Petition for Writ of Certiorari — David Sosa, Petitioner v. Martin County, Florida, et al.

Supreme Court briefMay 22, 2023

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No. 22-

In the Supreme Court of the United States

DAVID SOSA,

PETITIONER

MARTIN COUNTY, FLORIDA, ET AL.,

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS OF THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RANDALL KALLINEN

ALEX JOHNSON

KALLINEN LAW PLLC

511 Broadway Street

Houston, TX 77012

XIAO WANG

Counsel of Record

NORTHWESTERN SUPREME

COURT CLINIC

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-1486

x.wang@law.northwestern.edu

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Baker v. McCollan, 443 U.S. 137, 145 (1979), held

that mistaken “detention pursuant to a valid warrant

but in the face of repeated protests of innocence”

violates the Constitution.

The en banc Eleventh Circuit’s application of

Baker to this case presents two questions for review.

1. Does Baker’s right against overdetention

require courts to apply a reasonable, totalityof-the-circumstances analysis, or does the case

only protect against mistaken overdetention

for longer than three days?

2. Does Baker’s right against overdetention fall

under the Fourth Amendment’s proscription

against unreasonable searches and seizures, or

the Fourteenth Amendment’s guarantee of

substantive due process?

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

David Sosa, petitioner on review, was the movantappellant below.

Martin County, Florida; Sheriff William Snyder;

Deputy M. Killough, and Deputy Sanchez, respondents on

review, were the respondents-appellees below.

No party is a corporation.

iii

RULE 14.1(B)(III) STATEMENT

This case arises from the following proceedings in the

United States District Court for the Southern District of

Florida and the United States Court of Appeals for the

Eleventh Circuit:

Sosa v. Snyder, 2020 WL 6385696 (S.D. Fla. June 25,

2020)

Sosa v. Martin County, 13 F.4th 1254 (11th Cir. 2021)

Sosa v. Martin County, 57 F.4th 1297 (11th Cir. 2023)

(en banc)

TABLE OF CONTENTS

Questions presented for review.................................................... i

Table of authorities ....................................................................... v

Petition for writ of certiorari ....................................................... 1

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional and statutory provisions ..................................... 1

Introduction................................................................................... 4

Statement of the case ................................................................... 7

A. Factual background......................................................... 7

B. Proceedings below ........................................................... 9

Reasons for granting the petition ............................................. 15

I. Courts are divided on whether Baker imposes a brightline rule or a reasonableness analysis. ............................... 15

A. Most courts read Baker to require a detailed, factspecific, totality-of-the-circumstances analysis. ......... 15

B. A handful of courts, including the Eleventh Circuit,

read Baker in a far more cramped, formalistic

manner. ........................................................................... 20

II. Courts are divided on whether overdetention claims

arise under the Fourteenth or Fourth Amendment......... 23

A. A growing number of courts home overdetention

claims under the Fourth Amendment. ........................ 24

B. Some courts continue to review overdetention

under the Substantive Due Process Clause. ............... 25

III. This case is an excellent vehicle for review. ...................... 27

A. Qualified immunity does not preclude review. ........... 27

B. This case demonstrates why qualified immunity

should be reconsidered.................................................. 29

Conclusion ................................................................................... 32

TABLE OF AUTHORITIES

Page(s)

Cases

Albright v. Oliver,

510 U.S. 266 (1994) .......................................................... 23

Alvarado v. Bratton,

299 F. App’x 740 (9th Cir. 2008) .............................. 17, 18

Amore v. Novarro,

624 F.3d 522 (2d Cir. 2010)............................................. 29

Andujar v. City of Boston,

760 F. Supp. 238 (D. Mass. 1991) .................................. 18

Baker v. McCollan,

443 U.S. 137 (1979) .......................... 1, 5, 11, 12, 15, 18, 23

Berg v. County of Allegheny,

219 F.3d 261 (3d Cir. 2000)....................................... 19, 24

Brigham City v. Stuart,

547 U.S. 398 (2006) .................................................... 25, 26

Buenrostro v. Collazo,

777 F. Supp. 128 (D.P.R. 1991) ...................................... 18

Buenrostro v. Collazo,

973 F.3d 49 (1st Cir. 1992).......................................... 5, 18

Cannon v. Macon County,

1 F.3d 1558 (11th Cir. 1993) ..................................... 10, 21

Cox v. Wilson,

971 F.3d 1159 (10th Cir. 2020) ....................................... 31

Dobbs v. Jackson Women’s Health Organization,

142 S. Ct. 2228 (2022) ................................................ 25, 29

Fairley v. Luman,

281 F.3d 913 (9th Cir. 2002) ........................................... 17

Gant v. County of Los Angeles,

772 F.3d 608 (9th Cir. 2014) ........................................... 17

Garcia v. County of Riverside,

817 F.3d 635 (9th Cir. 2016) ....................................... 5, 16

Graham v. Connor,

490 US. 386 (1989) ................................................. 5, 23, 24

Harewood v. City of New York,

2012 WL 12884356 (E.D.N.Y. Feb. 10, 2012) ......... 19, 20

Harris v. Payne,

254 F. App’x 410 (5th Cir. 2007) .............................. 20, 25

Hayes v. Faulkner County,

388 F.3d 669 (8th Cir. 2004) ........................................... 25

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ................................................ 29, 30

vii

Jefferson v. Lias,

21 F.4th 74 (3d Cir. 2021) ......................................... 31, 32

Jones v. Sandusky County, Ohio,

541 F. App’x 653 (6th Cir. 2013) .................................... 28

Kelly v. Jones,

148 F. Supp. 3d 395 (E.D. Pa. 2015) .............................. 19

Kennell v. Gates,

215 F.3d 825 (8th Cir. 2000) ........................................... 19

Kerns v. Bader,

663 F.3d 1173 (10th Cir. 2011) ....................................... 28

Kisela v. Hughes,

138 S. Ct. 1148 ........................................................... 30, 31

Lee v. City of Los Angeles,

250 F.3d 668 (9th Cir. 2001) ............................... 17, 18, 20

Manzanares v. Roosevelt County Adult Detention

Center,

331 F. Supp. 3d 1260 (D.N.M. 2018) ............................. 31

Martinez v. Santiago,

51 F.4th 258 (7th Cir. 2022) ............................................ 25

McDonald v. City of Chicago,

561 U.S. 742 (2010) .................................................... 26, 27

McKinney v. City of Middletown,

49 F.4th 730 (2d Cir. 2022) ............................................. 31

viii

New York State Rifle & Pistol Association, Inc. v.

Bruen,

142 S. Ct. 2111 (2022) ...................................................... 27

National Rifle Association of America, Inc. v. City

of Chicago,

567 F.3d 856 (7th Cir. 2009) ........................................... 26

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

572 U.S. 545 (2014) .......................................................... 29

Patton v. Przybylski,

822 F.2d 697 (7th Cir. 1987) ........................................... 16

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................................... 27

Pinkston v. Kuiper, 2023 WL 3274644

(5th Cir. 2023) ............................................................ 23, 24

Rodriguez v. Farrell,

280 F.3d 1341 (11th Cir. 2002) ....................................... 10

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023) ............................................ 30

Ross v. Blake,

578 U.S. 632 (2016) .......................................................... 29

Russo v. City of Bridgeport,

479 F.3d 196 (2d Cir. 2007)................................... 5, 19, 24

Safar v. Tingle,

859 F.3d 241 (4th Cir. 2017) ..................................... 24, 25

Seales v. City of Detroit,

724 F. App’x 356 (6th Cir. 2018) .................................... 25

Stalter v. State,

86 P.3d 1159 (Wash. 2004) .............................................. 20

Thompson v. Clark,

142 S. Ct. 1332 (2022) ................................................ 27, 28

Torres v. Madrid,

141 S. Ct. 989 (2021) ........................................................ 28

Werner v. Wall,

836 F.3d 751 (7th Cir. 2016) ........................................... 29

Zadeh v. Robinson,

902 F.3d 483 (5th Cir. 2018) ........................................... 31

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ...................................................... 12

Statutes and Constitutional Provisions

28 U.S.C. § 1254 .................................................................... 1

42 U.S.C. § 1983 .................................. 2, 9, 12, 18, 19, 27–30

U.S. Const. amend. IV ...................... 1,2, 5, 9, 13, 15, 23–28

U.S. Const. amend. XIV ................ 2, 5, 9, 10, 15, 23–26, 28

Other Authorities

Wayne A. Logan, A House Divided: When State and

Lower Federal Courts Disagree on Federal

Constitutional Rights,

90 Notre Dame L. Rev. 235 (2014) ................................ 20

William Baude, Is Qualified Immunity Unlawful?,

106 Calif. L. Rev. 45 (2018) ............................................ 30

Ilan Wurman, Qualified Immunity and Statutory

Interpretation,

37 Seattle U. L. Rev. 939 (2014) .................................... 12

Alexander A. Reinert, Qualified Immunity’s Flawed

Foundation,

111 Calif. L. Rev. 201 (2023) .......................................... 30

PETITION FOR WRIT OF CERTIORARI

David Sosa respectfully petitions for a writ of certiorari

to review the judgment and opinion of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the en banc Eleventh Circuit is

published at 57 F.4th 1297 and is reproduced in the

appendix to this petition at Pet. App. 1a–76a. The panel

opinion of the Eleventh Circuit is published at 13 F.4th

1254 and is reproduced at Pet. App. 79a–137a. The order

of the district court is unpublished and is reproduced at

Pet. App. 138a–150a.

JURISDICTION

The Eleventh Circuit, sitting en banc, issued its opinion

and judgment on January 29, 2023. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The Fourth Amendment of the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects,

against unreasonable searches and

seizures, shall not be violated, and no

Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be

seized.

Section One of the Fourteenth Amendment of the

United States Constitution provides:

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

INTRODUCTION

David Sosa did nothing wrong: “Everyone agrees

that” he “is an innocent man.” See Pet. App. 25a

(Rosenbaum, J., dissenting). But Respondents here twice

arrested and detained him anyway because of a mistaken

identity on their part.

In 2014, a Martin County deputy sheriff stopped Sosa

for a traffic violation, ran his license through the system,

and found a hit for “a warrant issued 22 years earlier in

Harris County, Texas for another man named David

Sosa.” Id. at 2a–3a. Even though “the wanted man’s date

of birth, height, weight, social security number, and tattoo

information did not match” Sosa’s “own identifiers,” the

deputy arrested him anyway. Id. at 3a. Sosa was detained

for three hours, before officers “confirmed his identity

and released him.” Id.

In 2018, it all happened again. Sosa, indeed, “must

have felt like he had been dropped into a Kafka novel.” Id.

at 15a (Newsom, J., concurring). “[F]ollowing a routine

traffic stop, Sosa was arrested and detained by his

hometown sheriff’s deputies for [a] 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.” Id. But this time, rather than

holding him for a few hours, officers “detained Sosa for

three days.” Id.

There is no question that “[w]hat happened to Sosa”

was “awful.” Id. But was it unconstitutional? And, if so,

which constitutional right was violated? Both of these

questions have divided state and federal courts.

On question one, the en banc Eleventh Circuit plucked

a rigid, three-day safe harbor period out of Baker v.

McCollan, 443 U.S. 137 (1979), to deny relief. Such relief

would have likely been granted in many of the other

circuits to have grappled with the question. These courts

take a more fact-intensive, totality-of-the-circumstances

approach to overdetention claims, with success or failure

of the claim depending on the reasonableness of

defendants’ actions. The same physical differences that

were at issue here, like height or weight, would have been

“red flag[s]” in those courts, requiring “further

investigation” and giving rise to potential constitutional

redress. Garcia v. Cnty. of Riverside, 817 F.3d 635, 642

(9th Cir. 2016); see also Buenrostro v. Collazo, 973 F.3d

49, 56 (1st Cir. 1992).

The second question—where the right against

overdetention resides—is linked to the first. Although

Baker held that overdetention claims should be brought

under the Fourteenth Amendment, more recent case law

from this Court instructs that the Fourth Amendment is

the “explicit textual source of constitutional protection”

for pretrial rights. Graham v. Connor, 490 US. 386, 395

(1989).

