Amicus Curiae Brief — David Sosa, Petitioner v. Martin County, Florida, et al.

No. 22-1145

In The

Supreme Court of the United States

DAVID SOSA,

v.

Petitioner,

MARTIN COUNTY, FLORIDA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE DAVID SOSA,

DAVID SOSA, DAVID SOSA, DAVID SOSA, &

THE INSTITUTE FOR JUSTICE IN SUPPORT

OF PETITIONER DAVID SOSA

ROBERT E. JOHNSON

INSTITUTE FOR JUSTICE

16781 Chagrin Blvd., #256

Shaker Heights, OH 44120

JARED A. MCCLAIN

Counsel of Record

PAUL M. SHERMAN

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jmcclain@ij.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICI CURIAE ...............................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................4

I. This Court’s Erroneous Treatment of the

Fourth Amendment in Baker Has Bred

Confusion & More Wrong Decisions ................ 4

II. Certiorari Is Necessary Because the Eleventh

Circuit Made a Mockery of the Due Process

Clause .............................................................. 9

A. Baker Did Not Create a Three-Day

Exception to Due Process .......................... 9

B. Due

Process

Forbids

Police

from

Detaining Someone They Should Know

Is Innocent ............................................... 11

1. The Core Function of Due Process Is to

Protect

Against

the

Arbitrary

Deprivation of Life, Liberty &

Property ........................................... 12

2. Due Process Provides Both Procedural

& Substantive Protections for Core

Liberty Interests.............................. 14

ii

3. Knowing or Deliberate Indifference to

Innocence Violates Due Process...... 19

III. This Court Should Reiterate that Qualified

Immunity Does Not Protect Officers Who

Should Know They Are Violating Someone’s

Rights............................................................ 21

CONCLUSION ..........................................................26

iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Atwater v. Lago Vista,

532 U.S. 318 (2001)..............................................21

Baker v. McCollan,

443 U.S. 137 (1979).................. 5, 6, 8, 9, 10, 23, 24

Bank of Columbia v. Okely,

17 U.S. (4 Wheat.) 235 (1819) .............................12

Barbier v. Connolly,

113 U.S. 27 (1884)................................................12

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996)..............................................15

Brewster v. Beck,

859 F.3d 1194 (CA9 2017) .....................................5

Cannon v. Macon County,

1 F.3d 1558 (CA11 1993) .....................................23

Collins v. Harker Heights,

503 U.S. 115 (1992)........................................16, 17

Crawford-El v. Britton,

523 U.S. 574 (1998)..............................................22

iv

Daniels v. Williams,

474 U.S. 327 (1986)..............................................19

DeLade v. Cargan,

972 F.3d 207 (CA3 2020) .......................................7

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019)..........................................24

Elkins v. United States,

364 U.S. 206 (1960)..............................................17

Foucha v. Louisiana,

504 U.S. 71 (1992).................................... 13, 14, 16

Gerstein v. Pugh,

420 U.S. 103 (1975)................................................7

Graham v. Connor,

490 U.S. 386 (1989)..............................................17

Groh v. Ramirez,

540 U.S. 551 (2004)..............................................25

Harlow v. Fitzgerald,

457 U.S. 800 (1982)........................................21, 22

Harvey v. Horan,

285 F.3d 298 (CA4 2002) ...............................15, 16

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)..........................................22

v

Hope v. Pelzer,

536 U.S. 730 (2002).................................. 22, 23, 24

Ingraham v. Wright,

430 U.S. 651 (1977)..............................................13

Jackson v. Virginia,

443 U.S. 307 (1979)..............................................12

Kingsley v. Hendrickson,

576 U.S. 389 (2015)..............................................19

Manuel v. City of Joliet,

580 U.S. 357 (2017)......................................6, 7, 17

Marron v. United States,

275 U.S. 192 (1927)................................................8

Maryland v. Garrison,

480 U.S. 79 (1987)..............................................4, 8

McCoy v. Alamu,

141 S. Ct. 1364 (2021)..........................................23

Mo. Pac. Ry. Co. v. Humes,

115 U.S. 512 (1885)..............................................12

Mitchell v. Forsyth,

472 U.S. 511 (1985)..............................................22

Meyer v. Nebraska,

262 U.S. 390 (1923)..............................................13

vi

Nieves v. Bartlett,

139 S. Ct. 1715 (2019)..........................................16

Obergefell v. Hodges,

576 U.S. 644 (2015)..............................................14

Parea v. Baca,

817 F.3d 1198 (CA10 2016) .................................24

Sacramento County v. Lewis,

523 U.S. 833 (1998).................................. 12, 15, 19

Taylor v. Riojas,

141 S. Ct. 52 (2020)........................................23, 24

Taylor v. Stevens,

946 F.3d 211 (CA5 2019) .....................................24

Timpa v. Dillard,

20 F.4th 1020 (CA5 2021) ....................................23

Truax v. Corrigan,

257 U.S. 312 (1921)..............................................13

United States v. Place,

462 U.S. 696 (1983)............................................4, 5

Washington v. Glucksberg,

521 U.S. 702 (1997)........................................14, 15

Winslow v. Smith,

696 F.3d 716 (CA8 2012) .....................................19

vii

Yick Wo v. Hopkins,

118 U.S. 356 (1886)..............................................12

Zadvydas v. Davis,

533 U.S. 678 (2001)..............................................13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ................................................17

