the factual circumstances of the given case) like the limiting principle that controls Baker are not unique to substantive-due- *65 does not argue that Sosa’s claim fails under a reasonableness-under- the-totality-of-the-circumstances test. So we turn to the six mate- rial differences.
First, Sosa was arrested and detained in 2018, not 1972 and
‘73. While fingerprinting was standard practice upon booking at
both times, 12 confirming identity was a lot more time-consuming
in 1972 and ‘73 than it was in 2018. Unlike the labor-intensive,
process analysis in constitutional law. Totality-of-the-circumstances tests also
govern the analysis when a litigant raises an allegation of the violation of cer-
tain enumerated constitutional rights. The Fourth Amendment provides a
good example. We determine whether a search or seizure is constitutionally
permissible under the Fourth Amendment by evaluating the totality of the
circumstances. See, e.g., Club Madonna Inc. v. City of Miami Beach, 42 F.4th
1231, 1250 (11th Cir. 2022). We also assess excessive-force claims under the
Fourth Amendment by looking to reasonableness under the totality of the cir-
cumstances. Tillis on behalf of Wuenschel v. Brown,
12 See, e.g., Police Booking Procedure,
F IND L AW ,
https://www.findlaw.com/criminal/criminal-procedure/booking.html (last
visited Jan. 19, 2023); see also King,
multi-day process in the early ‘70s, in 2018, pressing a button on the computer to see if a detainee’s fingerprints matched a wanted person’s fingerprints was all it took to confirm identity.
That is so because the FBI launched the Integrated Auto-
mated Fingerprint Identification System (“IAFIS”) in 1999. King,
As particularly relevant here, NGI has a rapid search func- tion that is accessible to law-enforcement officers nationwide. Next Generation Identification (NGI), FBI, https://le.fbi.gov/sci- ence-and-lab-resources/biometrics-and-
*67 fingerprints/biometrics/next-generation-identification-ngi (last visited Jan. 19, 2023). Notably, that function allows for fingerprints from a detainee to be compared to those in a “national repository of wants and warrants” and has “response times of less than 10 sec- onds.” Id. (emphasis added). So unlike in 1972, when the process could have required “weeks or months,” in 2018, an officer like Sosa’s jail deputies could confirm an identity (or as relevant here, clear up a misidentification) with less than a minute’s work. 13
Second, the circumstances here also differ from those in Baker in that no one “set up” Sosa the way that Leonard did his brother Linnie. In Baker, the officers who put out the be-on-the- lookout warning thought they were, in fact, looking for Linnie. But in Sosa’s case, the officers were not under the mistaken impres- sion that they were looking for Sosa; they were simply looking for someone with the name “David Sosa.” That is, the officers weren’t purposefully misled the way the Baker officers were.
That difference is key. When a person has been framed—or
even when officers otherwise mistakenly believe the wrong person
has committed a crime—a substantive “investigation,” in the Su-
preme Court’s words, Baker,
But when officers never believed they were looking for the arrested person and arrested him only because they misidentified him as the person they were looking for, no “investigation” to clear up the mistake is necessary. See Investigation, O XFORD D ICTIONARIES , https://premium.oxforddictionaries.com/us/defi- nition/american_english/investigation (last visited Jan. 19, 2023) (describing an “investigation” as “[a] formal inquiry or systematic study”). Rather, a simple NGI fingerprint comparison definitively, easily, and quickly resolves the misunderstanding. And because fingerprinting is standard operating procedure in American jails to- day, performed for the very purpose of identifying detainees, ex- pecting jailers to engage in this activity imposes no additional bur- den on them.
The third circumstance that distinguishes this case from Baker is that Sosa’s arrest occurred in Florida 26 years after Texas issued the warrant he was arrested on, while Linnie’s happened only two months after Leonard skipped bail in the same state. That lapse of time and geographical difference further amplified the like- lihood in Sosa’s case that an identity error may have occurred.
Fourth, unlike Linnie, Sosa matched almost none of the identifiers for the wanted Sosa. And he repeatedly advised officers *69 of this fact and that they had previously mistakenly arrested him on the same warrant just a few years earlier.