Consistent with that instruction, several circuits

situate Baker claims under the Fourth Amendment. See,

e.g., Russo v. City of Bridgeport, 479 F.3d 196, 208–09 (2d

Cir. 2007). Given that Amendment’s protection against

“unreasonable searches and seizures,” U.S. Const.

amend. IV, these courts also typically apply a flexible,

totality-of-the circumstances frame to Baker claims.

On the other hand, the Eleventh Circuit, among

others, examines Baker cases under the Fourteenth

Amendment’s substantive due process clause. But

“[s]ubstantive due process is a slippery, shape-shifting

doctrine.” Pet. App. 16a (Newsom, J., concurring). And

its slippery nature is why someone like David Sosa can be

arrested and detained, again and again, for no good

reason and with no constitutional recourse unless certain

judicially-imposed bright-line conditions are met.

This case is an ideal vehicle for the Court to resolve

both questions. The Eleventh Circuit’s en banc opinion

tackled both questions and did not base its decision on an

alternative ground, such as qualified immunity. Even if it

did, the circumstances spotlight the shortcomings of such

immunity.

After all, an innocent man was deprived of his liberty

for several hours and then several days, because he

shared the simple, common name of a drug dealer. No

doctrine should shield Defendants from answering for

that (mis)conduct. And certainly no doctrine bars this

Court from weighing in, clarifying critical questions of

constitutional law, and preventing the “awful” scenario

here from recurring. Id. (Newsom, J., concurring).

STATEMENT OF THE CASE

A. Factual background

Petitioner David Sosa resides in Martin County,

Florida. He works in research and development and,

when he filed suit, was making jet engines for Pratt &

Whitney. Id. at 27a (Rosenbaum, J., dissenting). He is

not and has never been a drug trafficker.

But he (and thousands of other Americans)

unfortunately shares a name with one. Id. There is

another David Sosa who is wanted in Harris County,

Texas, for selling crack cocaine. Id. at 29a. Harris County

officials issued a warrant for that Sosa’s arrest in 1992,

and that warrant remains open. Id.

Yet other than sharing a name, the wanted Sosa and

Petitioner have virtually nothing in common. They have

different birth dates. Id. They are of different heights.

Id. There is a forty-pound weight difference. Id. at 92a.

And the wanted Sosa had tattoos, while Petitioner had

none. Id.

These differences did not stop Martin County officers

from mistakenly arresting and detaining Petitioner on

two separate occasions.

First, in November 2014, a Martin County deputy

“pulled” Petitioner “over for a traffic violation.” Id. at

79a. “When the officer ran Sosa’s name, the computer”

revealed the outstanding drug trafficking warrant. Id. at

80a. Sosa, in turn, pointed out that—besides a shared

In a wrinkle befitting the twists and turns of this case, Harris

County officials in fact issued a warrant for Carlos Maradiaga.

Maradiaga, in an apparent effort to throw authorities off the scent,

adopted “David Sosa” as an alias.

name—none of his identifying information matched that

from the (more than two-decades-old) warrant. Despite

Sosa’s protestations of innocence, the deputy arrested

Sosa, “took him to the station,” and detained him in a jail

cell. Id. at 82a. At the station, Sosa “told two Martin

County jailers that he was not the wanted Sosa.” Id.

Three hours later, officers ran Sosa’s fingerprints

against those of the wanted individual. Within minutes,

they concluded that they had detained the wrong

individual, and Sosa was released. “But no one created a

file or otherwise documented” the mistaken identity,

“[n]or did the Sheriff’s Department” put in place “any

system to prevent” a “mistaken arrest” in the future. Id.

And so, “perhaps not that surprisingly,” on April 20,

2018, Sosa “had a similar”—albeit much worse—

“misadventure.” Id. Martin County Deputy M. Killough

stopped Sosa for a traffic violation. As before, Deputy

Killough identified a warrant attached to a David Sosa,

from Texas. 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.” Id. at 30a. He again noted

that he “did not share the same birthdate, Social Security

number, tattooed status, or other identifying

information.” Id. But Sosa was again arrested, his truck

impounded.

During booking, Sosa “repeatedly explained to many

Martin County employees” that he was not the wanted

David Sosa. Id. Another officer, Deputy Sanchez, told

Sosa that they “would follow up on the matter,” but no

action appears to have been taken. Id.

Sosa spent the night in jail. The next morning, Sosa

was brought before a magistrate, in a video hearing. Id.

Sosa wanted to explain to the judge that this case of

mistaken identity could be easily resolved by comparing

the information on the warrant with his identification. But

several Martin County jail officers “threatened” Sosa and

“told him not to talk to the judge during [the] hearing.”

Id. at 30a–31a. Sosa, believing he could face criminal

consequences for speaking out of turn, stayed silent. Id.

at 31a.

Sosa spent a second night in jail. He had one cold

comfort. After Sosa finished speaking to his wife on the

phone, a deputy who overheard his conversation pulled

him aside, exclaiming that “[y]our rights were violated,

man.” Still Sosa remained detained for another day and

night.

Finally, after spending three nights in jail, Sosa was

fingerprinted and released. During his detention, Sosa

missed work and could not inform his employer of his

absence. Id. He needed to pay to retrieve his impounded

truck. And though Sosa had been wrongfully detained a

second time, there is no evidence Martin County created

a record to prevent a third mistaken arrest. Id. at 82a.

B. Proceedings below

Having “had enough,” Sosa “filed suit” in November

2019 “against Martin County and the individual deputies.”

Id. at 84a. He sought damages and injunctive relief under

Section 1983 for violation of his Fourth and Fourteenth

Amendment rights. Id. The operative complaint stated

claims for overdetention, false arrest, and Monell liability.

In March 2020, Defendants moved to dismiss. The

district court granted dismissal, and Sosa appealed to the

Eleventh Circuit.

There, a panel affirmed the district court’s decision as

to the false-arrest and Monell claims. But it reversed on

the overdetention cause of action. As the panel explained,

“[d]etention—and particularly protracted detention—of

an innocent person obviously seriously interferes with

that person’s liberty interests.” Id. at 81a. Consequently,

“when a law-enforcement officer receives information

that suggests that he has the wrong person in custody, the

Fourteenth Amendment requires him to take some action

to resolve those doubts.” Id. (emphasis added).

More to the point, the only similarities between Sosa

and the wanted individual were their race, names, and

gender. Id. at 91a. Dates of birth, height, weight, Social

Security information, tattoos—all different. Id. at 96a.

These “critical” differences were all the more suspect

given that “the warrant was out of Texas, while Sosa was

a Florida resident.” Id. at 92a (citing Rodriguez v.

Farrell, 280 F.3d 1341, 1347 (11th Cir. 2002)). Such

differences created a “substantial possibility . . . that Sosa

was not the wanted Sosa and . . . [the deputies] had the

means readily available to rapidly confirm Sosa’s

identity.” Id. at 97a. Taking “no action for three days and

three nights while Sosa sat in jail” should, at the very

least, give rise to a plausible cause of action. Id.

The panel further held that the officers were not

entitled to qualified immunity. Id. at 112a. As it reasoned,

Baker v. McCollan and Cannon v. Macon County, 1 F.3d

1558 (11th Cir. 1993), clearly established the

unconstitutional nature of “fail[ing] to take any steps to

identify a detainee as the target of a warrant.” Id.

In January 2022, the Eleventh Circuit sua sponte

vacated the panel opinion and voted to rehear the case en

banc. Pet. App. at 4a. Following briefing and oral

argument, the en banc court reversed the panel and

ordered that the case be dismissed. Id. at 11a. But in

getting to that result, the en banc court produced four

separate opinions—a majority, two concurrences, and a

dissent.

1. Writing for the majority, Chief Judge Pryor held

that Baker “squarely control[led],” with this case

“begin[ning] and end[ing] with Baker.” Id. at 2a, 5a.

Baker, as Chief Judge Pryor explained, involved the

mistaken identification of two brothers, Leonard and

Linnie McCollan. Id. at 5a. Leonard had “procured a

driver’s license that bore his own picture but, in all other

respects, the information of his brother, Linnie.” Id.

(internal quotation marks omitted). Police then issued a

valid arrest warrant for Leonard, but—given Leonard’s

earlier duplicity—under Linnie’s name. Linnie was later

arrested, and detained “from December 30 until January

2,” before Linnie was finally released. Id. (citing Baker,

443 U.S. at 143–44 (ellipses omitted)). This Court held

that Linnie’s constitutional rights were not violated, yet

also acknowledged that individual plaintiffs “could not be

detained indefinitely in the face of repeated protests of

innocence.” 443 U.S. at 144. That is so “even [if] the

warrant under which [the individual] was arrested and

detained met the standards of the Fourth Amendment.”

Id.

From these circumstances, Chief Judge Pryor

inferred a bright-line rule for how many days that the

government can hold an individual on a facially valid

warrant. Pet. App. 7a. In short: “Under Baker, no

violation 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 Linnie was detained.”

Id.

Other factors—such as technological developments,

the timing of Linnie’s detention (over a holiday weekend),

and Linnie’s “claims of innocence”—were “largely

irrelevant.” Id. at 6a; see also id. (“The Constitution does

not guarantee that innocent people will never be

arrested.”).

2. Judge Jordan, joined by Judges Wilson and Jill

Pryor, read Baker differently from the majority. Id. at

12a (Jordan, J., concurring). In their view, Baker did not

“foreclose[] a substantive due process claim for

‘overdetention’ based on misidentification.” Id. As Judge

Jordan observed, prior circuit precedent in Cannon

“correctly recognized” this right, as have consonant

decisions from “a number of [] sister circuits.” Id.

But Sosa was nevertheless precluded from obtaining

relief because, “under the legal fiction created by qualified

immunity, a reasonable police officer who read [the

relevant] cases would not know for certain that detaining

Mr. Sosa for three days was unlawful.” Id. at 13a.

Judge Jordan’s concurrence, though, was “a reluctant

one.” Id. He criticized qualified immunity as “far

removed from [the legal] principles existing in the early

1870s, when Congress enacted . . . § 1983.” Id. And

drawing on recent scholarship and case law, Judge Jordan

urged “the Supreme Court” to “correct” this

“regrettable” turn in its jurisprudence. Id. at 14a (citing,

e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1870–72 (2017)

(Thomas, J., concurring), and Ilan Wurman, Qualified

Immunity and Statutory Interpretation, 37 Seattle U. L.

Rev. 939, 961–72 (2014)).

3. Judge Newsom likewise concurred. The gist of his

concurrence was that, although “[w]hat happened to Sosa

was . . . awful,” it did not infringe his “so-called

‘substantive due process’ rights.” Id. at 15a (Newsom, J.,

concurring). Judge Newsom proceeded to criticize

substantive due process’s underpinnings, arguing that

courts “should be particularly reluctant to indulge

substantive-due-process arguments when an actual

constitutional provision addresses the sort of injury that

a complainant alleges.” Id. at 20a–21a. Judge Newsom

concluded by reviewing (and rejecting) possible claims

under the Fourth, Sixth, and Eighth Amendments. Id. at

21a–22a.

4. Judge Rosenbaum dissented. To her, the facts were

clear. Sosa, an “innocent man,” had remained in jail for

roughly 72 hours while “Martin County Sheriff’s officials

refused to confirm Sosa’s identity.”

Id. at 25a

(Rosenbaum, J., dissenting). Such confirmation would

have “require[d] an officer to perform less than a minute

of work,” a point made plain when Sosa was, in 2014,

detained for only three hours rather than three days. Id.

Furthermore, Respondents here had “good reason to

believe they had arrested the wrong man” because of

descriptive differences between Sosa and the wanted

man. Id. These differences, along with Sosa’s repeated

protestations of innocence and his prior detention,

“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.” Id. at 28a; see also id. (“Sosa’s

jailers could not ignore the[] flashing neon signs that they

likely had the wrong Sosa and remain deliberately

indifferent to Sosa’s identity for three nights and three

days.”).

