How many times can the same police department arrest you on a warrant that bears your name but is plainly not intended for you?

What’s in a name?  If it’s in a warrant and you’re in the Eleventh Circuit, enough to arrest and jail you for three days even if you don’t match the description of the wanted person, the warrant was issued 26 years earlier from another state, and the same law enforcement agency mistakenly arrested you on the same warrant four years earlier.  Sometimes a court issues a decision that, while a plausible consequence of prior holdings, is so wrong-headed that it requires a re-examination of the false doctrinal steps that led to it.  The en banc Eleventh Circuit’s recent decision in Sosa v. Martin County (Fl.) Sheriff,¹ is an example.

In 2014, Martin County deputies arrested Florida resident David Sosa on a decades-old Texas warrant for another man named David Sosa.  The Florida David Sosa tried to convince the officers that he was not the person named in the warrant.  As the majority opinion notes, he “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.”²  After going through with the arrest, the deputies checked Sosa’s fingerprints and released him.  

Another deputy stopped Florida David Sosa again in 2018.  Because of the prior arrest, the Martin County Sheriff’s office now had a record of a Florida David Sosa who was a different person (with different fingerprints)—not the David Sosa named in the by-then 26-year-old Texas warrant.  Again, Sosa protested that his identifying information (other than his name) did not match the warrant.  To no avail.  The deputies arrested and held him, this time for three days, before again checking his fingerprints and confirming that they had the wrong man.

Sosa sued the Sheriff under 42 U.S.C. § 1983 claiming violations of his Fourth Amendment right against unreasonable arrest and his Due Process right not to be detained longer than necessary after it should have been clear that he was entitled to release.  In addition to seeking damages—and this is important—he sought an injunction to prevent the Sheriff’s office from arresting him yet again based on the Texas namesake warrant.  The district court dismissed the complaint, and the Eleventh Circuit panel affirmed.  The full Court voted to hear the case en banc but limited the briefing to the “over-detention” claim.  

The en banc majority ruled that the Supreme Court’s decision in Baker v. McCollan,³ which had rejected a § 1983 claim for three days of over-detention, “controls this case.”  Thus, the legal rule emerging from the Eleventh Circuit’s review is that a person who is arrested on a warrant issued for a different person with the same name and held for no more than three days has no federal constitutional claim, period, even if the description in the warrant doesn’t fit the person and even if the arresting police agency has information in its records that it made the same mistake before.  Three judges joined in a concurrence based on qualified immunity, concluding that the law wasn’t sufficiently clear to put the deputies on notice that what they had done was unconstitutional.  The concurrence did not address Sosa’s request for injunctive relief against another erroneous arrest, which did not implicate qualified immunity.  The panel majority had disposed of County liability on the ground that the complaint had failed to allege that the County had a policy or practice “of rearresting the wrong person on a warrant because of mistaken identity based on the arrestee's name,”⁴  without directly confronting whether the analysis should be the same for an injunction against a rearrest as for damages.  

In a concurring opinion, Judge Newsom took the opportunity to expatiate on his “grave reservations about the role that ‘substantive due process’ has come to play in constitutional decision-making.”⁵  Although conceding that what happened to Sosa was “awful,” Judge Newsom thought the courts were powerless to do anything about it, even to prevent it from happening again, because he was focused on the absence of text-based constitutional standards for what the parties were calling an “over-detention” claim that assumed the validity of the arrest. 

Only Judge Rosenbaum, in a dissent, was willing to point to the reason why there should have been no need or reason to invoke substantive due process as a kind of adjunct limitation on arrest and detention.  (Not that there is anything wrong with that.  The Supreme Court recognized in United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50 (1993), that compliance with Fourth Amendment standards did not mean that a federal seizure satisfies the Fifth Amendment Due Process clause.)  She urged that the reasonableness of holding someone on a warrant issued for someone else should be “rehomed” as a Fourth Amendment right.  She noted that modern technology was unavailable in 1979 when the Supreme Court decided Baker made it unreasonable in 2018 for the deputies not to have taken steps to determine that they had the wrong man without leaving him in a jail cell for three days.  Her opinion accepted that there might be a watered-down probable cause standard for warrants that come up in a traffic stop, which might be sufficient to arrest on a warrant for someone else with the same name, but “if we’re being candid, that type of roadside probable cause—where the arrested person matches only the wanted person’s name, sex, and race—isn’t really much of a basis for a reasonable belief that the arrested person is actually the wanted individual.”⁶ 

Sosa’s complaint alleged that there were over 800 men named David Sosa listed on LinkedIn and thousands living in or visiting the United States—all of whom are subject to arrest and detention based on the Texas warrant, even if their “date of birth, height, weight, social security number, and tattoo information” do not match the warrant.  Rehoming the analysis in the Fourth Amendment raises the question whether there is probable cause to make an arrest based on a name, when there are many factors—not only the discrepant date of birth, height, weight, tattoos and social security number, but also the location (Florida versus Texas) and the lapse of time (26 years)—that make it unreasonable to base an arrest on a warrant turned up in a computer query.  Add the fact that the same police agency should have had in its computer system the information about the prior false arrest and this should have been an easy case to resolve on a simple Fourth Amendment analysis: there was no probable cause to arrest.  