U.S. Const. amend. IV ................... 4, 5, 6, 7, 9, 17, 25

STATUTORY PROVISIONS

42 U.S.C. 1983 ...................................................3, 8, 21

OTHER AUTHORITIES

Ben Tyree, In Conversation with David Sosa, The

Daring (Feb. 22, 2021), https://bit.ly/3XhYsDM

(visited June 21, 2023) ................................................2

David Sosa, Department of Philosophy, University of

Texas at Austin, https://bit.ly/46tWxAr (visited June

21, 2023) ......................................................................2

David Sosa, LinkedIn,

https://bit.ly/43OKjQU (visited June 21, 2023) .........2

David Sosa, Nat’l Inst. of Food & Agric., U.S. Dep’t of

Agric.,

https://bit.ly/3Xhg8Q3

(visited

June

21, 2023) ......................................................................2

viii

Dr. David Sosa, U.S. News & World Report,

https://bit.ly/3PkbTkJ (visited June 21, 2023) ...........2

LexisNexis, SmartLink Comprehensive Person

Report for David Sosa

(accessed on June 13, 2023) ........................................2

LexisNexis, SmartLink Comprehensive Person

Report for John Roberts

(accessed on June 13, 2023) ......................................20

Sosa Construction, Inc.,

https://bit.ly/3CJjGkB (visited June 21, 2023) ...........2

INTEREST OF AMICI CURIAE

Amici are David Sosas. 1 Like Petitioner David

Sosa, they share their name with the subject of the

warrant the Respondents relied on to wrongfully

arrest Petitioner. They include David Sosa, age 32,

from Iredell County, North Carolina; David Sosa, age

51, from Mecklenburg, North Carolina; David Sosa,

age 32, from Los Angeles, California; and David Sosa,

age 50, also from Los Angeles, California.

As David Sosas, they’re interested in this case

because the ruling below puts them at risk of a

lawless three-day detention whenever they’re in

Florida, Georgia, or Alabama. With two David Sosas

from North Carolina, two from Los Angeles, and each

about the same age as another, the amici David Sosas

have more in common with each other than Petitioner

David Sosa had in common with the David Sosa with

an outstanding warrant in Texas.

The Institute for Justice is a national nonprofit

law firm that litigates to protect Americans’ liberty.

The Institute is interested in this case because it

implicates its work to uphold the Fourth Amendment,

to guarnatee the due process of law, and to combat

qualified immunity—a doctrine that frustrates

accountability and bars the vindication of

constitutional rights.

1 No party or its counsel authored any of this brief; and no person

other than the Institute for Justice. its members, or its counsel

contributed monetarily to this brief. The undersigned contacted

every parties’ counsel of record with timely notice that IJ was

filing this brief in support of Petitioner.

2

SUMMARY OF ARGUMENT

This case is about the constitutionality of Florida

police arresting and detaining David Sosa of Martin

County, Florida, on a Texas warrant from 1992 for a

man named David Sosa. To be clear, that’s not the

David Sosa who chairs the philosophy department at

the University of Texas. 2 Nor is it the New Yorkbased songwriter David Sosa. 3 It’s also not the David

Sosa who’s a cardiologist in Albuquerque, 4 the one

who works at the USDA, 5 the law student at

University of Miami, 6 or the David Sosa who owns a

construction company in Winston-Salem. 7

None of the David Sosas who submitted this brief

are wanted in Texas, either. Two are from North

Carolina and two from Los Angeles. Two of the amici

David Sosas have even been confused for each other

before! There are a lot of David Sosas in this

country—at least 924, 8 if not more. Only one of them

is suspected of selling crack cocaine in Harris County,

Texas, back in the 1990s. Yet every David Sosa now

2 David Sosa, Department of Philosophy, University of Texas at

Austin, https://bit.ly/46tWxAr (visited June 21, 2023).

3 Ben Tyree, In Conversation with David Sosa, The Daring (Feb.

22, 2021), https://bit.ly/3XhYsDM (visited June 21, 2023).

4

Dr. David Sosa, U.S. News & World Report,

https://bit.ly/3PkbTkJ (visited June 21, 2023).

5 David Sosa, Nat’l Inst. of Food & Agric., U.S. Dep’t of Agric.,

https://bit.ly/3Xhg8Q3 (visited June 21, 2023).

6 David Sosa, LinkedIn, https://bit.ly/43OKjQU (visited June 21,

2023).

7 Sosa Construction, Inc., https://bit.ly/3CJjGkB (visited June

21, 2023).

8 LexisNexis, SmartLink Comprehensive Person Report for

David Sosa (accessed on June 13, 2023).

3

faces up to three days in jail without any recourse

under § 1983 anytime police in Florida, Georgia, or

Alabama run a warrant check.

Ten of the 11 judges on the Eleventh Circuit ruled

that Petitioner David Sosa has no legal recourse for

police wrongfully arresting him twice based on the

same blatant mistake of identity. Seven of those

judges went much further and ruled that state

officials do not even violate the Constitution if they

hold an innocent person in jail for three days simply

because that person shares a name with someone else

in the country who has an outstanding warrant.