“[T]he Constitution does not,” as Judge Rosenbaum

explained, “have an aircraft-carrier-sized loophole in its

guarantee that no person shall be deprived of their liberty

without due process of law.” Id. at 25a–26a. Instead, “the

Constitution require[s]” officers “to take reasonable

action[s],” such as “the simple and quick computerized

process of running Sosa’s fingerprints against the

fingerprints of the wanted Sosa.” Id. at 28a (emphasis

added).

Judge Rosenbaum rejected the majority’s reading of

Baker—i.e., foreclosing any overdetention claim

whenever that detention lasts three days or fewer. As she

observed, this Court did not, in Baker, demark three days

as some “magic number.” Id. at 44a. Instead, Baker set

forth a series of limiting principles that delineate when it

“becomes unreasonable, under the totality of the

circumstances, not to verify the arrestee’s identity.” Id.

at 48a.

Here, those circumstances included: (1) the many

technological advancements in fingerprinting and

identification since the early 1970s; (2) the fact that

officers were not actively looking for the wanted Sosa; (3)

that the warrant here was significantly older and from a

much further geographic distance; (4) that almost none of

the identifiers matched in this case; (5) that “David Sosa”

is a common name; and (6) that Sosa was not detained over

a holiday weekend. Id. at 55a–60a.

Judge Rosenbaum further observed that Cannon,

among other precedents, clearly established a

constitutional right against overdetention, precluding

qualified immunity. Id. at 65a. And finally, though Baker

and Cannon were “substantive-due-process right” cases,

Judge Rosenbaum urged that, in light of more recent case

law, protection against overdetention “should be rehomed

as a Fourth Amendment right.” Id. at 66a.

REASONS FOR GRANTING THE PETITION

The opinion below implicates two separate yet related

splits within the law. The first is how to read Baker: as a

case embodying a reasonableness analysis or one

imposing a bright-line rule, regardless of any other

relevant factual circumstances. The second is whether to

rehome Baker claims, from the Fourteenth to the Fourth

Amendment. The Eleventh Circuit’s decision on both

questions is wrong, and the en banc posture of this case

makes review by this Court all the more critical.

I. COURTS ARE DIVIDED ON WHETHER

BAKER IMPOSES A BRIGHT-LINE RULE OR A

REASONABLENESS ANALYSIS.

A. Most courts read Baker to require a detailed,

fact-specific,

totality-of-the-circumstances

analysis.

It is true that, in Baker, Linnie was wrongfully

detained for three days—and that those circumstances

did not arise in that case to the level of a constitutional

violation. But this Court did not impose a three-day grace

period for every possible overdetention claim.

To the contrary, it held that “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.’” Baker, 443 U.S. at 145 (emphasis added).

How much time is necessarily context- and factdependent. Baker, for instance, involved detention over a

New Year’s weekend. Id. That circumstance would affect

the nature of an overdetention claim since “traditionally,

less essential public services are not fully staffed” during

this time. Pet. App. 103a; see also Patton v. Przybylski,

822 F.2d 697, 700 (7th Cir. 1987) (construing Baker not to

count holidays in overdetention cases). But a three-day

detention over a non-holiday could (and should) dictate a

different result.

Consistent with this understanding, most courts to

address the question have read Baker as applying a

totality-of-the-circumstances analysis.

These courts

require officers to investigate when a similarly named, but

significantly different-looking person is detained and

makes repeated protestations of mistaken identity. Those

circuits—the First, Second, Third, Eighth, and Ninth—

would likely have ruled for a plaintiff in Sosa’s shoes.

For instance, in Garcia v. County of Riverside, 817

F.3d 635, 638 (9th Cir. 2016), plaintiff shared the same

name and date of birth as the warrant subject. But he was

several inches taller and forty pounds heavier than the

warrant subject. Id. at 641. That is exactly the same

weight difference between Sosa and the wanted individual

here. Given those discrepancies, “[e]ven a cursory

comparison of [plaintiff] to the warrant subject should

have led officers to question whether the person described

in the warrant was [plaintiff].” Id. Information such as

differences in height and weight “raised questions about .

. . identity” which “should have prompted [officers] to

investigate more deliberately.” Id.

But the officers in Garcia—just like the officers

here—failed to promptly compare fingerprints even after

plaintiff protested his innocence and stated he had been

mistakenly detained on the same warrant before. Id. at

638, 642.

Relying on Baker and relevant circuit

precedent, the Ninth Circuit concluded that plaintiff

“had sufficiently pleaded” a constitutional violation. Id. at

643. The court also denied qualified immunity. Id. at 637.

Gant v. County of Los Angeles, 772 F.3d 608 (9th Cir.

2014), and Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002)

(per curiam), are of a piece. In Gant, plaintiff’s height and

weight differed from the wanted man, characteristics

plaintiff pointed out in insisting on his innocence. 772 F.3d

at 623. Officers did not take steps in response to verify

the mistaken identity, giving rise to a genuine dispute of

fact related to a constitutional violation. Id.

Likewise, in Fairley, the Ninth Circuit concluded that

plaintiff had pleaded a constitutional violation after he had

been booked on his identical twin’s warrant. The men, of

course, shared the same birthdate, race, height, age, and

other physical characteristics. But the booking sergeant

failed to perform a fingerprint analysis for days,

overdetaining plaintiff. 281 F.3d at 915, 918.

Finally, and importantly, unlike the Eleventh Circuit,

the Ninth Circuit has explicitly declined “to read Baker as

creating a bright-line rule regarding the length of

detention.” Alvarado v. Bratton, 299 F. App’x 740, 742

(9th Cir. 2008).

In Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.

2001), officials mistakenly identified the detainee as a

fugitive. Id. at 678. The men shared the same last name,

but their physical characteristics and fingerprints—much

like Sosa—differed. Id. The detainee was held for just

one day. But as Lee explains, “[t]he argument that [a] due

process claim must fail at the pleading stage because

[plaintiff] was incarcerated for only one day before his

extradition hearing is . . . unavailing.” Id. at 684. That is

because, though Baker involved a three-day detention,

that did not create some 72-hour safe harbor. Instead,

“mistaken incarceration of an individual in other

circumstances may violate” the Constitution, “depending

on what procedures the State affords defendant.” Id.

(quoting Baker, 443 U.S. at 144–45); accord Alvarado, 299

F. App’x at 742.

Case law in the First Circuit tracks that of the Ninth

Circuit. In Buenrostro v. Collazo, 973 F.3d 49, 56 (1st Cir.

1992), plaintiff and the suspect shared the same name and

date of birth. But their photos were “completely

different,” id., and their fingerprints did not match. The

facts, in other words, are a near facsimile of both the

circumstances here and in Garcia, Gant, and Fairley.

Buenrostro v. Collazo, 777 F. Supp. 128, 130 (D.P.R.

1991). And just as in Garcia, Gant, and Fairley (and

unlike the Eleventh Circuit in this case) the First Circuit

determined that plaintiff had presented a triable issue of

fact on whether his detention violated the Constitution.

973 F.3d at 45.

Similarly, in Andujar v. City of Boston, 760 F. Supp.

238, 239 (D. Mass. 1991), plaintiff was detained for over a

week on a validly issued warrant. During this detention,

officers took no steps to obtain photographic evidence or

to match fingerprints, despite plaintiff having previously

been arrested “under the same warrant, and detained for

approximately four and one-half hours.” Id. at 242.

Under these circumstances, plaintiff “ha[d] sufficiently

alleged the necessary elements of a § 1983 action.” Id.

The district court added that, because “the warrant on

which plaintiff was arrested was three years old,” “special

procedures” might well have been warranted. Id. Sosa,

to be clear, was also detained twice, on a warrant that was

more than twenty years old—a fact that Judge

Rosenbaum highlighted in her dissent. Pet. App. at 27a.

The Third Circuit similarly recognizes that “an

apparently valid warrant does not render an officer

immune from suit if his reliance on it is unreasonable in

light of the relevant circumstances.” Berg v. County of

Allegheny, 219 F.3d 261, 273 (3d Cir. 2000). In Berg, the

plaintiff’s name, birth date, criminal complaint number,

social security number, and address all differed from the

wanted individual. Id. at 267. The plaintiff, though, spent

five days in jail, including New Year’s Day, after being

brought in on an erroneously issued warrant. Id. at 268.

The Third Circuit held that the officer’s reliance on a

facially valid warrant was unreasonable. Id. at 273; see

also Kelly v. Jones, 148 F. Supp. 3d 395, 399, 404 (E.D. Pa.

2015) (denying qualified immunity to officers who failed to

investigate whether plaintiff was the right “Anthony

Kelly,” despite having the wanted man’s mugshot in their

possession).

Likewise, in Kennell v. Gates, 215 F.3d 825, 830 (8th

Cir. 2000), the Eighth Circuit upheld a jury verdict for

plaintiff Sharon Kennell, who was detained for six days on

an arrest warrant issued for her sister, Deborah. Though

Sharon and Deborah’s physical characteristics were

substantially similar, their fingerprints differed. Id. at

827 n.2.

Finally, the Second Circuit has held that a Baker

claim arises whenever officers fail “to investigate specific,

readily-verifiable claims of innocence in a reasonable time

period.” Russo, 479 F.3d at 209 (emphasis added).

Consequently, plaintiffs may prosecute a § 1983 claim

when officers fail to review “easily available” surveillance

footage showing an older, shorter, and balder

perpetrator, without the detainee’s distinctive tattoos. Id.

at 200, 209; accord Harewood v. City of New York, 2012

WL 12884356, at *3, *5 (E.D.N.Y. Feb. 10, 2012) (suspect

younger and taller than detainee).

B. A handful of courts, including the Eleventh

Circuit, read Baker in a far more cramped,

formalistic manner.

Juxtaposed against these circuits are a minority of

courts which read Baker in a much more rigid manner.

The Washington Supreme Court, for instance, has held

that when a person is “held only three days,” there is no

Baker violation—full stop. Stalter v. State, 86 P.3d 1159,

1164 (Wash. 2004).

Somewhat similarly, in Harris v. Payne, 254 F. App’x

410 (5th Cir. 2007), a misidentified plaintiff was

wrongfully detained for four months. Although plaintiff

and the warrant suspect shared a name and general

physical build, their Social Security numbers and

birthdates differed. Id. at 412. Most damningly, however,

plaintiff was white. The warrant suspect was Black. Id.

It would be hard to imagine a more glaring

“discrepanc[y],” “apparent” to “all of the” defendants in

that case. Id. at 421. Nevertheless, because plaintiff had

not, as in Baker, repeatedly protested his innocence by

pointing to this fact, the Fifth Circuit dismissed

plaintiff’s overdetention claim. Id.

Washington’s approach departs from that of the Ninth Circuit

which, depending on the circumstances, allows plaintiffs to proceed

with a Baker claim “for only one day” of detention. Lee, 250 F.3d at

684. That division between state and federal law only tips further in

favor of granting certioriari. Wayne A. Logan, A House Divided:

When State and Lower Federal Courts Disagree on Federal

Constitutional Rights, 90 Notre Dame L. Rev. 235, 240 (2014).

The Eleventh Circuit’s decision stitches together the

worst aspects of both approaches. Like Washington, it

holds that a detention that “lasts only three days . . . gives

rise to no claim under the United States Constitution.”

Pet. App. 27a (internal quotation marks omitted). And

like in the Fifth Circuit, that safe harbor applies even

when a panoply of other traits—height, weight, age, and

other personal identifying information—“should have set

off alarm bells” to jail officers. Id. at 55a (Rosenbaum, J.,

dissenting).

All the worse, the Eleventh Circuit’s framework bucks

both its own precedent and common sense. Critically, in

Cannon v. Macon County, a prior Eleventh Circuit case,

the plaintiff’s Social Security number, driver’s license

number, and physical description all differed from the

warrant under which she was mistakenly arrested. 1 F.3d

at 1560. Ruling in plaintiff’s favor, the Eleventh Circuit

emphasized these differences, observing that they tended

to show a “deliberate indifference toward the plaintiff’s

due process right.” Id. at 1564. Such deliberate

indifference, in turn, flouted the “constitutional right to be

free from continued detention after it was or should have

been known that the detainee was entitled to release.” Id.

at 1563.