Fifth, Sosa’s name is much more common than Linnie’s— there were thousands of “David Sosas” in the United States during the relevant period. That made it statistically far less likely that any particular arrested person named “David Sosa” would be the wanted Sosa than that Linnie McCollan was the wanted Linnie McCollan. Given the thousands of David Sosas in the United States (and especially in light of Sosa’s protests and the differences in iden- tifiers between Sosa and the wanted Sosa), the officers’ chances of getting selected to play Jeopardy! would have been greater than their chances of having the correct David Sosa in custody. 14
And sixth, though two of the days Sosa was imprisoned fell over the weekend, 15 unlike in Baker, no holiday was involved. Nor is there any other indication that the jail was understaffed in com- parison to other days (and certainly not so understaffed as not to 14 According to now-Jeopardy! host Ken Jennings, “it’s 10 times harder to get on ‘Jeopardy!’ than to get into Yale.” See Lottie Elizabeth Johnson, The online ‘Jeopardy!’ test is about to happen and Ken Jennings is here to help you suc- ceed, D ESERET N EWS (Apr. 4, 2019), https://www.deseret.com/2019/4/4/20670100/the-online-jeopardy-test-is- about-to-happen-and-ken-jennings-is-here-to-help-you-succeed#in-advance- of-the-online-jeopardy-test-which-is-available-april-9-11-jeopardy-legend-ken- jennings-shared-test-taking-tips-with-the-deseret-news. 15 Sosa was arrested on a Friday—a weekday—and released at 3:00 p.m. on a Monday.
be able to run a ten-second fingerprint comparison), as the Su- preme Court’s remark about the “three-day holiday weekend” re- flects it concluded the jail likely was in Baker.
So when we apply Baker’s limiting principle—the time after
which “detention pursuant to a valid warrant but in the face of re-
peated protests of innocence will . . . deprive the accused of ‘liberty
. . . without due process of law,’” Baker,
In sum, unlike in Baker, no one was trying to trick the offic- ers into thinking Sosa was the wanted Sosa; the several signs sug- gesting that Sosa was not the wanted Sosa practically hit the offic- ers over the head; the officers could have easily confirmed that Sosa was not the wanted Sosa with less than a minute of an officer’s time engaging in a standard jail operating procedure; and nothing in the record reveals that the jail was short-staffed or was experiencing any kind of crisis during the period Sosa was there. Under these circumstances, it was simply unreasonable for the officers to have waited three nights and three days while Sosa sat in jail before they even tried to confirm Sosa’s identity. 16
16 Of course, because Baker applies a totality-of-the circumstances test, some circumstances might justify longer periods of detention before identity
The Majority Opinion errs because it does not bother to de- termine and apply Baker’s limiting principle. Rather, it rigidly in- sists on substituting the result Baker reached after applying its lim- iting principle—that the three days in Baker did not violate Linnie’s rights—for the limiting principle itself. Then, it incorrectly de- scribes the results of Baker’s application of its limiting principle as the limiting principle itself: that three days can never violate a de- tainee’s constitutional rights. And because Sosa spent three days in jail, the Majority Opinion incorrectly concludes that Baker pre- cludes the finding that the jail officers violated Sosa’s constitutional rights.
Properly read, though, Baker and its reasonableness-under- the-totality-of-the-circumstances principle support the conclusion that Sosa sufficiently alleged that Sanchez and the other jailers vio- lated his constitutional rights. After all, despite strong reason to suspect Sosa was not the wanted Sosa, the officers refused for three nights and three days to invest less than a minute of work to con- firm Sosa’s identity, while all the time, Sosa remained in jail. Under the totality of the circumstances, that is not just unreasonable but extraordinarily so. And Baker’s limiting principle does not tolerate it.
confirmation. For example, confirming identity on the date of arrest might not be reasonable in situations where a prolonged power outage persisted, a natural disaster with life-safety issues occurred, or an unavoidable lack of staff that potentially jeopardized safety happened.
B. Sosa’s Fourteenth Amendment due-process right to be free from continued detention when it was or should have been known that Sosa was entitled to release was clearly estab- lished when the Martin County jailers violated it. Because Sosa sufficiently alleged that Sanchez and the other jail deputies violated his Fourteenth Amendment due-process rights under our precedent, I next consider whether that right was clearly established when the alleged violation occurred. I conclude that it was.
A right is clearly established when “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (cleaned up). So though the Su- preme Court or we need not have held “the very action in ques- tion” to be unlawful, the unlawfulness of the action “must be ap- parent” under the law in existence at the time of the violation. Id. at 1312 (cleaned up).
As relevant here, we have recognized that a plaintiff can
show that a constitutional right was clearly established when the
violation occurred by pointing to “a broader, clearly established
principle [that] should control the novel facts” of the case under
review. Keating v. City of Miami,
In satisfying the burden to prove his right was clearly estab-
lished, the plaintiff must rely on “law as interpreted by the Supreme
Court, the Eleventh Circuit, or the Supreme Court of Florida.”
