by Kathyrn McIlroy, Associate Member, University of Cincinnati Law Review Vol. 91
The Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution prohibit states from depriving any person of “life, liberty, or property without due process of law.”1U.S. Const. amends. V, XIV, § 1. The Due Process Clauses have been interpreted to have two components: procedural due process and substantive due process.2Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501 (1999), https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2480&context=lawreview [https://perma.cc/XXU7-H264]. Procedural due process simply ensures that a government properly follows the procedures laid out when a person’s life, liberty, or property have been deprived; however, substantive due process determines if the government has a sufficient purpose for the deprivation of life, liberty, or property.3Id. Thus, in order for a plaintiff to succeed under a substantive due process claim, they must prove that the government did not have a sufficient justification for depriving them of life, liberty, or property.4Id. The Fourth Amendment of the United States Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”5U.S. Const. amend. IV. In criminal proceedings, the Amendments to the United States Constitution are often invoked concurrently, including the Fourth, Fifth, and Fourteenth Amendments.6Constitutional Rights in Criminal Proceedings, Justia, https://www.justia.com/criminal/procedure/other-constitutional-rights/ [https://perma.cc/T7U5-G6AT].
This article explores the Eleventh Circuit’s recent decision that a detained arrestee’s substantive due process rights were not violated when he was detained based on mistaken identity.7Sosa v. Martin Cnty., Fla., 57 F.4th 1297 (11th Cir. 2023). In similar situations, the Sixth Circuit has held that substantive due process rights are violated,8Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579 (6th Cir. 1998). the Ninth Circuit has utilized a procedural due process analysis,9Garcia v. Cnty. of Riverside, 817 F.3d 635 (9th Cir. 2016). and the Second Circuit has held that mistaken-identity detainees cannot be over detained under the Fourth Amendment’s protection against seizure of one’s person.10Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007). Part II provides background on this circuit split and the reasoning behind each circuit’s decision. Part III discusses the circuit courts’ arguments and how other circuits should rule on this issue as well as the possible need for a decision from the Supreme Court of the United States. Finally, Part IV concludes by arguing that individuals detained based on mistaken identity deserve more protections.
A. Eleventh Circuit
In Sosa v. Martin Cnty., Fla., David Sosa had been arrested twice by the Martin County Sheriff’s Department based on a valid arrest warrant for a different person with the same name.11Sosa, 57 F.4th at 1299. The 2014 and 2018 arrests were made after Sosa was stopped for a traffic violation.12Id. During both arrests, Sosa informed the officers that he was not the wanted man, and that his characteristics did not match the wanted man.13Id. Importantly, during the 2018 arrest, Sosa told the officers about the same misidentification that led to his arrest in 2014.14Id. In 2014, Sosa was only held for roughly three hours before he was released; however, in 2018, Sosa’s detention lasted three days (Friday to Monday), and he was only released when fingerprints confirmed his identity.15Id. Sosa sought relief under 42 U.S.C. § 1983, alleging that his rights were violated under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment.16Id. 42 U.S.C. § 1983 indicates that any person who deprives a citizen of the United States of their rights, privileges, or immunities will be liable to the injured citizen.1742 U.S.C. § 1983 (1996). The district court dismissed Sosa’s complaint for failure to state a claim.18Sosa, 57 F.4th at 1300. Though the Eleventh Circuit affirmed in part and reversed in part, it later voted in favor of rehearing the case en banc.19Id. Upon rehearing, the Eleventh Circuit held that Sosa’s claim did not give rise to a substantive due process claim.20Id. at 1303.
The Eleventh Circuit based its decision largely on Baker v. McCollan,21Baker v. McCollan, 99 S. Ct. 2689 (2014). decided by the Supreme Court of the United States. In Baker, the plaintiff also claimed a wrongful detention of a few days based on mistaken identity.22Sosa, 57 F.4th at 1300. The Supreme Court denied him relief, reasoning that the Constitution has no guarantee that innocent people will never be arrested, that officers do not have to “investigate independently every claim of innocence . . . based on mistaken identity,” and there is no guarantee that investigations will be “error-free.”23Id. In Sosa, relying on Baker, the Eleventh Circuit insinuated that the Fourteenth Amendment does not protect against a “few-days detention.”24Id. Thus, the Eleventh Circuit held that if there is a valid arrest warrant and the detention lasts no more than three days, there is no violation of due process rights.25Id. Because the Martin County Sherriff’s Department had a valid arrest warrant for a man with the same name as Sosa, and Sosa was only detained for three days, the Eleventh Circuit held that Sosa had no valid substantive due process claim.26Id.