To be sure, the Eleventh Circuit here tried to

distinguish Cannon. First, it questioned the validity of

the arrest warrant in Cannon. Pet. App. 10a. But such

questioning amounts to no more than a tenuous, post hoc

rationalization, unsupported by either the record or the

resulting opinion. After all, neither party in Cannon

doubted the warrant’s validity; the issue played no role in

the final opinion. 1 F.3d at 1561. Second, the en banc

court pointed out that plaintiff in Cannon “was held for

seven days, a period more than twice greater than the

duration” in Baker. Pet. App. 11a. But that distinction

too is unavailing. As Cannon makes clear, overdetention

claims arise not after three days or seven days or any

other set number of days, but whenever defendants know

or should know that a plaintiff is “entitled to release.” 1

F.3d at 1563.

Ultimately, the en banc court’s reasoning here—by its

own words—“give[s] no weight to facts beyond” two

factors: (1) whether a warrant is valid and (2) whether a

party’s detention was less than three days. Pet. App. 8a.

That directly contradicts both Cannon and the case law of

several other circuits.

It also produces absurd results. Under the Eleventh

Circuit’s reasoning, police could arrest Sosa a third,

fourth, or fifth time. They could, indeed, arrest him each

week if they wanted to—so long as there is a single

outstanding warrant for a David Sosa. Because, so long

as they release him within three days, there can never be

a constitutional violation. That would be so even if Sosa

looks nothing like the wanted individual, repeatedly

explains and protests his innocence, and officers could

verify the mistaken identity in “less than a minute of

work.” Id. at 25a (Rosenbaum, J., dissenting). It would

be so even if the warrant were issued in another state,

decades ago. A reasonable reading of Baker—as reflected

in the Ninth, First, and other circuits—does not sanction

such an outcome.

II. COURTS ARE DIVIDED ON WHETHER

OVERDETENTION CLAIMS ARISE UNDER

THE

FOURTEENTH

FOURTH

AMENDMENT.

The Eleventh Circuit’s en banc opinion implicates a

second, related split: the constitutional provision under

which overdetention claims arise. Plaintiff in Baker

brought suit under the Fourteenth Amendment, and the

Court examined plaintiff’s claim through the lens of

substantive due process. 443 U.S. at 145.

But Graham v. Connor, 490 U.S. 386 (1989), signaled

a move away from that analytical frame. That case

involved an excessive-force claim against an officer for

conduct during an investigatory stop. Plaintiff sought

relief under the Fourteenth Amendment but, on review,

Graham explained that plaintiff had sued under the

wrong constitutional provision.

As it observed, claims arising “in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment

and its ‘reasonableness’ standard, rather than under a

‘substantive due process’ approach.” Id. at 395. That is

“[b]ecause the Fourth Amendment provides an explicit

textual source of constitutional protection against . . .

physically intrusive governmental conduct,” rather than

“the more generalized notion of ‘substantive due

process.’” Id. Case law post-Graham has only further

affirmed that approach, eschewing the Fourteenth

Amendment in favor of a more specific constitutional

provision in § 1983 cases. See, e.g., Albright v. Oliver, 510

U.S. 266, 273 (1994); Pinkston v. Kuiper, __ F.4th ____,

2023 WL 3274644, at *2 (5th Cir. May 5, 2023) (“[T]he

Supreme Court has instructed us not to apply the

Fourteenth

Amendment’s

substantive-due-process

catchall when another, more specific constitutional

provision applies.”).

A. A growing

overdetention

Amendment.

number of courts home

claims under the Fourth

Consistent with Graham, more and more courts have

recognized Baker claims under the Fourth Amendment.

In Russo v. City of Bridgeport, 479 F.3d 196, 208 (2d Cir.

2007), for instance, the Second Circuit concluded that a

mistaken identity case “fits comfortably under the

coverage of the Fourth Amendment.” That Amendment,

consonant with Graham, offers an “explicit textual source

of constitutional protection.” Id. at 209 (citing 490 U.S. at

395). Further, the Fourth Amendment’s prohibition

against unreasonable searches and seizures complements

the sort of totality-of-the-circumstances analysis

necessary in Baker cases. Plaintiff in Russo was

“unreasonably seized” in light of “the length of time of”

his detention, the availability of exculpatory evidence, and

the “alleged intentionality” of the officers’ behavior. Id.

The Third Circuit likewise nestles the Baker right in

the Fourth Amendment.

As it observes, “the

constitutionality of arrests by state officials is governed

by the Fourth Amendment rather than due process

analysis.” Berg v. Cnty. of Allegheny, 219 F.3d 261, 269

(3d Cir. 2000). And Berg, of course, held that plaintiff

could proceed with a Baker claim for mistaken identity,

given the unreasonable actions of the defendant officers.

The Fourth Circuit has similarly suggested that

overdetention claims should be viewed under the Fourth,

not Fourteenth, Amendment. Safar v. Tingle, 859 F.3d

241, 245 (4th Cir. 2017).

B. Some courts continue to review overdetention

under the Substantive Due Process Clause.

By contrast, several circuits continue to home

overdetention claims under the Fourteenth Amendment,

including the Eleventh Circuit here. Pet. App. 1a–6a; see

also Harris, 254 F. App’x at 420; Seales v. City of Detroit,

724 F. App’x 356, 362 (6th Cir. 2018). But doing so

produces discordant results, in at least three ways.

First, as Judge Newsom pointed out in his

concurrence, the Supreme Court has, even outside the

arrest and pre-arrest context, cabined substantive due

process causes of action. See Pet. App. 17a (Newsom, J.,

concurring) (citing Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228, 2242 (2022)). Continuing to examine

claims under the Fourteenth Amendment therefore bucks

both the specific prescription outlined in Graham and this

Court’s more general guidance.

Second, and relatedly, substantive due process is an

inherently “vague” doctrine; it is “hardly a recipe for

principled decisionmaking.” Id. That helps explain why

circuits that continue to analyze Baker claims under the

Fourteenth Amendment employ a dizzying range of

approaches. Compare Martinez v. Santiago, 51 F.4th

258, 262 (7th Cir. 2022) (applying a “deliberate

indifference” standard), with Hayes v. Faulkner Cnty.,

388 F.3d 669, 674–75 (8th Cir. 2004) (deploying a circuitmade three-step analysis), and Pet. App. at 7a (three-day

bright line rule).

By contrast, because the “touchstone of the Fourth

Amendment is ‘reasonableness,’” Brigham City v. Stuart,

547 U.S. 398, 403 (2006), that Amendment provides

natural direction in cases like this one. The text of the

Amendment, after all, forbids unreasonable searches and

seizures. Reasonableness questions turn invariably on a

totality-of-the-circumstances analysis, not—as the

Eleventh Circuit did here—a bright-line rule. 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, when a ten-second fingerprint

comparison could definitively show he is entitled to

release.” Pet. App. 75a (Rosenbaum, J., dissenting)

(cleaned up). In other words, resolving this split—and

homing overdetention claims under the Fourth

Amendment—could affect the result here.

And third, this Court has not hesitated to step in and

clarify the constitutional provisions under which specific

rights reside. It did so, of course, in Graham itself, when

it redirected excessive force claims against police officers

from the Fourteenth Amendment to the Fourth

Amendment. And it did so more recently in McDonald v.

City of Chicago, 561 U.S. 742 (2010). There, the Seventh

Circuit originally examined a state handgun regulation

under the Fourteenth Amendment’s Privileges and

Immunities Clause, rather than the Second Amendment.

Nat’l Rifle Ass’n of Am., Inc. v. City of Chicago, 567 F.3d

856, 860 (7th Cir. 2009).

As the Seventh Circuit noted, then-prevailing

precedent prevented it from conducting a proper and

thorough Second Amendment analysis. Id. at 857. That

changed once this Court incorporated the Second

Amendment against the states. In so doing, it made clear

how such challenges should be examined. That was

critical in resolving the regulation at issue in McDonald,

561 U.S. at 758–59, and allowing the law more generally

to develop in this area, cf. N.Y. State Rifle & Pistol Ass’n,

Inc. v. Bruen, 142 S. Ct. 2111 (2022). This case presents a

similar opportunity to clarify and unify the law.

III. THIS CASE IS AN EXCELLENT VEHICLE

FOR REVIEW.

A. Qualified immunity does not preclude review.

As canvassed above, this case implicates two splits

meriting review: how to apply Baker and under which

constitutional provision Baker claims arise. Given the en

banc nature of the decision below, there is little chance

that either split will resolve organically. And the

Eleventh Circuit directly answered both questions

presented, without resorting to an alternative ground to

resolve this case.

To be sure, Judge Jordan’s concurrence and Judge

Rosenbaum’s dissent touched on qualified immunity. But

their reference to that defense does not preclude review.

This Court, after all, routinely grants cases to resolve

constitutional questions, while leaving immunity

questions for remand. It has done so even after Pearson

v. Callahan, 555 U.S. 223, 236 (2009), which determined

that courts may answer the two-part qualified immunity

inquiry in either order.

For instance, just last Term, this Court held in

Thompson v. Clark that “a Fourth Amendment claim

under § 1983 for malicious prosecution does not require

the plaintiff to show that the criminal prosecution ended

with some affirmative indication of innocence.” 142 S. Ct.

1332, 1341 (2022). Instead, “[a] plaintiff need only show

that the criminal prosecution ended without a conviction.”

Id. While this Court determined that the plaintiff had

satisfied the requisite showing, it remanded to either the

“Second Circuit or the District Court as appropriate” to

address whether respondent was entitled to qualified

immunity. Id.

This Court made a similar move in another § 1983 case,

Torres v. Madrid, 141 S. Ct. 989, 993, 1003 (2021). In

Torres, this Court held that “the application of physical

force to the body of a person with intent to restrain is a

seizure [under the Fourth Amendment] even if the person

does not submit and is not subdued.” Id. at 1003. Per the

Court, the plaintiff was seized when officers shot her

“with intent to restrain her movement.” Id. Yet it

nonetheless remanded the case for further proceedings,

so that the lower court could address “any questions

regarding the reasonableness of the seizure, the damages

caused by the seizure, and the officers’ entitlement

to qualified immunity.” Id.

Consistent with Thompson and Torres, lower

appellate courts routinely address constitutional

questions in § 1983 cases while remanding to district

courts to consider qualified immunity. See, e.g., Kerns v.

Bader, 663 F.3d 1173, 1181–82 (10th Cir. 2011)

(remanding to the district court on qualified immunity);

Jones v. Sandusky Cnty., Ohio, 541 F. App’x 653, 663 (6th

Cir. 2013) (remanding to the district court to “determine

whether,

assuming

[the

plaintiff’s

Fourteenth

Amendment] right not to endure the use of a flash-bang

device was violated, that right was clearly established.”).

In short, this Court can resolve the two splits presented

here without needing to address whether any legal

violation was clearly established.

B. This case demonstrates why qualified immunity

should be reconsidered.

That said, even if the Court were to consider qualified

immunity, this case illustrates precisely why that doctrine

on its face merits a second look. After all, (1) “the nature

of” the doctrine, (2) “the quality of” the doctrine’s

“reasoning” and (3) its “workability” counsel in favor of

reconsideration. Dobbs, 142 S. Ct. at 2265.

1. Qualified immunity is a legal fiction, based on a

clerical error.

Begin with a point several judges on the Eleventh

Circuit recognized: qualified immunity is a “legal fiction.”

Pet. App. 13a (Jordan, J., concurring); accord Amore v.

Novarro, 624 F.3d 522, 535 (2d Cir. 2010); Werner v. Wall,

836 F.3d 751, 768 (7th Cir. 2016) (Hamilton, J.,

dissenting). Why?