The decision below ignored the Petitioner’s Fourth

Amendment rights based on a misstatement of law in

one of this Court’s decisions that has been abrogated

but never expressly overruled. The constitutional

provision that the Eleventh Circuit did address—the

Due Process Clause—should have also protected

Sosa’s right to be free from arbitrary detainment, but

the court below flouted centuries of precedent

establishing that fundamental right. It should have

been obvious to both the arresting officers and the

court below that police cannot jail an innocent person

for three days before they verify his identity.

Petitioner David Sosa stated two claims for relief,

and qualified immunity should not bar his recovery

for the obvious violation of his rights. Unless this

Court grants his petition to correct the en banc court’s

egregious errors, none of the amici David Sosas are

safe within the Eleventh Circuit. Neither is anyone

else who shares a name with someone who has an

outstanding warrant.

4

ARGUMENT

I. This Court’s Erroneous Treatment of the

Fourth Amendment in Baker Has Bred

Confusion & More Wrong Decisions

The Fourth Amendment guarantees “[t]he right

of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures.” Yet the ruling below gives “persons”

far less protection than this Court and the lower

courts afford to “houses” and “effects.”

Searches and seizures are constitutional under

the Fourth Amendment only if probable cause

supports the scope of the government’s intrusion. The

government must maintain its legal justification for

the entire duration of its search or seizure. In

Maryland v. Garrison, for example, this Court

considered how the Fourth Amendment applied when

police search the wrong house. The Court observed

that police “were required to discontinue the search of

[an] apartment as soon as they * * * were put on notice

of the risk that they might be in a unit erroneously

included within the terms of the warrant.” 480 U.S.

79, 87 (1987) (emphasis added).

The Fourth

Amendment requires officers executing a warrant to

make “a reasonable effort to ascertain and identify

the place intended to be searched[.]” Id. at 88. Once

officers should know that their search or seizure has

exceeded its original justification, they must correct

their error and end the intrusion.

This Court applied a similar rule to the prolonged

seizure of someone’s “effects” in United States v.

5

Place, 462 U.S. 696 (1983).

Officers in Place

continued to seize a traveler’s luggage after their

justification lapsed. Id. at 709. Evaluating the overdetention, the Court ruled that the seizure became

constitutionally unreasonable due to its duration and

the officers’ lack of diligence. Ibid.

Applying Place’s rationale to the seizure of motor

vehicles, the Ninth Circuit has held that the

government needs a constitutionally sufficient reason

not merely to seize a car but also to retain it. Brewster

v. Beck, 859 F.3d 1194, 1197 (CA9 2017). The

challenged seizure in Brewster was pursuant to Los

Angeles’ policy of impounding vehicles for 30 days

whenever a person was caught driving with a

suspended license.

Ibid.

The Ninth Circuit

emphasized that “[t]he Fourth Amendment doesn’t

become irrelevant once an initial seizure has run its

course.” Id. at 1197. Although the “community

caretaking exception” allowed officers to seize the

vehicles initially, that exigency “vanished once the

vehicle arrived in impound and [someone] showed up

with proof of ownership and a valid driver’s license.”

Id. at 1196. At that point, the government was

required to “cease the seizure or secure a new

justification.” Id. at 1197.

What’s true for apartments, suitcases, and cars

must be equally true for persons, whom the Fourth

Amendment entitles to identical protection against

ongoing unreasonable seizures.

But in Baker v. McCollan, this Court concluded

erroneously that the Fourth Amendment has nothing

to say about an ongoing seizure so long as police relied

6

initially on a facially valid arrest warrant. 443 U.S.

137, 144 (1979). In just a few sentences, the Court

brushed aside the idea that the Fourth Amendment

applies to prolonged detentions—even if officers learn

or should have known that the probable cause on

which they relied ceased to exist. Ibid. According to

the majority, there is an apparent constitutional

dead-zone between the time the government executes

a valid arrest warrant and when it eventually

provides a speedy trial. See ibid.

The Court’s drive-by holding in Baker offered no

serious analysis or doctrinal support for its curbed

reading of the Fourth Amendment.

More

importantly, though, Baker’s holding is contrary to

this Court’s current jurisprudence and is no longer

good law.

In Manuel v. City of Joliet, all nine Justices

agreed that “[t]he protection provided by the Fourth

Amendment continues to apply after * * * the

issuance of an arrest warrant.” 580 U.S. 357, 374

(2017) (Alito, J., joined by Thomas, J., dissenting).

Police arrested Manuel during a traffic stop after they

discovered pills in his vehicle, even though a field test

revealed that the pills were not a controlled

substance. Id. at 360 (majority). After his arrest,

another test confirmed the negative result; yet the

arresting officer still swore out an affidavit that,

based on his training and experience, he knew the

pills were ecstasy. Id. at 361. This fabrication led a

local magistrate to find probable cause to continue

detaining Manuel. Ibid. As a result, Manuel spent

48 days in pretrial detention until a prosecutor

eventually dismissed his charges. Id. at 362.