Keating,
Here, Cannon recognized “[t]he constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release.” Cannon, 1 F.3d at 1563. We also held in Cannon that the deputy’s “failure [there] to take any steps to identify [the detained person] as the wanted fugitive was sufficient to raise a question of fact as to his deliberate indifference toward [the detained plaintiff’s] due process rights.” Id. at 1564.
These principles we announced more than 25 years before
the jail deputies encountered Sosa in 2018 control Sosa’s case and
put the deputies on notice. They require a showing of two things:
(1) the officer had good reason to know that he had a misidentified
person wrongly in custody, and (2) despite that knowledge, he did
nothing to confirm the person’s identity as the wanted person. See
Cannon,
First, Sosa alleged that (a) he matched almost none of the identifiers for the wanted Sosa; (b) he repeatedly advised Sanchez and other jail deputies that he matched almost none of the identifi- ers for and was not the wanted Sosa; (c) he repeatedly told these same deputies that their Sheriff’s Office had previously mistakenly arrested him on the same warrant a few years earlier; (d) and these deputies acknowledged to him at the time he was booked into the jail that they would look into it. Second, despite knowing of the substantial likelihood that Sosa was not the wanted Sosa and prom- ising to address that concern, for three nights and days, Deputy Sanchez and the other jail deputies took no action to identify Sosa as the wanted Sosa. Instead, they decided to remain deliberately indifferent to Sosa’s entitlement to release. And they did that even though they could have confirmed that he was not the wanted Sosa in under a minute. The deputies’ deliberate indifference here maps directly and specifically onto the principles we announced in Can- non. Indeed, the type of deliberate inaction that the deputies en- gaged in is precisely the type we denounced in Cannon.
Cannon informed these deputies that they were violating
Sosa’s rights as soon as they knew they had strong reason to believe
Sosa was not the wanted Sosa and they chose to do nothing. 17 Cf.
Patel v. Lanier Cnty.,
Not only that, but at least five of our sister circuits have rec-
ognized that Cannon established “[t]he constitutional right to be
free from continued detention after it was or should have been
known that the detainee was entitled to release.” See, e.g., Russo,
a Fourteenth Amendment due process right ‘to be free from con-
tinued detention after it was or should have been known that the
detainee was entitled to release.’”); Schneyder,
In sum, over the past 30 years, we have repeatedly reaf-
firmed Cannon’s principle that detainees have a “constitutional
right to be free from continued detention after it was or should
have been known that the detainee was entitled to release,” and
even our sister circuits have recognized that Cannon established
that right. Given these facts, our precedent “placed the . . . consti-
tutional question beyond debate.” Reichle,
For these reasons, I would reverse the district court’s dismis- sal of Sosa’s overdetention claim and remand for further proceed- ings.
III. The right to be free from continued detention after it was
known or should have been known that the defendant was en- titled to be released should be rehomed as a Fourth Amend- ment right.
As I’ve explained, our precedent long ago clearly established the substantive-due-process right to be free from continued deten- tion when it was known or should have been known that the per- son was entitled to release. See supra at Section II. But if we were *78 writing on a clean slate, I would conclude that this right finds its home in the Fourth Amendment. 18
The Fourth Amendment protects against “unreasonable . . . seizures.” U.S. Const. amend. IV. As the Supreme Court has ex- plained, the “touchstone of the Fourth Amendment is ‘reasonable- ness.’” Brigham City v. Stuart, 547 US. 398, 403 (2006). And sei- zures—including those of the person—that are not supported by probable cause are unreasonable.
18 As I’ve noted, it makes no difference to the qualified-immunity analysis
where the right lives, as long as the right was clearly established before the
deputies’ actions (or inactions, in this case). See supra at n.6 (citing Russo, 479
F.3d at 208–09; Wilson,
When we speak of probable cause, we refer to the existence
of “facts and circumstances sufficient to warrant a prudent man in
believing that the suspect had committed . . . an offense.” Gerstein
v. Pugh,
In making that assessment, once again, reasonableness is our
guiding light. We look to “the totality of the circumstances to de-
termine the reasonableness of the officer’s belief” that the suspect
is, in reality, the person sought in the warrant. See Paez v. Mulvey,
Because reasonableness under the circumstances drives our
determination of whether probable cause exists in any particular
situation, the Supreme Court has described probable cause as a
*80
“flexible, common-sense standard.” Gates,
So, for example, in a roadside arrest on a warrant—where an officer’s safety can be very much at issue and an officer may be alone or present with only one other officer—the probable-cause standard for ensuring the arrested person is the wanted person re- quires less from officers. See, e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1347 n.15 (11th Cir. 2002) (“Trials of guilt or innocence can- not be undertaken by police officers on the side of the road in the middle of the night before an officer can effect a lawful arrest pur- suant to a valid warrant.”). For this reason, under our precedent, Deputy Killough’s roadside arrest of Sosa on the wanted Sosa’s warrant satisfied probable cause, even though Sosa matched only the name, sex, and race of the wanted Sosa.