Because “statutory interpretation, as we always say,

begins with the text,” Ross v. Blake, 578 U.S. 632, 638

(2016), and often “ends” there as well, Octane Fitness,

LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553

(2014). And Section 1983’s text is clear: “Every person

who, under color of any statute . . . subjects . . . any citizen

of the United States . . . to the deprivation of any rights,

privileges, or immunities . . . shall be liable to the party

injured in an action at law.” 42 U.S.C. § 1983 (emphasis

added). Nowhere in that text did Congress mention or

provide for immunity. See, e.g., Hoggard v. Rhodes, 141

S. Ct. 2421, 2421 (2021) (Thomas, J., concurring in denial

of certiorari) (contemporary two-part qualified immunity

“test cannot be located in § 1983’s text and may have little

basis in history.”); William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45, 47 (2018) (examining and

rejecting various rationales for qualified immunity as a

proper textualist interpretation of § 1983).

But it is even worse than that. Section 1983’s original

text held actors liable when acting under color of state

law, “any such law, statute, ordinance, regulation, custom,

or usage of the State to the contrary notwithstanding.”

Alexander A. Reinert, Qualified Immunity’s Flawed

Foundation, 111 Calif. L. Rev. 201, 235 (2023) (quoting

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13) (emphasis

added). That phrase was “meant to encompass” existing

common law defenses and immunities—and make them

unavailable to defendants. Id.

Yet the statute on the books today contains no such

language, a “product of a decision by the first Reviser of

Federal Statutes to, for unclear reasons, remove the

[abrogating] language when the first edition of the

Revised Statutes of the United States was published in

1874.” Id. at 237. Consequently, “modern [qualified]

immunity jurisprudence is not just atextual but

countertextual.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th

Cir. 2023) (Willett, J., concurring) (emphasis in original).

That point alone should call the doctrine’s continuing

validity into question.

2. The reasoning behind qualified immunity has been

widely criticized.

But on top of its counter-textual, counter-historical

nature, qualified immunity’s underpinnings “stand[] on

shaky ground.” Hoggard, 141 S. Ct. at 2421. As Justice

Sotomayor has outlined, the immunity leads courts to

“strain[] mightily” and reach “fanciful” conclusions to find

that officers’ conduct violates no clearly established law.

Kisela v. Hughes, 138 S. Ct. 1148, 1159, 1161 (Sotomayor,

J., dissenting). The upshot is that the doctrine “tells

officers that they can shoot first and think later.” Id. at

1162.

Lower courts have expressed similar frustration. As

one federal judge has put it, “[i]t strains credulity to

believe that a reasonable officer, as he is approaching a

suspect to arrest, is thinking to himself: ‘Are the facts

here anything like the facts in York v. City of Las

Cruces?’”

Manzanares v. Roosevelt Cnty. Adult

Detention Center, 331 F. Supp. 3d 1260, 1294 n.10 (D.N.M.

2018). In fact, in McKinney v. City of Middletown, Judge

Calabresi recently catalogued the more than a dozen

opinions where district and circuit judges have called

qualified immunity into question. 49 F.4th 730, 756–57 (2d

Cir. 2022) (Calabresi, J., dissenting).

As these opinions underscore, “the profound issues

with qualified immunity are recurring and worsening,”

with immunity precedents “creat[ing] a carte blanche

which can be scripted and negotiated to counter the public

interest.” Cox v. Wilson, 971 F.3d 1159, 1165 (10th Cir.

2020) (Lucero, J., dissenting from the denial of rehearing

en banc). Such doctrinal expansion comes at the expense

of the constitutional rights of everyday citizens. Zadeh v.

Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J.,

concurring). “[I]mmunity ought not be immune from

thoughtful reappraisal.” Id.

3. Qualified immunity has become increasingly

unworkable.

Finally, qualified immunity privileges “split-second

decisions of trained professionals” over “the collective

judgments of those very professionals and their

administrative and governing agencies.” Jefferson v.

Lias, 21 F.4th 74, 93 (3d Cir. 2021) (McKee, J.,

concurring). It freezes the case law at a point in time,

potentially turning a blind eye to developments in

technology and police work. Those words, indeed, speak

to the circumstances here.

What happened to David Sosa was wrong. Qualified

immunity is unworkable precisely because it gives officers

too little credit for their ability to know right from wrong.

Even when the violation is obvious, and even when there

was plenty of time to figure out both the law and Mr.

Sosa’s identity, qualified immunity might bar the

courthouse doors.

That bar, given the en banc majority opinion, does not

apply here. But if this Court were to hold otherwise or to

in any way be concerned about the doctrine’s implications

for Sosa, the circumstances here underscore why that bar

need not—and should not—exist.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

RANDALL KALLINEN

ALEX JOHNSON

KALLINEN LAW PLLC

511 Broadway Street

Houston, TX 77012

XIAO WANG

Counsel of Record

NORTHWESTERN

SUPREME

COURT CLINIC

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-1486

x.wang@law.northwestern.edu

Counsel for Petitioner

May 22, 2023

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

En Banc Opinion, Sosa v. Martin County, et al.,

57 F.4th 1297 (11th Cir. 2023) ........................

En Banc Order,

(11th Cir. Jan. 4, 2022) ....................................

77a

Panel Opinion, Sosa v. Martin County, et al.,

13 F.4th 1254 (11th Cir. Sept. 20, 2021) .........

79a

District Court Order, Sosa v. Snyder, et al.,

2020 WL 6385696 (S.D. Fla. June 25, 2020) ... 138a

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

————

No. 20-12781

————

DAVID SOSA,

Plaintiff-Appellant,

versus

MARTIN COUNTY, FLORIDA, SHERIFF WILLIAM SNYDER,

of Martin County, Florida in an official capacity,

DEPUTY M. KILLOUGH, individually, DEPUTY SANCHEZ,

individually, JOHN DOE MARTIN COUNTY DEPUTIES,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:19-cv-14455-DMM

————

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT,

LUCK, LAGOA, and BRASHER, Circuit Judges.

WILLIAM PRYOR, Chief Judge, delivered the opinion of

the Court, in which NEWSOM, BRANCH, GRANT, LUCK,

LAGOA, and BRASHER, Circuit Judges, join.

JORDAN, Circuit Judge, filed an opinion concurring in

the judgment, in which WILSON and JILL PRYOR,

Circuit Judges, join.

NEWSOM, Circuit Judge, filed a concurring opinion, in

which WILLIAM PRYOR, Chief Judge, and LAGOA,

Circuit Judge, join.

ROSENBAUM, Circuit Judge, filed a dissenting opinion.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether an

individual detained for three days based on mistaken

identity for a valid arrest warrant has stated a claim

for relief under the Fourteenth Amendment 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 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.” 443 U.S.

137, 144–45 (1979). The district court dismissed Sosa’s

complaint for failure to state a claim. Because Baker

squarely controls this case, we affirm and remand to

the panel for the disposition of any remaining issues.

I. BACKGROUND

This appeal is from a dismissal for failure to state a

claim, see FED. R. CIV. P. 12(b)(6), so we accept the

allegations of the complaint as true. Henley v. Payne,

945 F.3d 1320, 1326 (11th Cir. 2019).

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 discovered a warrant issued 22 years earlier

in Harris County, Texas for another man named David

Sosa. Although Sosa protested during 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 fingerprinted Sosa. After three hours, the sheriff’s

department confirmed 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 identifiers 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 sheriff’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

probable cause or reasonable suspicion,” that they

took “an [u]nconstitutionally lengthy time” “to check

[his] identity,” and that the Sheriff and County “did

not have adequate written policies, or train or

supervise the deputies properly” to prevent Sosa’s

arrest.

The district court dismissed the complaint. See FED.

R. CIV. P. 12(b)(6). It determined that Sosa had not

plausibly alleged that the deputies had violated Sosa’s

rights under the Fourth or Fourteenth 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., 13 F.4th 1254, 1279

(11th Cir. 2021), reh’g en banc granted, op. vacated,

21 F.4th 1362 (11th Cir. 2022). The panel opinion

explained that the arrest was reasonable under the

Fourth Amendment, id. at 1266, and that Sosa’s

claims against the County and the Sheriff were not

viable, id. at 1279. The panel majority also concluded

that Sosa stated a valid claim for violating his “substantive due-process right to be free from continued

detention after it should have been known that [he]

was entitled to release,” id. at 1266, based on our

precedent in Cannon v. Macon County, 1 F.3d 1558

(11th Cir. 1993). But the panel dissent concluded

Baker foreclosed Sosa’s over-detention claim. Sosa, 13

F.4th at 1279 (Luck, J., dissenting).

We voted in favor of rehearing the case en banc and

vacated the panel opinion. Sosa, 21 F.4th at 1362. We

instructed the parties to brief only issues related to the

over-detention claim. And we heard oral argument

only on those issues.

II. STANDARD OF REVIEW

We review de novo a dismissal for failure to state a

claim. Henley, 945 F.3d at 1326.

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 Linnie

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, December 30,

1972, the police defendants took custody of Linnie

“until [Tuesday,] January 2, 1973, when officials

compared his appearance 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 theory that the police must “mak[e] sure

that the person arrested and detained is actually the

person sought under the warrant,” McCollan v. Tate,

575 F.2d 509, 513 (5th Cir. 1978), the Supreme Court

reversed and held that he had no constitutional right

not to be detained for three days:

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 detained . . . 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

Constitution.

Id. at 143–44.

The Baker Court rejected Linnie’s over-detention

claim based on its consideration of only two criteria:

the validity of Linnie’s arrest warrant and the length

of his detention. Id. It recognized that Linnie was

“deprived of his liberty for a period of days,” which

spanned three days from Saturday to Tuesday. And

it recognized that his detention was “pursuant to a

warrant conforming . . . to the requirements of the

Fourth Amendment.” Id. at 144. It concluded 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 irrelevant.” 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 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 detention,

“[g]iven the requirements that arrest be made only on

probable cause [under the Fourth Amendment] and

that one detained 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

detainee’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 arrested

pursuant to a valid warrant supported by probable

cause under the Fourth Amendment. See id. at 143.

And like Linnie, who was held from Saturday to

Tuesday, see 443 U.S. at 144, Sosa was held for three

days from Friday to Monday. So, under Baker, Sosa

has no claim for a violation of his due-process rights.

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 procedures 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 certain amount of

time deprive the accused of ‘liberty without due

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 deprivation,”

id., we are sure that Sosa’s commensurate three-day

detention 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-intensive, 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 decision 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 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 discrepancy between

binding caselaw and the case they wanted to decide 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 circumstances 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

technological 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 liberty without due process.

443 U.S. at 143–45. Indeed, the identification in Baker

required only a low-technology photograph comparison,

so Baker did not depend, even implicitly, on a

technological 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 instead of the traveler, and used

that arrest report purportedly to support detaining the

Alabama traveler for seven days and sending her to

Kentucky, despite her accurate insistence that she had

10a

been misidentified. 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 Cannon, he was entitled to release

because the deputies who detained 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 Cannon as we did because the two conditions

required for Baker’s holding were not met. First, it is

not evident that the Cannon detainee 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,

736 F.3d 974, 978 (11th Cir. 2013) (asserting that

probable cause exists where a prudent person would

believe, based on “trustworthy information,” that “the

suspect has committed” an offense) (internal quotation

marks omitted). We explained that the plaintiff had

“essentially a claim of false imprisonment rising to the

level of a liberty deprivation.” Cannon, 1 F.3d at 1562;

cf. Luke v. Gulley, 50 F.4th 90, 95 (11th Cir. 2022)

(stating that a detainee’s right to be free from processbased seizure is violated where “the legal process

justifying his seizure was constitutionally infirm” and

“his seizure would not otherwise be justified . . .”)

(internal quotation marks omitted). Second, the Cannon

11a

detainee was held for seven days, a period more than

twice greater than the duration sheltered from liability in Baker. Cannon, 1 F.3d at 1561. In short, the

Cannon detention satisfied neither of the two Baker

conditions for lawful detentions.

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 remaining issues to the panel.