7

After the Seventh Circuit held that unlawfuldetention claims cannot be brought under the Fourth

Amendment, this Court granted certiorari and

reversed. Id. at 363. As the Court explained, it had

been settled “some four decades ago that a claim

challenging pretrial detention fell within the scope of

the Fourth Amendment.” Id. at 364–65 (citing

Gerstein v. Pugh, 420 U.S. 103, 106 (1975)). The

Fourth Amendment, the Court continued, “prohibits

government officials from detaining a person in the

absence of probable cause,” whether that happens

through an arrest without probable cause or “when

legal process itself goes wrong” and a person’s

continued detention is “without constitutionally

adequate justification.” Id. at 367. The simple fact

that legal process continued past an initial probablecause determination “cannot extinguish the

detainee’s Fourth Amendment claim.” Ibid.

Accordingly, the Court concluded that “Manuel

stated a Fourth Amendment claim when he sought

relief not merely for his (pre-legal-process) arrest, but

also for his (post-legal-process) pretrial detention.”

Id. at 368. Because his 48 days of pretrial detention

were “unsupported by probable cause,” the ongoing

seizure of his person was “also constitutionally

unreasonable.” Ibid. See also DeLade v. Cargan, 972

F.3d 207, 212 (CA3 2020) (holding that “the Fourth

Amendment always governs claims of unlawful arrest

and pretrial detention * * * before the detainee’s first

appearance before a court,” as “the Supreme Court in

Manuel unanimously agreed”).

The same is true here. The Fourth Amendment

required the Respondents to make “a reasonable

8

effort to ascertain and identify” that the person in

their custody was the subject of a valid warrant. See

Garrison, 480 U.S. at 88. Even putting aside whether

it was reasonable to begin with for officers to rely on

a probable-cause determination from an out-of-state

and out-of-date warrant that described a different

David Sosa with particularity, 9 any probable cause

they had to believe that the Floridian David Sosa

committed a crime in Texas in the 1990s dissipated

almost immediately. As soon as the Respondents

knew or should have known that Sosa was not the

subject of an arrest warrant, his continued detention

became

constitutionally

unreasonable

and,

consequently, actionable under § 1983.

The Court below, however, overlooked Sosa’s

Fourth Amendment claim entirely because of this

Court’s erroneous construction of the Fourth

Amendment in Baker.

Although this Court’s

subsequent decision in Manuel abrogated that portion

of Baker, the misstatements in Baker continue to

breed confusion in the lower courts about whether the

Fourth Amendment applies to over-detention claims.

This case presents a perfect opportunity for this

Court to correct its error in Baker and clear up the

ongoing confusion. This Court should grant Sosa’s

petition and clarify that the Fourth Amendment

requires the government to be reasonably attentive to

9 The Fourth Amendment’s particularity requirement “prevents

the seizure of one thing [or person] under a warrant describing

another.” Marron v. United States, 275 U.S. 192, 196 (1927).

9

the risk that they may have made an error in their

initial assessment of probable cause.

II. Certiorari Is Necessary Because the

Eleventh Circuit Made a Mockery of the

Due Process Clause

The Court should also grant certiorari because the

decision below completely flouted well-settled

principles of due process. The seven-judge majority

determined that Baker lets police take three days to

verify whether the person they’ve arrested was the

subject of the warrant they were enforcing.

That a super-majority of the Eleventh Circuit

could conclude that the egregious facts in this case did

not violate Sosa’s constitutional rights shows why this

Court’s intervention is necessary. This Court should

grant certiorari to remind lower-court judges that,

whatever they might think about substantive due

process, they are bound to apply settled law in cases

squarely within the scope of the Due Process Clause.

A. Baker Did Not Create a Three-Day

Exception to Due Process

The primary error of the seven-judge majority was

treating Baker as if it created a bright-line exception

to the Due Process Clause under which police always

enjoy a three-day grace period before they must

confirm an arrestee’s identity. See Pet. App. 2a. The

majority determined that the three days allowed on

the facts in Baker “squarely control[led]” this case.

Pet. App. 2a. But Baker did not create some

10

generalizable exemption to due process, and its

reasoning does not extend to this case.

Baker involved unique facts: Linnie McCollan’s

brother Leonard forged a license to masquerade as

Linnie while he committed crimes, causing police to

mistakenly obtain an arrest for Linnie. 443 U.S. at

140–41. The McCollan brother the police arrested

was, in fact, the subject of the warrant. Linnie just

wasn’t the one who police should have been looking

for. But Leonard’s forged license made it difficult for

police to realize that they arrested the wrong person,

since the warrant described Linnie with particularity.

Police also didn’t have internet access or even digital

files to quickly confirm their mistake. Based on those

specific facts, this Court ruled simply that it was not

constitutionally unreasonable for police to take a

three-day holiday weekend to match Linnie’s identity

against Leonard’s booking photograph in their paper

files. Id. at 142.

By contrast, the Respondents arrested a random

David Sosa just because someone else with his name

was wanted in another state decades prior. The two

Sosas are a different age, height, and weight, and

have different social security numbers, tattoos, and

states of residence. A warrant that described the

wanted Sosa with particularity should have given

officers enough information to determine immediately

that the Sosa they pulled over was not wanted in

Texas. (And if the warrant’s description was not

particular

enough,

then

it

couldn’t

have

constitutionally supported the arrest anyway).