The Sosa dissent emphasized that there is no dispute that Sosa was and is an innocent man, and the Martin County Sheriff’s officials had good reason to believe they had arrested the wrong person.27Id. at 1309. The dissent stated, “three of my colleagues claim that . . . no constitutional violation occurs until the detained person’s speedy-trial rights are violated—that is, about a year or more later. 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.”28Id. Further, the dissent relied on Cannon v. Macon County,29Cannon v. Macon Cnty., 1 F.3d 1558 (11th Cir. 1993). another Eleventh Circuit case. Cannon held 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,” and 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.”30Sosa, 57 F.4th at 1310. The dissent concluded by stating that Sosa’s substantive due process rights to be free from prolonged detention were violated because the Sheriff’s Department knew or should have known Sosa was entitled to release, and the dissent also introduced the idea that the Fourth Amendment of the Constitution is violated when officers have the ability to determine if a person they have in custody is the correct person and they do not do so.31Id. at 1334.
B. Other Circuits
The Sixth Circuit examined a similar issue in Gray v. Cuyahoga County Sheriff’s Department. In Gray, the plaintiff was stopped and ticketed for driving without a license and eventually sentenced to five days in jail.32Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579, 580 (6th Cir. 1998). Upon his booking, it was discovered that there was an outstanding warrant for a person with the same name, and the plaintiff was ultimately detained for over a month despite pleas that he was not the wanted man.33Id. at 580-81. Also relying on both Baker and Cannon, the Sixth Circuit found that because the officials involved in the plaintiff’s detention had sufficient proof that the plaintiff was not the wanted man, his due process rights under the Fourteenth Amendment were violated.34Id. at 583. However, the Sixth Circuit did note that the plaintiff’s detention of forty-one days was much longer than the three-day detention present in Baker.35Id. at 582. The Sixth Circuit also relied on two other cases in which the detention based on mistaken identity lasted thirty days in one case and twelve days in another.36Id.; see also Rodriguez v. Roth, 516 F. Supp. 410 (E.D. Pa. 1981); Andujar v. City of Boston, 760 F. Supp. 238 (D. Mass. 1991).
In Garcia v. County of Los Angeles, the Ninth Circuit examined this issue. In Garcia, the plaintiff was arrested for driving under the influence, and, upon his booking, a warrant for a man with the same name and date of birth as the plaintiff was discovered, and plaintiff was detained despite his complaints of misidentification and indications that plaintiff differed from the wanted man such as different heights and weights, different fingerprints, and different criminal histories.37Garcia v. Cnty. of Riverside, 817 F.3d 635, 638 (9th Cir. 2016). The Ninth Circuit stated that though the plaintiff’s claim in Baker did not give rise to a substantive due process claim, there are situations where detention based on mistaken identity could lead to a substantive due process claim.38Id. at 640. The Ninth Circuit held that mistaken incarceration violates the Due Process Clause when either “(1) the circumstances indicated to the defendants that further investigation was warranted, or (2) the defendants denied the plaintiff access to the courts for an extended period of time.”39Id. Thus, the Ninth Circuit considers whether a mistaken detainee was denied a procedural safeguard of verifying that the warrant their detention is based on was actually for them, despite protests of innocence.40Id. As a result, in Garcia, the Ninth Circuit held that the plaintiff’s Fourteenth Amendment rights were violated.41Id. at 643.
In Russo v. City of Bridgeport, the Second Circuit analyzed the issue of detention based on mistaken identity. In Russo, a video surveillance tape analyzed after a robbery provided an image of a man with similar characteristics to the plaintiff, and an arrest warrant for plaintiff was subsequently ordered.42Russo v. City of Bridgeport, 479 F.3d 196, 199 (2d Cir. 2007). The plaintiff was in custody for seven months despite some of his physical characteristics not matching the perpetrator’s.43Id. at 199-200. On the plaintiff’s claim for prolonged detention, the Second Circuit held that the plaintiff’s rights were violated during his detention; however, the court stated that in such situations of detention based on mistaken identity, the right should be analyzed under the Fourth Amendment rather than substantive due process under the Fourteenth Amendment.44Id. at 208. The Second Circuit reasoned that the Constitution explicitly protects against unlawful seizures taken by the government that deny a person freedom of movement in the Fourth Amendment, and, therefore, substantive due process need not even be analyzed.45Id. In light of this reasoning, the Second Circuit held in Russo that the plaintiff’s Fourth Amendment rights were violated by his prolonged detention.46Id. at 209.