12a

JORDAN, Circuit Judge, joined by WILSON and JILL

PRYOR, 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, 443 U.S. 137, 143–46 (1979), forecloses a

substantive due process claim for “over-detention”

based on misidentification. In my opinion, we correctly

recognized such a claim in Cannon v. Macon Cty., 1

F.3d 1558 (11th Cir. 1993), as modified on rehearing,

15 F.3d 1022 (11th Cir. 1994), and Ortega v. Christian,

85 F.3d 1521, 1526 (11th Cir. 1996). And so have a

number of our sister circuits. See generally 1 Sheldon

H. Nahmood, Civil Rights & Civil Liberties Litigation:

The Law of Section 1983 § 3:57 (Sept. 2022 update)

(citing cases). As we explained in Reeves v. City of

Jackson, 608 F.2d 644 (5th Cir. 1979), the Supreme

Court in Baker said that 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.’” Id. at 651 (quoting Baker, 443 U.S. at

145) (internal quotation marks omitted).

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 notice of

what is prohibited. See Rivas-Villegas v. Cortesluna,

142 S. Ct. 4, 7–9 (2021); City of Tahlequah v. Bond, 142

S. Ct. 9, 11–12 (2021). Although the inquiry does not—

at least not yet—demand “a case directly on point,” it

requires that “existing precedent . . . place[ ] the

statutory or constitutional question beyond debate.”

Rivas-Villegas, 142 S. Ct. at 8. If the only relevant case

here was Cannon, then maybe a reasonable police

13a

officer would know that Mr. Sosa’s continued detention

was unlawful. But reading Cannon in conjunction with

Baker, as we must, makes the issue less clear. Mr.

Sosa was detained for three days, the same time period

at issue in Baker, while Cannon involved a detention

of seven days. Those two cases, taken together, would

not have provided reasonable officers adequate notice

that they were violating Mr. Sosa’s substantive due

process rights by not releasing him—at least not

“beyond debate” as the Supreme Court’s decisions

require. See Rivas-Villegas, 142 S. Ct. at 8; District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); White

v. Pauly, 580 U.S. 73, 79 (2017). In other words, under

the legal fiction created by qualified immunity, a

reasonable police officer who read these cases would

not know for certain that detaining Mr. Sosa for three

days was unlawful. Cf. City of Tahlequah, 142 S. Ct.

at 12 (“Suffice it to say, a reasonable officer could miss

the connection between that case and this one.”).

My concurrence is a reluctant one because the

Supreme Court’s governing (and judicially-created)

qualified immunity jurisprudence 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, 137 S. Ct. 1843, 1870–72 (2017)

(Thomas, J., concurring in part and concurring in the

judgment); William Baude, Is Qualified Immunity

Unlawful, 106 Cal. L. Rev. 45, 55-61 (2018); Ilan

Wurman, Qualified Immunity and Statutory Interpretation, 37 Seattle U. L. Rev. 939, 961–72 (2014);

Akhil Reed Amar, The Constitution and Criminal

Procedure 40–42 (1997). If federal statutes are supposed

to be interpreted according to ordinary public meaning

and understanding at the time of enactment, see, e.g.,

Wisconsin Central Ltd. v. United States, 138 S. Ct.

2067, 2071 (2018), and if § 1983 preserved common-

14a

law immunities existing at the time of its enactment,

see Pierson v. Ray, 386 U.S. 547, 554–55 (1967), the

qualified immunity doctrine we have today is regrettable. Hopefully one day soon the Supreme Court will

see fit to correct it.

15a

NEWSOM, Circuit Judge, joined by WILLIAM PRYOR,

Chief Judge, and LAGOA, 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 anything 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

sheriff’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 markings.

Just as he had the first go round, our Sosa naturally

(and repeatedly) 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 prejudging the issue, I’d be willing to assume

that the officers’ conduct—jailing Sosa for three full

days on a warrant issued for someone else, despite his

repeated pleas of innocence and without bothering 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 Court’s decision in Baker v. McCollan, 443

U.S. 137 (1979), which rejected a due-process challenge to a materially identical “overdetention,” is

essentially on point, and our later decision in Cannon

16a

v. Macon County, 1 F.3d 1558 (11th Cir. 1993), which

recognized a substantive-due-process claim based on a

detention more than twice as long as Sosa’s, is

eminently distinguishable. See Maj. Op. at 8–12. It

really is as simple as that.

I therefore concur in the Court’s decision and join its

opinion 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.

Substantive due process is a slippery, shape-shifting

doctrine. 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—including me—have criticized the Court’s

reliance on substantive due process even for that

limited purpose and have urged it to refocus 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: A Reinterpretation

of the Slaughter-House Cases, 109 Yale L.J. 643, 658–

87 (2000).

More controversially, substantive due process has

been deployed as a means of protecting certain unenumerated interests like, say, “the sanctity of the

17a

family”—that are deemed to be “deeply rooted in this

Nation’s history and tradition,” Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977), or, even more

obscurely, “implicit in the concept of ordered liberty,”

Palko v. Connecticut, 302 U.S. 319, 325 (1937). Cf.

Dobbs v. Jackson Women’s Health Org., 142 S. Ct.

2228, 2242 (2022) (recognizing a limited role for the

Due Process Clause in “guarantee[ing] some rights

that are not mentioned in the Constitution”). As I’ve

explained elsewhere, resort to these sorts of “vague

shibboleths” is hardly a recipe for principled decisionmaking. Sierra v. City of Hallandale Beach, 996 F.3d

1110, 1128 (11th Cir. 2021) (Newsom, J., concurring).

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 another, just don’t address. “Surely,” the thinking

goes, “the Constitution 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 court can’t find another

avenue by which to right the alleged wrong, it defaults

to substantive due process.

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., 915 F.3d

1292, 1304–07 (11th Cir. 2019) (Newsom, J., concurring in the judgment); see also Newsom, Incorporationism,

at 733–42. Why? What’s so bad about it? Well, a lot.

18a

First, and most obviously—and most seriously from

my perspective—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 Amendment’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 language: 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 government 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,

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 positively 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 indications,” 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

19a

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 doctrine traces its roots to the

fateful—and repugnant—decision” in Dred Scott v.

Sandford, 60 U.S. (19 How.) 393 (1857), in which the

Court somehow teased out of the terms of the Fifth

Amendment’s Due Process Clause a “white man’s

‘right’ to own a black man.” Hillcrest, 915 F.3d at 1305

(Newsom, J., concurring in the judgment); see also

Tribe, American Constitutional Law, at 1334 (describing

Dred Scott, which “embraced a substantive reading of

the due process requirement,” as “more nightmare

than precedent in 1866”). And things didn’t get much

better from there, as substantive due process provided

the quicksand on which the Court later built the oftcriticized—and since-overruled—decisions in Lochner

v. New York, 198 U.S. 45 (1905), and Roe v. Wade, 410

U.S. 113 (1973). See Newsom, Incorporationism, at

740–42 (tracing substantive due process’s doctrinal

pedigree). Notably, even defenders of those decisions—

including Roe—have confessed a sense of dread (or

embarrassment, or both) that they share a doctrinal

foundation with Dred Scott. See, e.g., Tribe, American

Constitutional Law, at 1318.

Finally, on top of the textual, historical, and ancestral difficulties, substantive due process’s freewheelingness (witness the dissent’s “six facts,” see Dissenting

Op. at 33–40) poses a serious practical problem. As

Justice Stevens explained for a unanimous Supreme

Court in Collins v. City of Harker Heights, the

“guideposts for responsible decisionmaking in this

20a

unchartered area are scarce and open-ended.” 503

U.S. 115, 125 (1992). Accordingly, he emphasized,

“[t]he doctrine of judicial self-restraint requires

[courts] to exercise the utmost care whenever we are

asked to break new ground” wielding a substantivedue-process shovel. Id. As I’ve summarized the Supreme

Court’s concern, “there is always a risk that a court

asked to recognize a substantive-due-process violation—

but without traditional interpretive guardrails—will

simply read into the Constitution its own view of good

government.” Hillcrest, 915 F.3d at 1306 (Newsom, J.,

concurring in the judgment). Even more grimly,

Professor Tribe has warned that “[t]here is a very real

threat that that the doctrinal shakiness of substantive

due process may . . . undermine public confidence in

the institution of judicial review and in the ability of

judges honestly to interpret the dictates of the

Constitution.” Tribe, American Constitutional Law, at

1317.

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 principled—vehicles for protecting

individual rights against state interference. 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 reluctant to indulge substantive-due-

21a

process arguments when an actual constitutional provision addresses the sort of injury that a complainant

alleges. So, for instance, the Court has held that

“[w]here a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a

particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive

due process,” must be the guide for analyzing these

claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994)

(plurality op.) (quoting Graham v. Connor, 490 U.S.

386, 395 (1989)). Accordingly, the Court has stressed,

“if a constitutional claim is covered by a specific

constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific

provision, not under the rubric of substantive due

process.” United States v. Lanier, 520 U.S. 259, 272 n.7

(1997).

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 “unreasonable . . . 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

22a

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, like

Sosa, who were initially arrested pursuant to a

magistrate-issued warrant. The Sixth Amendment

would have prohibited Sosa’s “indefinite[]” detention,

see Baker, 443 U.S. at 144, but the Speedy Trial Clause

wouldn’t itself have imposed any hard outer limit, see

Barker v. Wingo, 407 U.S. 514, 530 (1972) (prescribing

an “ad hoc” “balancing test”). And the Eighth

Amendment, while perhaps in the general ballpark,

likewise wouldn’t have offered Sosa any relief. Although

the Supreme Court seems to have been willing to

assume that states “are required by the United States

Constitution to release an accused criminal defendant

on bail” in appropriate circumstances, Baker, 443 U.S.

at 144 n.3, that right almost certainly wouldn’t have

attached unless and until Sosa was formally charged,

cf. Carlson v. Landon, 342 U.S. 524, 545 (1952) (“The

Eighth Amendment has not prevented Congress from

defining the classes of cases in which bail shall be

allowed in this country.”); 18 U.S.C. § 3142 (providing

bail for a “person charged with an offense”).1

But—and this is important—from the premise that

the Fourth, Sixth, and Eighth Amendments don’t

provide Sosa any relief, it does not follow that “substantive due process” must do so. To the contrary, the

Cf. also Schultz v. Alabama, 42 F.4th 1298, 1323–25 (11th

Cir. 2022) (upholding the constitutionality of a money-bail regime

against a constitutional challenge and collecting additional

precedents doing likewise).

23a

fact that the Constitution expressly addresses specific,

discrete issues that arise in criminal investigations

and prosecutions is a sufficient reason not to contort

the open-textured Due Process Clause to force it to

reach other adjacent (but unaddressed) matters. In

explaining that substantive due process has no role to

play when a party’s claim is “covered” by a specific

constitutional 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 understanding 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 proceed 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, 915 F.3d

at 1306 (Newsom, J., concurring in the judgment).

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 “ordered liberty” to identify and

protect some favored unenumerated right. Here,

rather, we’re being asked to use substantive due

process as a constitutional gap-filler—to hold, in

essence, that because what happened to David Sosa

was unfair, it must violate the Constitution. That, in

24a

short, is “not how constitutional law works.” Id. at

1304.2

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 violates the Constitution.”

Hillcrest, 915 F.3d at 1303 (Newsom, J., concurring in

the judgment). As soon as courts come to believe that

the Constitution must—simply must—right every

societal wrong and cure every societal ill, they put

themselves at grave risk of making it up as they go

along, penciling in their reasoning in reverse to justify

their preferred outcomes. “And if there is any fixed

star in my own constitutional constellation, it’s that

unelected, unaccountable federal judges shouldn’t make

stuff up.” Club Madonna Inc. v. City of Miami Beach,

42 F.4th 1231, 1261 (11th Cir. 2022) (Newsom, J.,

concurring) (citing West Va. Bd. of Educ. v. Barnette,

319 U.S. 624, 642 (1943)).

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, 1 F.3d 1558—in which a panel of this Court recognized a

substantive-due-process claim for an alleged “overdetention”—

was wrongly decided. Today isn’t the day, I suppose, but if and

when the issue is squarely presented, I would vote to overrule it.