Whatever the merit of excusing police from their

duties over a holiday weekend, the Respondents

11

arrested and detained Sosa during the work week. All

the information the Respondents needed was right

there at their fingertips—especially since they’d

already made the same mistake before!

Had the Eleventh Circuit considered the

particular facts of David Sosa’s case instead of

“begin[ning] and end[ing]” its analysis “with Baker,”

Pet. App. 5a, the due-process violation should have

been obvious. As the next subsection explains, this

Court’s

precedent

clearly

establishes

that

government officials violate due process when they

detain someone arbitrarily, out of indifference to their

innocence.

B. Due Process Forbids Police from

Detaining Someone They Should Know

Is Innocent

This case should have been easy (and for the

original panel, it was). Although there are difficult

decisions about how far the Due Process Clause

extends, this case is not one of them. The rights at

issue firmly form the very foundation of due process,

which exists to prevent arbitrary deprivations of life,

liberty, and property. When government officials

should know that they are arresting an innocent

person, and they choose to do so anyway, their

conduct violates due process.

Volumes of this Court’s precedent establish as

much. But a super-majority of the Eleventh Circuit—

responsible for the liberty of 37 million residents—got

these basic points completely wrong. This Court

12

needs to grant certiorari to

fundamental role of due process.

reemphasize

the

1. The Core Function of Due Process Is

to Protect Against the Arbitrary

Deprivation of Life, Liberty &

Property

The founders adopted the concept of due process

from Magna Carta “to secure the individual from the

arbitrary exercise of the powers of government,

unrestrained by the established principles of private

rights and distributive justice.” Bank of Columbia v.

Okely, 17 U.S. (4 Wheat.) 235, 244 (1819). The

provision reflects that our constitutional principles do

not “leave room for the play and action of purely * * *

arbitrary power.” Yick Wo v. Hopkins, 118 U.S. 356,

370 (1886).

Although it can be difficult, “perhaps impossible,”

to define the full scope the Due Process Clause’s

protection, Mo. Pac. Ry. Co. v. Humes, 115 U.S. 512,

519 (1885), the provision “undoubtedly” forbids the

“arbitrary deprivation of life or liberty, or arbitrary

spoliation of property.” Barbier v. Connolly, 113 U.S.

27, 31 (1884). Indeed, this Court has been consistent

for centuries that a “protection against arbitrary

action” is “the core of the concept” of due process.

Sacramento County v. Lewis, 523 U.S. 833, 845

(1998); see also Jackson v. Virginia, 443 U.S. 307, 314

(1979) (“[F]reedom from a wholly arbitrary

deprivation of liberty” is “the most elemental of due

process rights.”).

13

Even when the Court has wrangled over the

provision’s reach in certain cases, the consensus has

remained that due process prevents the government

from depriving persons arbitrarily of their life,

liberty, and property. Compare Truax v. Corrigan,

257 U.S. 312, 329–30 (1921) (“[A] purely arbitrary or

capricious exercise of [governmental] power

[resulting in] a wrongful and highly injurious

invasion of property rights * * * is wholly at variance”

with due process.), with id. at 355 (Brandeis, J.,

dissenting) (“arbitrary or unreasonable” government

interference with liberty or property violates due

process).

Equally settled is the principle that “[f]reedom

from imprisonment—from government custody,

detention, or other forms of physical restraint—lies at

the heart of the liberty that Clause protects.”

Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “While

the contours of this historic liberty interest * * * have

not been defined precisely, they always have been

thought to encompass freedom from bodily restraint

and punishment.” Ingraham v. Wright, 430 U.S. 651,

673–74 (1977); cf. Meyer v. Nebraska, 262 U.S. 390,

399 (1923) (“Without doubt, [liberty] denotes not

merely freedom from bodily restraint but also * * *

those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free

men.”).

Just as it’s certain that due process protects

against arbitrary government conduct, the Court has

never wavered in its consensus that—whatever the

contours of “liberty”—it includes freedom from

physical restraint. Compare Foucha v. Louisiana,

14

504 U.S. 71, 80 (1992) (“Freedom from bodily restraint

has always been at the core of the liberty protected by

the Due Process Clause from arbitrary governmental

action.”), with id. at 90 (Kennedy, J., dissenting)

(“[W]e ought to acknowledge at the outset that

freedom from this restraint is essential to the basic

deprivation of liberty in the Fifth and Fourteenth

Amendments of the Constitution.”). Even those

Justices who read the provision more restrictively

recognize that it reaches “freedom from physical

restraint.” See, e.g., Obergefell v. Hodges, 576 U.S.

644, 725 (2015) (Thomas, J., dissenting) (“[T]his

Court’s earliest Fourteenth Amendment decisions

appear to interpret the Clause as using ‘liberty’ to

mean freedom from physical restraint.”).

It should be beyond dispute, then, that freedom

from arbitrary physical detention—like Sosa’s in this

case—is a foundational due-process right.

The

Respondents arrested Sosa simply because someone

else with his name has an outstanding warrant; they

ignored every fact indicating his innocence; and they

held him in jail for three days without bothering to

confirm his identity. Despite all that, seven judges

on the Eleventh Circuit disregarded settled law to

determine that Sosa’s three-day detention did not

even implicate the Due Process Clause.