But in a non-emergency situation, when an officer has more
time and resources available to ensure she is arresting the person
whom the warrant actually seeks, the probable-cause standard de-
mands more. See, e.g., Tillman,
To be sure, the Supreme Court has said that “the probable cause standard for pretrial detention is the same as that for arrest.” Baker, 443 U.S. at 143. But for four reasons, under the Fourth Amendment, that cannot excuse jailers from timely verifying the identity of those in custody when they can reasonably do so.
First, a lot has changed since the 70s, when the Supreme Court issued Baker, but it remains the case that the lifeblood of the Fourth Amendment continues to be reasonableness. And “reason- able” now means the same thing it did when the Fourth Amend- ment was adopted: “agreeable to the Rules of Rea[s]on; ju[s]t, right, con[s]cionable.” Compare Reasonable, N. Bailey, U NIVERSAL E TYMOLOGICAL E NGLISH D ICTIONARY (1770), with Reasonable, B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (“1. Fair, proper, or mod- erate under the circumstances; sensible <reasonable pay>.”).
So in 1972 or ‘73, asking a jail deputy to drop everything to fetch a physical file, send off fingerprints, and wait for confirmation of identity was unreasonable because (1) it required a lot of time that deputies needed for their other responsibilities, and (2) engag- ing in this exercise wouldn’t have confirmed identity with certainty for weeks or months. But now, running a fingerprint comparison requires less than a minute of work for a jail deputy, and its results can definitively prove that an arrestee is or is not the wanted per- son. As a result, refusing to perform such a comparison before sub- jecting an arrested person to days and nights in jail simply isn’t *82 “just, right, or conscionable,”—i.e., “reasonable,”—and it doesn’t comply with the Fourth Amendment’s promise against “unreason- able” seizures.
That changes the Fourth Amendment reasonableness calcu-
lus considerably. Take this case, for instance. As a reminder, Sosa
was arrested because he shared the same name, sex, and race as the
wanted Sosa. But so did thousands of other people. And while,
under our precedent, that satisfies probable cause for roadside-ar-
rest purposes, it is certainly not the type of “safeguard . . . from rash
and unreasonable interferences with privacy and from unfounded
charges of crime,” Gerstein, 420 U.S. at 112, that the Fourth
Amendment’s reasonableness standard anticipates when defini-
tively exculpatory identity information is instantaneously available
to jail deputies. Indeed, jailing the wrong person for three nights
and days when it is now possible to instantaneously and easily de-
termine that he is not wanted has to be pretty high up on the list of
“unreasonable interferences with privacy and . . . unfounded
charges of crime” that the Fourth Amendment protects against.
Id.; see also Carpenter v. United States,
So if the Fourth Amendment’s reasonableness standard
means anything, it cannot tolerate confining an innocent person to
a jail cell for three nights and three days (based solely on the fact
that he shares common characteristics without thousands of other
men), when a ten-second fingerprint comparison could definitively
reveal that the arrestee is not the wanted person. By any measure,
that is outrageously unreasonable. And it is hard to see how legal
process in the form of a valid warrant for some David Sosa—when
thousands exist and Sosa matched only the wanted Sosa’s name,
sex, and race—could satisfy the Fourth Amendment for purposes
of continuing to detain Sosa for days after the jail deputies reason-
ably could have confirmed that Sosa was not the wanted Sosa. Cf.
Manuel v. City of Joliet,
Second and relatedly, the Fourth Amendment’s concept of probable cause inherently requires identity confirmation at the ear- liest reasonable time to support an ongoing seizure of a person— especially when the person is arrested in an emergency type of sit- uation. As I’ve noted, our precedent finds probable cause satisfied in a situation like Sosa’s roadside arrest. The Supreme Court has *84 explained these types of seizures in part by pointing to roadside ar- rests of individuals like Timothy McVeigh and Joel Rifkin, see King, 569 U.S. at 450–51—in other words, the balance of law-enforce- ment and public-safety needs against individuals’ rights favors ar- rest in these circumstances.