25a

ROSENBAUM, Circuit Judge, Dissenting:

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 confined to a jail

cell. Sosa remained in jail for roughly 72 hours

because, 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 Majority wring their hands and say too bad for

Sosa but insist the Constitution 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 speedytrial 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 that law-enforcement officials refused to

engage in less than a minute of work to confirm their

prisoner’s identity.

This misguided view of the Constitution is horrifying. It’s also wrong. Our precedent shows that the

See also United States v. Knight, 562 F.3d 1314, 1323 (11th

Cir. 2009) (W. Pryor, J.) (stating that a speedy-trial delay cannot

violate the Sixth Amendment if it is not “presumptively

prejudicial,” which cannot happen until the delay “approaches

one year,” but holding that the two-year delay of the defendant’s

trial there did not violate the Sixth Amendment right to a speedy

trial).

26a

Constitution does not have an aircraft-carrier-sized

loophole in its guarantee that no person 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 recognized that the Constitution protects the

“right to be free from continued 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,

See, e.g., Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir.

1996) (“In light of the sparse information Christian had when he

made the arrest, Christian knew or should have known that the

imprisonment of Ortega may have constituted an unlawful

imprisonment under section 1983 in violation of the Fourteenth

Amendment.”); Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir.

2009) (“The Fourteenth Amendment Due Process Clause includes

the ‘right to be free from continued detention after it was or

should have been known that the detainee was entitled to

release.’”) (quoting Cannon, 1 F.3d at 1563); Case v. Eslinger, 555

F.3d 1317, 1330 (11th Cir. 2009) (W. Pryor, J.) (acknowledging

that, under our precedent, “‘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’”) (quoting Ortega, 85 F.3d at 1527); May v.

City of Nahunta, 846 F.3d 1320, 1329 (11th Cir. 2017) (noting

that a plaintiff can make out a claim for violation of her

Fourteenth Amendment due-process rights by “prov[ing] that the

defendant acted with deliberate indifference in violating the

plaintiff’s right to be free from continued detention after the

defendant knew or should have known that the detained was

entitled to release”).

27a

an officer’s “failure to take any steps to identify [the

arrested person] as the wanted fugitive [is] sufficient

to raise a question of fact as to [the officer’s] deliberate

indifference toward the plaintiff’s due process rights.”

Id. at 1564.

Here, jail officials had good reason to know that the

David Sosa in custody—the plaintiff here—was not

the alleged-crack-cocaine-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 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

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. Scratchoffs, FLORIDA LOTTERY, https://www.flalottery.com/scrat ch-offs

(last visited Jan. 19, 2023).

28a

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 Constitution 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, 1 F.3d at 1563.

The Majority Opinion relies on Baker v. McCollan to

excuse its failure to apply Cannon (and its progeny) to

recognize the violation 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

conclude 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

29a

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 continued 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 traffic 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 warrant issued out of Harris County, Texas, for

a “David Sosa” in connection 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, anyway, 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 fingerprinted Sosa and

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, 945 F.3d 1320, 1326 (11th Cir. 2019).

30a

determined that he was not the wanted Sosa. So

roughly three hours after Sosa was initially detained,

he was released.

Three-and-a-half years passed. Then, the same

thing happened again—only this time, Sosa was not

lucky enough to be released 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 number, 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] different 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 follow 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

31a

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 fingerprinted 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, 284 F.3d

1188, 1194 (11th Cir. 2002) (internal quotation and

citation omitted). But it does not extend to an officer

who “knew or reasonably should have known that the

action he took within his sphere of official responsibility would violate the constitutional rights of the

[plaintiff].” Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982) (internal quotation marks and citation omitted)

(alteration in original).

To receive qualified immunity, a public official must

first establish that he was acting within the scope of

his discretionary authority when the challenged action

occurred. Maddox v. Stephens, 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. Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.

1994). Deputy Sanchez and the other deputies at the

32a

jail satisfied this requirement, as they detained Sosa

while performing their official duties.

Because the deputies were acting within the scope

of their discretionary authority, the burden shifts to

Sosa to show that qualified immunity is inappropriate.

See id. To do that, the factual allegations 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.

A. Sosa sufficiently alleged that deputies violated his constitutional 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 Supreme Court’s decision in Baker

independently supports the same outcome.

33a

1. Cannon and its progeny require the

conclusion that Sosa sufficiently alleged

that jail deputies violated his constitutional right to be free from continued

detention when it was or should have

been known that he was entitled to

release.

Though a warrant can support an arrest, we have

long recognized 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, 555

F.3d at 1330 (W. Pryor, J.) (quoting Ortega, 85 F.3d at

1527). As we’ve explained, “after the lapse of a certain

amount of time, continued detention in the face of

repeated protests [of misidentification that turn out to

be true and are ignored] will deprive the accused of

liberty without due process.” Cannon, 1 F.3d at 1562.

This is so, we’ve said, because substantive due process

protects the “right to be free from continued detention

after it was or should have been known that the

detainee was entitled to release.” Id. at 1563. A state

official violates that right when he shows “deliberate

indifference” to the plaintiff’s right to be free from

unwarranted continued detention. Id.

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, 150 F.3d 579 (6th Cir. 1998), amended

by 160 F.3d 276, 276 (6th Cir. 1998) (“[T]he trier of

fact could find that the failure by [the jailers] to

ascertain that they were holding the wrong person

violated Gray’s due-process rights under the Fourteenth

34a

Amendment. . . . On remand, . . . the principal question

for the trier of fact will be whether [the defendant

jailers] acted with something akin to deliberate

indifference in failing to ascertain that the Dwayne Gray

they had in custody was not the person wanted by the

Michigan authorities on the outstanding paroleviolation warrants.”); 5 Garcia v. Cnty. of Riverside,

817 F.3d 635, 639–43 (9th Cir. 2016) (“[A]n obvious

physical discrepancy between a warrant subject and a

booked individual, such as a nine-inch difference in

height, accompanied 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 Bridgeport, 479 F.3d 196, 209 (2d Cir. 2007)

(concluding that plaintiff sufficiently alleged a constitutional violation based on his lengthy detention, given

“(1) the length of time of [his] wrongful incarceration,

(2) the ease with which the evidence exculpating [him]

which was in the officers’ possession—could have been

checked, and (3) the alleged intentionality of [the

defendants’] behavior”); Schneyder v. Smith, 653 F.3d

313 (3d Cir. 2011) (noting in the context of a material

witness’s § 1983 suit for unreasonable seizure that

“numerous courts have reached the almost tautological conclusion that an individual in custody has

a constitutional right to be released from confinement

‘after it was or should have been known that the

See also Seales v. City of Detroit, 959 F.3d 235, 241 (6th Cir.

2020) (“By our lights, Seales sued the wrong person. Officer

Zberkot merely helped to arrest Seales and initiated the booking

procedures, all legitimately under the Fourth Amendment. He

wasn’t Seales’ jailor. . . . Seales offers no explanation why

Zberkot, as opposed to the jailers, bears responsibility for the

fifteen-day detention.”).

35a

detainee was entitled to release’”) (quoting Cannon, 1

F.3d at 1563).6

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

Like we concluded in Cannon, the Sixth Circuit determined

that the right finds its home in Fourteenth Amendment substantive due process. See Gray, 160 F.3d at 276. Other circuits

have held that different provisions of the Constitution protect the

right. The Ninth Circuit, for instance, has relied on the

Fourteenth Amendment’s guarantee of procedural due process,

Garcia, 817 F.3d at 640, and the Second Circuit, which once

agreed that the right is one of substantive due process under the

Fourteenth Amendment, currently views the right as grounded

in the Fourth Amendment’s protection against unreasonable

seizures, Russo, 479 F.3d at 208–09. So does the Third Circuit.

Schneyder, 653 F.3d at 330. Regardless, though, as the Second

Circuit has explained, some disagreement over the source of the

right “is of no consequence” to whether the right exists. See Russo,

479 F.3d at 212 (quoting Wilson v. Spain, 209 F.3d 713, 716 (8th

Cir. 2000), for the proposition that “there is no question that

plaintiff’s right to be free from excessive force was clearly

established, even if there is some ongoing uncertainty about

which constitutional text is the source of that right.” (cleaned up),

and citing Alexander v. Perrill, 916 F.2d 1392, 1398 n.11 (9th Cir.

1990), as “noting that the only issue before it with respect to

qualified immunity was ‘whether there was a clearly established

duty to investigate’; that its prior decision in Haygood v. Younger,

769 F.2d 1350 (9th Cir. 1985) (en banc), ‘answer[ed] that question

in the affirmative’; and that ‘[f]or purposes of this appeal, it is

unimportant that the Haygood court found the prison officials

ultimately violated the plaintiff's right to be free from cruel and

unusual punishment, rather than the right to due process and to

be free from double jeopardy as alleged in this case’”).

36a

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 report. Id. Parrott repeatedly

protested that she was not Mann. Id. Still, the officer

stated that he identified Parrott as Mann because the

two had matching Social Security numbers and birth

dates; and because Mann used the alias Mary E.

Parrott. Id.

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 testified 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 number of another

individual listed on the NCIC report for Mann). Id.

This mismatch, we said, suggested that Deputy Collins

hadn’t gotten 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.

37a

When we considered Parrott’s case, we explained

that “Collins’ failure to take any steps to identify

[Parrott] as the wanted 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 “preclude all § 1983 claims based on false imprisonment.” Id. at 1562. To be sure, we acknowledged

that “those responsible for maintaining custody of

detainees are not constitutionally required ‘to investigate independently every claim of innocence.’” Id.

(quoting Baker, 443 U.S. at 146). Still, though, we

emphasized that “after the lapse of a certain amount

of time, continued detention in the face of repeated

protests will deprive the accused of liberty without due

process.” Id. at 1562 (citation omitted). In short, we

held that Parrott had a “constitutional right to be free

from continued detention after it was or should have

been known that [she] was entitled to release . . . .” Id.

at 1563.

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, 531 F.3d 1347, 1352 (11th Cir. 2008)

(citation omitted).

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 remains good law. And

applying its holding requires the answer the panel

38a

reached: Sosa sufficiently alleged a violation of his

substantive-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 different 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

tattooed status (Sosa had none). In fact, according to

Sosa, he “explained 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 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

39a

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

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 detainee was [not] arrested on a

valid warrant supported by probable cause,” Maj. Op.

at 12, and (2) “the Cannon detainee was held for seven

40a

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,

555 F.3d at 1330 (W. Pryor, J.) (citing Ortega, 85 F.3d

at 1527) (emphasis added).

Both Cannon and this case concern a valid arrest

accompanied by a later, unconstitutional detention.

Just as Sosa was arrested roadside on an outstanding

warrant, Parrott was arrested at 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, 1 F.3d at 1560.

And as our predecessor Court has explained, “NCIC

printouts are reliable enough to form the basis of the

reasonable belief which is needed to establish probable

cause for arrest.” United States v. McDonald, 606 F.2d

552 (5th Cir.1979) (citation and quotation marks

omitted).

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 arising from an

41a

unconstitutional overdetention. Rather, what matters

is that both Sosa and Parrott were validly arrested

based on probable 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 wriggle 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 recognizes—the

“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—is not

triggered by the passing of a specific amount of time.7

Rather, by its terms, the right accrues when the

officers knew or should have known that the detainee

was entitled to release, and they do nothing. Id. (“The

deliberate indifference requirement was adopted based

on analogies to eighth amendment situations where

the defendant’s state of mind was relevant to the issue

of whether a constitutional violation has occurred in the

first place.”).

And here—especially given this appeal’s posture,

which requires 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

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 arbitrary amount of time that the

Majority Opinion has plucked out of a hat.

42a

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 previously made the same

mistake when they arrested him on the 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, Martin

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 constitutional 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 Opinion: “If we treated every factual distinction from a precedential decision as necessarily

material, the doctrine of precedent would lose most of

its function.” Maj. Op. at 9 (citations omitted). The

Majority Opinion’s efforts to distinguish Cannon fail

because the two factual distinctions it invokes are

irrelevant to Cannon’s analysis. So the prior-precedent

43a

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 immaterial 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 precludes mine.