2. Due

Process

Provides

Both

Procedural

&

Substantive

Protections

for

Core

Liberty

Interests

Due process means “more than fair process.”

Washington v. Glucksberg, 521 U.S. 702, 719–20

15

(1997).

The Clause protects against arbitrary

physical detainment regardless of “whether the fault

lies in a denial of fundamental procedural fairness or

in the exercise of power without any reasonable

justification in service of a legitimate governmental

interest.” Lewis, 523 U.S. at 845–46.

Again, there have been countless cases debating

just how substantive the provision’s substantive

component is. 10 But that debate is beyond the scope

of a case like this one, which concerns a core liberty

interest.

The due-process violation in this case was clear,

whether framed as a substantive or procedural failing

by Martin County police. The Respondents arrested

the wrong man on someone else’s warrant, and they

imprisoned him for three days before they checked to

see if he was the person described in the warrant.

Whether framed as a substantive right to be free from

arbitrary detention or a procedural right to have

police confirm an arrestee’s identification prior to

detaining them, the result is the same. After all, such

an arbitrary deprivation was possible only because

the Respondents’ booking procedures did not

adequately safeguard Sosa’s constitutional rights.

His arbitrary detention on someone else’s warrant

violates due process—whether you want to call it a

procedural or substantive failing. See, e.g., Harvey v.

10 The due-process right against arbitrary punishment has, for

instance, applied to limit punitive damages—even when a

litigant had notice and an opportunity to be heard. See BMW of

N. Am., Inc. v. Gore, 517 U.S. 559, 586 (1996) (Breyer, J.,

concurring).

16

Horan, 285 F.3d 298, 315, 318–19 (CA4 2002) (Luttig,

J., concurring in rehearing denial) (“[T]he claimed

right of access to evidence partakes of both procedural

and substantive due process. And with a claim such

as this, the line of demarcation is faint.”).

While this Court sometimes views substantivedue-process claims circumspectly, that’s out of a

reluctance to expand the Due Process Clause’s “more

generalized notion” of liberty to reach new activity

covered more explicitly by another amendment.

Graham v. Connor, 490 U.S. 386, 395 (1989). Sosa’s

due-process claim, however, does not raise those

concerns because it does not “break new ground in

th[e] field.” Collins v. Harker Heights, 503 U.S. 115,

125 (1992). In cases like this one concerning a central

liberty interest, the Court has “always been careful

not to ‘minimize the importance and fundamental

nature’” of due process. Foucha, 504 U.S. at 80

(citation omitted).

One constitutional right does not lose its force

whenever government conduct violates multiple

fundamental rights. If, for example, police arrest

someone without probable cause in retaliation for

their political speech, the arrest violates both the

First and Fourth Amendment. See, e.g., Nieves v.

Bartlett, 139 S. Ct. 1715, 1731 (2019) (Gorsuch, J.,

concurring in part) (“[The First Amendment operates

independently of the Fourth and provides different

protections.”). Similarly, an arbitrary detainment

may sometimes implicate the Fourth Amendment,

17

the Due Process Clause, or both, 11 depending on

things like whether probable cause supported the

arrest and how far “legal process” progressed before

officers disregard the detainee’s innocence. See

Manuel, 580 U.S. at 368.

To artificially erase the core function of one

constitutional protection over an entire category of

cases just because another may, in some

circumstances, provide overlapping protection risks

creating an “aircraft-carrier-sized loophole” in the

Constitution. Pet. App. 26a. Judge Newsom’s

concurrence below (Pet. App. 15a–20a) is a perfect

encapsulation of how certain judges’ opposition to

substantive due process undermines our freedom

from arbitrary government conduct. His concurrence

ignores all this Court’s precedent confirming that due

process provides substantive protection against

arbitrary physical detainment, and then warns that

granting Sosa redress for an obvious violation of that

fundamental right would—somehow—lead to a

freewheeling parade of terribles. Whatever the

legitimacy of the Court’s concerns in Graham and

Collins about recognizing “new” liberty interests, they

have nothing to do with cases about a core liberty

11 Indeed, the related protections of the two rights helps explain

why the Fourteenth Amendment’s Due Process Clause

incorporated the Fourth Amendment against the states. See,

e.g., Elkins v. United States, 364 U.S. 206, 213 (1960) (explaining

that the Fourteenth Amendment prohibits unreasonable

searches and seizures because “[t]he security of one’s privacy

against arbitrary intrusion by the police is implicit in the concept

of ordered liberty.” (cleaned up)).

18

interest like the freedom from arbitrary physical

confinement.

When police violate the most basic right to be free

from incarceration, there should be no debate that

due process applies. Nor should there be any debate

that due process requires something more

substantive than notice and an eventual opportunity

to be heard when police jail someone for no good

reason—even if the wrongful detention lasts for “only”

three days. Pet. App. 2a.

An average person on the street would hear the

facts of this case and understand that the

Respondents violated our social compact. The amici

David Sosas are certainly now aware of just how

arbitrary it is to let officers arrest anyone who shares

a name with a criminal suspect.