But once the arrested person is brought to jail, that more generalized standard of probable has served its purpose: it has de- tained the person long enough for the jail deputies to confirm his identity as a wanted person. And if we’re being candid, that type of roadside probable cause—where the arrested person matches only the wanted person’s name, sex, and race—isn’t really much of a basis for a reasonable belief that the arrested person is actually the wanted individual. So if the Fourth Amendment’s guarantee against “unreasonable” seizures has teeth, it requires reasonable identity confirmation before continued detention.
Third, the Supreme Court has recognized that blind adher-
ence to past practices can, in the face of new technology, defy con-
stitutional guarantees under the Fourth Amendment. Consider
cell phones, for example. In Riley v. California,
The same is true here. Blindly allowing arrestees to be de- tained for days even though new technology allows a jail deputy to reasonably confirm in less than a minute that the detainee is not the wanted person violates the Fourth Amendment’s guarantee of security “against unreasonable . . . seizures.” U.S. Const. amend. IV.
And fourth, historically, federal courts have recognized the
importance of identity confirmation early in the criminal-justice
process. In this respect, federal courts have treated identification
confirmation of at least some type—limited as that ability has been
on short notice in earlier times—as critical before a magistrate
judge can order a person arrested on a valid warrant transferred to
19 Under the “third-party doctrine,” the government, without a warrant, can
obtain items like bank records for a subject from a third-party witness like a
bank. See Miller,
It is also no answer to the continued unreasonable detention of an arrestee when a reasonable identity check would reveal his innocence that the detainee will, at some later point or points, ap- pear before a magistrate judge or other judicial official. That is so for two reasons.
First, even without considering what might or might not happen in front of the judicial official, insisting that a misidentified person wait until at least her initial court appearance before even the possibility of release still requires the misidentified person to spend days and nights in jail before she gets to go to court. And for what purpose? Given the ease with which a jailer can confirm that the arrested person is not the wanted person, the continued seizure *87 of the person for days and nights is simply unreasonable under the Fourth Amendment.
Second, appearing before a judicial officer provides no guar-
antee of release when a person has been misidentified and no one
has confirmed his identity. And even when it results in release, that
release is not immediate. After all, judicial officers don’t have the
means in court to confirm a person’s identity. Rather, all they can
do is instruct the government to have the person’s fingerprints
compared to those of the wanted person. But the deputy cannot
do so until after all arrestees have their court appearances and the
deputy is able to return to the jail with the arrestees. It makes no
sense (and isn’t reasonable) that a protesting detainee’s identity
need not be confirmed until after a judicial officer orders a jailer to
do what the jailer reasonably could and should do in the first in-
stance. Cf. Malley v. Briggs,
Plus, sometimes, as in Sosa’s case (where his jailers in- structed him that he could not speak), detainees don’t know that they can speak at appearances. And even when they do, judicial officers who don’t know what the arrestee is going to say and who are trying to protect the arrestee’s Fifth Amendment rights often *88 suggest that the arrestee not speak without conferring first with an attorney—which often, the arrestee will not have. Most people comply in court with what a judge suggests.
Nor does bail solve the problem. Consider Sosa’s case. If a judicial officer thinks that a person has been on the run from crim- inal charges for 26 years and has moved to another state to avoid them, how likely is it that the judicial officer will deem bail a good idea? Plus, even when the court grants bail, it can be days before that happens and a detained person can post it—days in jail (and the potential expenditure of money to be able to post bail) that could have been prevented if the jail deputies ran a simple finger- print comparison.
Ultimately, the Fourth Amendment promises protection
“against unreasonable . . . seizures.” U.S. Const. amend. IV. And
by any real-world standard, confining an innocent person to jail for
days based on no more than that he shares the same name, sex, and
race with thousands of others is an “unreasonable . . . seizure[],”
id., when a ten-second fingerprint comparison could definitively
show he is entitled to release. So I would join the Second and Third
Circuits in concluding that the right to be free from continued de-
tention once it was or should have been known that the detainee
was entitled to release dwells within the Fourth Amendment’s shel-
ter against “unreasonable . . . seizures.” See Russo,
IV. Cannon and its progeny make this a very easy case: they require us to conclude that Sanchez and the other jail deputies vio- lated Sosa’s clearly established substantive-due-process right to be free from continued detention when they knew or should have known that he was entitled to release. But even in the absence of our binding precedent, the Fourth Amendment cannot tolerate de- tention for days when jail deputies have the means available to de- finitively and easily determine that the person in custody is not the wanted person. Any other conclusion reads the Fourth Amend- ment’s prohibition on “unreasonable” seizures out of the Constitu- tion. I respectfully dissent.