Although the Supreme Court has ruled on a variety of cases involving alleged unlawful detention, Baker is the only Supreme Court case providing guidance on prolonged detention based on mistaken identity due to a valid arrest warrant; however, Baker does utilize a variety of precedent surrounding detention in reaching its conclusion.47Baker v. McCollan, 99 S. Ct. 2689 (2014). Unsurprisingly, all four of the circuit opinions outlined above utilize the Supreme Court’s holding in Baker to determine the outcome of the facts before them. Given the Eleventh Circuit’s recent decision, it is time for Baker to be reconsidered in the nation’s highest court. Upon such reconsideration, or upon consideration of this issue in a lower court, the Fourth Amendment argument should be examined.
As the dissents in the Sosa and the Russo opinions suggest, the Fourth Amendment is implicated when a person is detained on mistaken identity. The Supreme Court itself said in Baker, “[b]y virtue of its ‘incorporation’ into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.”48Id. at 2694. However, the Baker Court stated that because the probable cause standard is the same for an arrest as it is for pretrial detention, a person detained pursuant to a valid warrant “is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.”49Id. Thus, the Court insinuated that a person detained on mistaken identity, if their arrest was pursuant to a valid warrant that was received by a showing of probable cause, is not entitled to an opportunity to prove their innocence. However, this is counterintuitive when the valid warrant is not for the individual that is detained.
As a result, the argument that the Fourth Amendment should control is persuasive because it does seem to provide greater protections to those wrongfully detained in situations such as those presented herein. Utilizing the Fourth Amendment, which protects against unreasonable seizures,50U.S. Const. amend. IV. would allow the reviewing court to assess whether it was reasonable for the arresting officer to believe that the person they arrested and detained was actually the person for whom the warrant was granted.51Sosa v. Martin Cnty., Fla., 57 F.4th 1297, 1329-30 (11th Cir. 2023). Putting this into the context of Sosa, the arresting officers, on two occasions, only considered Sosa’s name to invoke probable cause while there were a number of various other identifying factors that differentiated the plaintiff Sosa with the Sosa for whom the warrant was actually granted for.52Id. at 1299. Further, as the Sosa dissent points out, Baker was decided at a time when it might have been more difficult for an officer to reasonably take efforts to identify the person they have detained, but, in modern times, it can take less than a minute to prove the identity of someone via fingerprint testing.53Id. at 1331.
The Baker Court also emphasized the length of the detention in determining if Constitutional rights were violated.54Id. at 2695. Further, the Baker Court indicated that prolonged detention after “repeated protests of innocence” could amount to a deprivation of liberty without due process of law, but the detention in that case of three days “could not amount to such a deprivation.”55Id. Relying on this idea, the Sixth Circuit case involved a detention of over forty-one days,56Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579, 582 (6th Cir. 1998). and the Baker Court arguably would have agreed that forty-one days was such a prolonged detention as to amount to a deprivation of liberty. Similarly, the Second Circuit case involved detention of seven months.57Russo v. City of Bridgeport, 479 F.3d 196, 199-200 (2d Cir. 2007).
The Eleventh Circuit’s dissent is persuasive in suggesting that the three-day detention in Baker did not create a “magic number” for courts to consider when determining if the detention was unnecessarily prolonged.58Sosa, 57 F.4th at 1318. The Supreme Court in Baker simply created a limiting principle that can be applied to other facts in determining whether prolonged detention is unconstitutional.59Id. Future courts should consider the reasonableness test that the dissent suggests arises out of Baker’s holding: “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,’ when it becomes unreasonable, under the totality of the circumstances, not to verify the arrestee’s identity.”60Id. at 1320 (emphasis added). Thus, the amount of time that the individual is detained should matter less than whether it was unreasonable for the detention to continue given all the facts of the situation. This can also introduce the Ninth Circuit’s procedural due process argument as a potential consideration in future cases.61Garcia v. Cnty. of Riverside, 817 F.3d 635, 640 (9th Cir. 2016).