Any interpretation of the Constitution that

concludes the Respondents’ conduct was okay because

they only took three days to determine that they

imprisoned the wrong person should be discarded. No

sound

constitutional

principle

permits

the

government to violate someone’s fundamental rights

for three days but not four. While the duration of an

injury can affect the remedy, it does not eliminate the

underlying right. That seven judges on the Eleventh

Circuit misunderstood such fundamental points

confirms the need for this Court to grant certiorari.

19

3. Knowing or Deliberate Indifference

to Innocence Violates Due Process

The Respondents violated Sosa’s due-process

rights because they deliberately detained him when

they knew or should have known he was innocent.

Historically, due process has “applied to deliberate

decisions of government officials to deprive a person

of life, liberty, or property.” Daniels v. Williams, 474

U.S. 327, 331 (1986). An officer’s “intentional or

reckless” decision to either ignore or fail to investigate

evidence of a detainee’s innocence violates due

process. Winslow v. Smith, 696 F.3d 716, 732 (CA8

2012).

Due process requires an officer’s forethought

whenever feasible.

Lewis, 523 U.S. at 851.

Purposeful, deliberate, and even reckless intrusions

on life, liberty, or property can violate due process.

See Kingsley v. Hendrickson, 576 U.S. 389, 396

(2015). Accordingly, the Court assesses “unhurried

judgments, upon the chance for repeated reflection,

largely uncomplicated by the pulls of competing

obligations” under a stricter standard than those

“necessarily made in haste, under pressure, and []

without the luxury of a second chance.” Lewis, 523

U.S. at 852–53. Officers responding to a prison riot or

a sudden high-speed chase enjoy a “much higher

standard of fault” than those with time to deliberate

who should know that their actions will violate

someone’s rights. Ibid.

Had the Eleventh Circuit applied that established

standard here, the Respondents’ potential for liability

20

should have been obvious. They knew or should have

known that they had the wrong David Sosa based on

information that was readily available to them. Sosa

even explained the exact issue since they’d already

made the same mistake before. Yet, the Respondents

made a deliberate choice to ignore all exculpatory

evidence and detain the wrong Sosa anyway. That

indifference to innocence violates due process.

In a country of 332 million people, arresting

someone based solely on their name is a surefire way

to arrest the wrong person.

The Respondents’

decision to do so—after ample opportunity for

reflection—with no personal knowledge of the

underlying probable cause and in complete disregard

of all of Sosa’s identifying characteristics was wholly

arbitrary. There are over 920 David Sosas in the

country. 12 It’s a common name, and officers had no

reason to believe that the David Sosa they pulled over

was the one suspected of dealing drugs four states

away 25 years prior.

The bright-line exception to due process that this

case created puts everyone’s liberty at risk whenever

they interact with law enforcement in the Eleventh

Circuit. There are, for instance, well over 17,000

people named John Roberts in this country. 13 Odds

are that at least one of them has an outstanding

warrant, and that it won’t be the one who police pull

12 Supra note 8.

LexisNexis, SmartLink Comprehensive Person Report for

John Roberts (accessed on June 13, 2023).

13

21

over. This Court should grant certiorari to correct the

Eleventh Circuit’s grievous error.

III. This Court Should Reiterate that

Qualified Immunity Does Not Protect

Officers Who Should Know They Are

Violating Someone’s Rights

The Court should also grant certiorari to enunciate

that the Respondents’ violations of Sosa’s

constitutional rights were obvious and, as a result,

are ineligible for qualified immunity. Even if the

Court does not reach qualified immunity, a decision

that emphasizes the obviousness of the violations

would provide valuable guidance to the Eleventh

Circuit on remand. That clarity is important not just

for Petitioner David Sosa, but for amici David Sosas

as well.

Qualified immunity does not shield state officers

for conduct they should know violates federal law.

When Congress enacted the Ku Klux Klan Act of

1871, now codified at § 1983, its explicit purpose was

to provide a right of action against state officers who

violate federally protected rights. This Court then

created an exception to that unqualified right of

action, one which allows officers to cross unclear

constitutional lines in “the spur (and in the heat) of

the moment” without fear of “surviving judicial

second-guessing.” Atwater v. Lago Vista, 532 U.S.

318, 347 (2001). But that grant of immunity is still

qualified; it’s not a one-size-fits-all “license to lawless

conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819

(1982).

22

Under qualified immunity, officers are not “wholly

free from concern for [] personal liability” when they

have the chance to deliberate before they act.

Mitchell v. Forsyth, 472 U.S. 511, 524 (1985). The

balance the Court struck between remedying

constitutional injuries and protecting state officers is

a “fair notice” standard. See Hope v. Pelzer, 536 U.S.

730, 739–41 (2002). Qualified immunity denies

redress to individuals injured by the government only

when an officer could not be “expected to know that

certain conduct would violate * * * constitutional

rights.” Harlow, 457 U.S. at 819. When officers

should know their conduct will intrude on federally

protected rights, they must still “be made to hesitate”

and will be liable if they don’t. Ibid.

Officers with time to deliberate have a fair chance

to consider whether their actions will violate the

Constitution. When internal deliberations or legal

advice should resolve how the law applies, there’s no

reason to treat state officers any more leniently than

when the law is readily apparent. Cf. Hope, 536 U.S.

at 741 (“A general constitutional rule already

identified in the decisional law may apply with

obvious clarity to the specific conduct in question.”