According to the Majority Opinion, “[u]nder Baker,

no violation 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

detention 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 between Baker and Sosa’s case—the

existence of an arrest warrant and a detention for

three days—are immaterial to Baker’s reasoning and

outcome, and why Baker’s reasoning actually requires us

to conclude that the jail deputies here violated Sosa’s

constitutional rights.

44a

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 deprive 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 outcome. 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 Supreme Court did. Rather, as other courts have

acknowledged, see Lee v. City of Los Angeles, 250 F.3d

668, 684 (9th Cir. 2001), and infra at 27–29, the

Supreme Court applied a legal reason—or limiting

principle—to determine that, for the circumstances

present in Baker, a three-day detention wasn’t a

constitutional deprivation of liberty.

Recognizing the limiting principle the Supreme

Court employed in Baker to arrive at that decision is

critical to properly applying 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 unconstitutional deprivation of liberty. But that’s a step the

Majority Opinion skips.

45a

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, 443 U.S.

at 145, when it transgresses the Sixth Amendment right

to a speedy trial. The second possible limiting principle

is a reasonableness principle: that the time after

which “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., arises when it becomes unreasonable,

under the totality of the circumstances, not to verify

the arrestee’s identity. For the reasons I explain

below, Baker’s limiting principle must be the latter.

I begin with the possible answer that the limiting

principle is tied to the Sixth Amendment speedy-trial

right. This possible answer 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 . . . .

443 U.S. at 144. But for two reasons, the speedy-trial

right cannot be the limiting principle governing when

the right to be free from continued detention after it

was or should have been known that the detained

person is entitled to release kicks in.

46a

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 Cannon, 1 F.3d

1558. And more to the point, if we thought Baker’s

limiting principle were the speedy-trial right, we could

not have decided Cannon the way that we did: the

seven days Parrott spent in custody were not nearly

enough to establish that Collins violated Parrott’s

speedy-trial rights. As we explained in Knight, a delay

in bringing a defendant to trial does not become

“presumptively prejudicial”—and therefore does not

violate his speedy-trial rights until the delay

“approaches one year.” 562 F.3d at 1323 (citation

omitted). Obviously, seven days is appreciably less

than a year, so it is not “presumptively prejudicial.” So

if we had read Baker’s limiting principle to be based

on the right to a speedy trial, we could not have

concluded that the seven-day detention period in

Cannon violated Parrott’s constitutional rights. But of

course, we did conclude that the seven-day detention

period in Cannon violated Parrott’s constitutional

rights. So we obviously did not view Baker’s limiting

principle as resting on the Sixth Amendment speedytrial right.

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 following arrest and prior to

actual trial, mere detention pursuant to a

valid warrant but in the face of repeated

47a

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-arrest procedures may be

enough to protect a misidentified person arrested

under a warrant against deprivation of liberty without

due process of law. Put simply, an overdetention claim

exists independently of a claim for any other constitutional violation, including a speedy-trial violation.

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

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, 451 F.3d 1308,

1325 (11th Cir. 2006). And “[w]e have previously recognized that

‘dicta from the Supreme Court is not something to be lightly cast

aside.’” Id. (citation omitted). Indeed, we applied this dicta in

Cannon. 1 F.3d at 1562 (“The Baker Court recognized, for

example, that after the lapse of a certain amount of time, continued detention in the face of repeated protests will deprive the

accused of liberty without due process.”). And we aren’t the only

ones. At least seven of our sister circuits have also applied the

same dicta. As I’ve noted, some have done it in the same situation

as we have here. See, e.g., Russo, 479 F.3d at 209; Gray, 150 F.3d

at 582; Fairley v. Luman, 281 F.3d 913, 917–18 (9th Cir. 2002).

And others have applied Baker’s dicta in other contexts. See, e.g.,

Schneyder, 653 F.3d at 330–31; Armstrong v. Squadrito, 152 F.3d

564, 575–76 (7th Cir. 1998); Jauch v. Choctaw Cnty., 874 F.3d

425, 433, 433 n.5 (5th Cir. 2017) (also citing Baker to “reject any

suggestion that the Sixth Amendment’s speedy-trial clause serves

as the only limit on prolonged pretrial detention”); Hayes v.

Faulkner Cnty., 388 F.3d 669, 673 (8th Cir. 2004).

48a

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. Leonard’s9 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.

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 custody 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

To avoid confusion, I use the McCollans’ first names in my

discussion of Baker.

49a

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.” Id. at 144 (emphasis added).

Then, the Court suggested that a state’s procedures or

lack thereof, depending 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

situation; (2) the procedures the state provided to

ensure Linnie was the wanted person; and (3) the

period during which Linnie was detained. On its face,

this, of course, is a totality-of-the-circumstances

analysis. See Lee, 250 F.3d at 684 (recognizing that the

Baker Court considered the circumstances in evaluating whether Linnie’s constitutional rights had been

violated).

In applying that totality-of-the-circumstances reasonableness 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 threeday period over which Linnie was held was the threeday 1973 “New Year’s weekend.” See id. at 140–45. The

first two considerations explained why determining

50a

whether Linnie was, in fact, the wanted person was

not simple and straightforward. 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 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 Liquid

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.

In 1972 and 1973, even facsimile machines were not widely

used and were extremely expensive (about $18,000 then). Lynn

Simross, “The Fax Revolution: At Home and at Work, Facsimile

Machines Have Become the Essential Business Tools,” LOS

ANGELES TIMES (Sept. 11, 1991), https://www.latimes.com/archiv

es/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.

51a

And even if the officers stored the paper file on the

jail premises, 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 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 arrested

person, that officer might not have been unable to

make a definitive identification. So the officer might

have needed to conduct 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 manually examining both

sets of fingerprints to see whether they shared at least

a certain number of the same features. This type of

investigation could require “weeks or months.”

Maryland v. King, 569 U.S. 435, 459 (2013).

And that burden mattered in the Supreme Court’s

assessment of whether, under the totality of the

circumstances, the actions of the Baker officers were

reasonable. As the Court explained, again showing it

was applying a totality-of-the-circumstances analysis,

“[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, 432 U.S. 197, 208 (1977)). In this respect,

the Court emphasized that Linnie was detained for not

just three days but for “three days over a New Year’s

weekend.” Id. at 145.

52a

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 principle 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

ascertainable 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. BA P.

Ry. Co. v. La. Oil Refin. Corp., 76 F.2d 465, 467 (5th

Cir. 1935) (citation and quotation marks omitted)

(emphasis added).

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 constitutional 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-holiday period.

New Year’s weekend is known for being a time

when, traditionally, less essential public services are

not fully staffed. So during that holiday period, it was

unreasonable to expect officers operating in a lightly

staffed jail to leave the jail to physically locate the file

53a

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 below, now, confirming identity is worlds

easier and faster (and requires far less effort).

Other courts have also recognized that the nature of

the particular 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 discounted non-business days in determining

the length of the period the Baker jailers had to

confirm Linnie’s identity. 822 F.2d 697, 700 (7th Cir.

1987). And in Lee, the Ninth Circuit rejected the

defendants’ argument there that, under Baker, the

plaintiff’s “due process claim must fail at the pleading

stage because he was incarcerated for only one day

before his extradition hearing . . . .” 250 F.3d at 684.

Rather, the Ninth Circuit explained, Linnie’s claim in

Baker failed based on the “circumstances” there. See

id. That is, the Ninth Circuit applied Baker’s totalityof-the-circumstances test to conclude that a one-day

incarceration violated the plaintiff’s due-process

rights there.

Yet in a single, conclusory sentence, the Majority

Opinion announces, “Nor did the Court rely on the

unstated ‘limiting principle’ of reasonableness that

our dissenting colleague has discerned from Baker.”

Maj. Op. at 9 (citation omitted). The Majority Opinion

fails to grapple with the Court’s deliberate word choices

and analysis showing that it applied a reasonablenessunder-the-totality-of-the-circumstances test. Instead,

54a

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

interpretation 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-thetotality-of-the-circumstances limiting principle here,

we must conclude that Sosa has stated a constitutional

claim. Six facts make the circumstances in this case

differ materially from those in Baker—all in ways that

favor Sosa’s claim. 11 Indeed, even the Majority

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-process analysis in constitutional law. Totalityof-the-circumstances tests also govern the analysis when a litigant raises an allegation of the violation of certain 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 circumstances. Tillis on behalf of Wuenschel v. Brown, 12 F.4th 1291,

1298 (11th Cir. 2021). Similarly, we apply a totality-of-thecircumstances test when we consider whether a person has

waived his Fifth Amendment right against self-incrimination.

55a

Opinion does not argue that Sosa’s claim fails under a

reasonableness-underthe-totality-of-the-circumstances

test. So we turn to the six material 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,

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

Automated Fingerprint Identification System (“IAFIS”)

in 1999. King, 569 U.S. at 459. And that heralded the

start of “rapid analysis” of fingerprints. Id. “Prior to

this time, the processing of fingerprint submissions

was largely a manual, labor-intensive process, taking

weeks or months to process a single submission.” Id.

(cleaned up). Still, as speedy as IAFIS was, its creation

was only a pit stop in the government’s race to rapidly

provide identification information to law-enforcement

United States v. Smith, 821 F.3d 1293, 1304–05 (11th Cir. 2016).

Totality-of-the-circumstances tests are prevalent in and significant to constitutional jurisprudence because we have recognized

the sometimes-competing needs and interests of our government

and of individuals’ rights to be free from government tyranny.

And totality-of-the-circumstances tests help to strike a balance

between these sometimes-dueling interests.

See, e.g., Police Booking Procedure, FINDLAW, https://www.

findlaw.com/criminal/criminal-procedure/booking.html (last visited

Jan. 19, 2023); see also King, 569 U.S. at 459 (“By the middle of

the 20th century, it was considered elementary that a person in

lawful custody may be required to submit to photographing

and fingerprinting as part of routine identification processes.”)

(cleaned up).

56a

officials. The government continued to make improvements, and in 2016—still before Sosa’s 2018 arrest—

the government renamed IAFIS the Next Generation

Identification (“NGI”) system “to more fully describe

the features and capabilities of the system” at that

time. Privacy Act of 1974; Implementation, 82 Fed.

Reg. 35,651 (Aug. 1, 2017). Those features include “the

increased retention and searching of fingerprints” and

other biometric services. Id. And as the name reflects,

a major purpose of the system is to definitively

“[i]dentif[y]” individuals who make their way to the

criminal-justice system. Id. at 35,652.

As particularly relevant here, NGI has a rapid

search function that is accessible to law-enforcement

officers nationwide. Next Generation Identification

(NGI), FBI, https://le.fbi.gov/science-and-lab-resourc

es/biometrics-and-fingerprints/biometrics/next-genera

tion-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 seconds.” 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

And even if a given search were to require longer to return

results, that would not increase by any more than a negligible

amount the effort the jail officer who input the fingerprint

information would have to invest. Rather, it would simply require

the officer to check the results a little while later.

57a

officers who put out the be-on-thelookout warning

thought they were, in fact, looking for Linnie. But in

Sosa’s case, the officers were not under the mistaken

impression 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 Supreme Court’s

words, Baker, 443 U.S. at 146, is necessary to clear the

person wrongly suspected of having committed the

crime. An “investigation” can require a lot of time,

effort, and leg work. And it would be neither practical

nor reasonable to expect jailers to engage in these

activities, along with their other duties.

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, OXFORD DICTIONARIES,

https://premium.oxforddictionaries.com/us/definition/a

merican_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 today,

performed for the very purpose of identifying detainees, expecting jailers to engage in this activity imposes

no additional burden 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

58a

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

likelihood 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 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

identifiers 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

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 succeed, DESERET NEWS

(Apr. 4, 2019), https://www.deseret.com/2019/4/4/206701 00/theonline-jeopardy-test-is-about-to-happen-and-ken-jennings-is-hereto-help-you-succeed#in-advance-of-the-online-jeopardy-test-whi

ch-is-available-april-9-11-jeopardy-legend

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