The dissent in the Eleventh Circuit’s Sosa decision presents arguments that should be utilized in future cases, either in other courts or in the Supreme Court of the United States, in determining whether detention based on mistaken identity pursuant to a valid arrest warrant is unconstitutional.62See discussion supra Part III. The dissenting opinion utilizes the Sixth, Ninth, and Second Circuits’ holdings in making its arguments,63Sosa, 57 F.4th at 1313-14. and, if this circuit split is to be resolved via a reconsideration of Baker, those opinions should be reviewed. One purpose of the Fifth and Fourteenth Amendments is to protect people from the deprivation of their life, liberty, and property, among other protections.64U.S. Const. amends. V, XIV, § 1. One purpose of the Fourth Amendment is to protect people from unreasonable searches and seizures.65U.S. Const. amend. IV. When a person is detained based on mistaken identity simply because an arrest warrant exists for another person with the same name, those protections, either alone or together, are compromised. In a time where a person’s identity can reasonably be determined in minutes, no one should be detained on the basis of mistaken identity, even if it is only a “few-days detention.”
- 1U.S. Const. amends. V, XIV, § 1.
- 2Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501 (1999), https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2480&context=lawreview [https://perma.cc/XXU7-H264].
- 5U.S. Const. amend. IV.
- 6Constitutional Rights in Criminal Proceedings, Justia, https://www.justia.com/criminal/procedure/other-constitutional-rights/ [https://perma.cc/T7U5-G6AT].
- 7Sosa v. Martin Cnty., Fla., 57 F.4th 1297 (11th Cir. 2023).
- 8Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579 (6th Cir. 1998).
- 9Garcia v. Cnty. of Riverside, 817 F.3d 635 (9th Cir. 2016).
- 10Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007).
- 11Sosa, 57 F.4th at 1299.
- 1742 U.S.C. § 1983 (1996).
- 18Sosa, 57 F.4th at 1300.
- 20Id. at 1303.
- 21Baker v. McCollan, 99 S. Ct. 2689 (2014).
- 22Sosa, 57 F.4th at 1300.
- 27Id. at 1309.
- 29Cannon v. Macon Cnty., 1 F.3d 1558 (11th Cir. 1993).
- 30Sosa, 57 F.4th at 1310.
- 31Id. at 1334.
- 32Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579, 580 (6th Cir. 1998).
- 33Id. at 580-81.
- 34Id. at 583.
- 35Id. at 582.
- 36Id.; see also Rodriguez v. Roth, 516 F. Supp. 410 (E.D. Pa. 1981); Andujar v. City of Boston, 760 F. Supp. 238 (D. Mass. 1991).
- 37Garcia v. Cnty. of Riverside, 817 F.3d 635, 638 (9th Cir. 2016).
- 38Id. at 640.
- 41Id. at 643.
- 42Russo v. City of Bridgeport, 479 F.3d 196, 199 (2d Cir. 2007).
- 43Id. at 199-200.
- 44Id. at 208.
- 46Id. at 209.
- 47Baker v. McCollan, 99 S. Ct. 2689 (2014).
- 48Id. at 2694.
- 50U.S. Const. amend. IV.
- 51Sosa v. Martin Cnty., Fla., 57 F.4th 1297, 1329-30 (11th Cir. 2023).
- 52Id. at 1299.
- 53Id. at 1331.
- 54Id. at 2695.
- 56Gray v. Cuyahoga Cnty. Sheriff’s Dep’t, 150 F.3d 579, 582 (6th Cir. 1998).
- 57Russo v. City of Bridgeport, 479 F.3d 196, 199-200 (2d Cir. 2007).
- 58Sosa, 57 F.4th at 1318.
- 60Id. at 1320 (emphasis added).
- 61Garcia v. Cnty. of Riverside, 817 F.3d 635, 640 (9th Cir. 2016).
- 62See discussion supra Part III.
- 63Sosa, 57 F.4th at 1313-14.
- 64U.S. Const. amends. V, XIV, § 1.
- 65U.S. Const. amend. IV.