(cleaned up)); Hoggard v. Rhodes, 141 S. Ct. 2421,

2422 (2021) (statement of Thomas, J.) (distinguishing

between calculated choices and split-second ones).

There is nothing unfair about holding officers

accountable when they “knew, or should have

known,” that their actions were unconstitutional.

Crawford-El v. Britton, 523 U.S. 574, 591 (1998).

Officers remain subject to liability when they had

“fair warning” of how the law applies, Hope, 536 U.S.

23

at 739–41, regardless of whether the notice comes

from a factually analogous case, ibid., or because the

violation should have been obvious, see, e.g., McCoy v.

Alamu, 141 S. Ct. 1364 (2021); Taylor v. Riojas, 141

S. Ct. 52, 54 (2020).

The judges who joined Judge Jordan’s “reluctant”

concurrence below missed this key point due to the

mixed signals this Court has sent about fair notice.

They

agreed

that

Sosa’s

detention

was

unconstitutional but concluded that the officers were

entitled to qualified immunity because those judges

read this Court’s cases to demand that “the facts of

prior cases be very, very close to the ones at hand” so

that officers have “reasonable notice” of what the law

prohibits. Pet App. 12a–13a. Much like the majority,

Judge Jordan’s concurrence erred by reducing Baker

to the number of days police detained Linnie

McCollan. See id. at 13a (“Mr. Sosa was detained for

three days, the same time period at issue in Baker,

while Cannon [v. Macon County, 1 F.3d 1558 (CA11

1993),] involved a detention of seven days.”).

This Court has admonished, however, that such

“rigid[] overreliance on factual similarity” is

“danger[ous].” Hope, 536 U.S. at 742; see also Timpa

v. Dillard, 20 F.4th 1020, 1034 (CA5 2021) (“notable

factual distinctions” do not preclude “reasonable

warning”). “[A] general constitutional rule * * * may

apply with obvious clarity to the specific conduct at

issue” without any caselaw directly on point. Hope,

536 U.S. at 741 (citation omitted).

Indeed, this Court’s recent precedent confirms

that officers are on notice of obvious constitutional

24

violations even when their illegal conduct doesn’t last

quite as long as similar government conduct that

courts have held unconstitutional. In Taylor v.

Riojas, for example, this Court summarily reversed a

decision holding that prison officials did not have fair

notice that they could not force a prisoner to sleep in

a cell overflowing with excrement for “only six days”

just because the only prior precedent addressed

officers who did so for “months on end.” Taylor v.

Stevens, 946 F.3d 211, 222 (CA5 2019), rev’d sub nom.

141 S. Ct. at 54. Similarly, the Respondents should

have known their conduct was unconstitutional even

though it lasted “only” three days instead of seven.

A constitutional rule can be so obvious that officers

don’t need a precisely analogous case to provide “fair

warning that their alleged [behavior] was

unconstitutional.” Hope, 536 U.S. at 739–41. Judges

scrutinizing official conduct do not “exhibit a naiveté

from which ordinary citizens are free.” Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2575 (2019)

(citation omitted).

Nor must they conduct a

“scavenger hunt” for factually identical precedent to

justify their every decision. Parea v. Baca, 817 F.3d

1198, 1204 (CA10 2016) (citation omitted).

As Section II.A. explained, there are many

material factual differences that distinguish the

unique circumstances of Baker and make the

constitutional violation in this case clear cut. Unlike

the officers in Baker, there was no warrant for the

Petitioner’s arrest; officers arrested the wrong David

Sosa twice and held him in jail without bothering to

check his identity. The Respondents had immediate

25

access to all the information they needed to confirm

that they arrested the wrong man. Nothing in the

Due Process Clause allows them three days to act on

that information.

It has been obvious since the founding that

government agents cannot lock someone in jail for

several days without probable cause to believe that

they, personally, committed a crime. The officers here

had plenty of time to deliberate, and they chose to

ignore all indications that they were putting an

innocent man in jail—a clear violation of his

constitutional rights. No reasonable officer can rely

on an arrest warrant that identifies a different person

than the one they arrest—simply because two people

share the same name. Cf. Groh v. Ramirez, 540 U.S.

551, 563–65 (2004) (officer could not rely on a warrant

that plainly did not comply with the Fourth

Amendment).

While amici echo Judge Jordan’s call for this Court

“correct” the “legal fiction” of qualified immunity, Pet.

App. 13a–14a, amici disagree that qualified

immunity is appropriate in this case, even under this

Court’s “regrettable” precedent. See id. at 14a. The

Constitution demands more from officers who conduct

warrant checks than the Respondents did in this case.

It should have been immediately obvious that they

had the wrong David Sosa before they arrested him.

There’s no excuse for taking three days to figure it

out.

26

CONCLUSION

This Court should grant the other David Sosa’s

petition for certiorari.

Respectfully submitted,

ROBERT E. JOHNSON

INSTITUTE FOR JUSTICE

16781 Chagrin Blvd. #256

Shaker Heights, OH 44120

JARED A. MCCLAIN

Counsel of Record

PAUL M. SHERMAN

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jmcclain@ij.org

Counsel for Amici Curiae

June 23, 2023