Judge Rosenbaum’s panel opinion held that “keeping in mind that … [the deputy] compared the warrant information to Sosa's information on the side of the road during a traffic stop, we must conclude that his error in arresting Sosa on the wanted Sosa's warrant was not unreasonable by Fourth Amendment standards.”⁷  But that ruling was constrained by Circuit precedent.⁸  The full Court would not have been, but it had decided not to hear the Fourth Amendment argument en banc. 

The Supreme Court’s current qualified immunity doctrine is likely to shield officers from damages liability for arresting someone on a warrant bearing the arrestee’s name, because of the absence of a prior decision declaring the conduct unconstitutional with sufficiently similar facts.  But holding that there is no Fourth Amendment violation at all, and that having the same name is enough for an arrest, prevents courts from ever laying out clear standards to help officers decide whether the similarities and differences between the arrestee and the description of the subject of the warrant establish probable cause.  

We can’t answer the question just by looking at whether a name was enough to make an arrest in 1789, because the Framers weren’t dealing with massive databases that stored warrant information for decades and compiled it from sources across the country.  The challenge these databases present is that identification by name alone does not mean the computer record is about the same person, and especially when other information in the record doesn’t match.  

The Supreme Court faced a similar problem when a credit reporting agency maintained a database to alert businesses that a customer might be on the “OFAC” (Office of Foreign Assets Control) list.  “TransUnion did not compare any data other than first and last names. Unsurprisingly, TransUnion's Name Screen product generated many false positives. Thousands of law-abiding Americans happen to share a first and last name with one of the terrorists, drug traffickers, or serious criminals on OFAC's list of specially designated nationals.”⁹  One of those misidentified customers sued after being humiliated at a car dealership that refused to sell a vehicle to him because of the false alert.  Nobody thought that a matching name alone was sufficient to absolve the credit reporting agency of responsibility to maintain an accurate database, yet the Eleventh Circuit seems to be saying that it would be perfectly lawful to arrest and jail someone, not only with no further confirmation of identity, but with ample basis in the warrant itself to clear the detained person.  Likewise, the Ninth Circuit described the problem with name identification in the federal government’s “no fly” lists: “Tens of thousands of travelers have been misidentified because of misspellings and transcription errors in the nomination process, and because of computer algorithms that imperfectly match travelers against the names on the list. TSA maintains a list of approximately 30,000 individuals who are commonly confused with those on the No-Fly and Selectee Lists. One major air carrier reported that it encountered 9,000 erroneous terrorist watchlist matches every day during April 2008.”¹⁰

While historical practice alone won’t tell us how to handle the modern database problem, the principle that warrants must properly identify the subject of the search or seizure can.  The Fourth Amendment includes: “[N]o 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.”  In the context of a massive, nationwide and seemingly perpetual database, a name is not a sufficiently particular description of the person to be seized.  A police department in Florida could not execute a search based on a street address (without specifying the city and state) in a Texas warrant that happened to match a location in Florida.  And a warrant that named an address but gave an inconsistent description would not allow a search.  

In Maryland v. Garrison,¹¹  the police searched the wrong apartment in reliance on a warrant that on its face authorized a search of the entire floor.  The Supreme Court’s decision does not suggest that the police would have been authorized to rely on a warrant, even one issued recently rather than 26 years earlier, despite substantial differences between the warrant’s description of the place to be searched and the actual place.  And Garrison required the police to terminate the search immediately after discovering the same kind of discrepancy that was already evident from the face of the warrant in Sosa, because the description of the person to be seized did not match Florida David Sosa.  If the Eleventh Circuit had applied a similar particularity standard, the deputies could not have made an arrest on the non-matching warrant at all, much less held their prisoner for three days.  And while the Supreme Court has said in Herring v. United States,¹²  that the exclusionary rule should not apply to arrests made as a result of negligence, even that does not mean that unreasonably matching a warrant to an arrestee with the same name should be treated as satisfying the Fourth Amendment.  Police officers will make mistakes, including when they are matching information to an arrestee, but “[t]he limit is that ‘the mistakes must be those of reasonable men.’”_¹³   

There are a lot of doctrinal missteps along the way to the Eleventh Circuit’s decision, including the ones allowing police to extend every routine traffic stop to run a database check, which itself becomes an incentive to make pretextual traffic stops.  The Eleventh Circuit seems unduly dismissive of the consequences of three days of detention in a county jail. We should at least be able to agree that rearresting Florida David Sosa on a 26-year-old Texas warrant four years after the same police agency had made the same mistake is not reasonable, entitling him to protection against rearrest even if not damages.  

¹ ___ F.4th ___, 2023 WL 328389 (11th Cir. Jan. 20, 2023) (en banc).
²  2023 WL 328389 at *1.
³ 443 U.S. 137 (1979).  The police error Baker was quite different.  The plaintiff’s brother had stolen his name and other identifying information, and so the warrant for a crime committed by the brother was issued in the plaintiff’s name.  The plaintiff matched the warrant description, because his brother had used the plaintiff’s identifying information, and the warrant was both recent and locally issued.  The police caught their mistake only after they had a photograph of the wanted person (the brother).  And, as the Sosa dissent notes, technology at the time did not allow the police to verify identity as rapidly they could forty years later.
⁴ Sosa v. Martin County (Fl.) Sheriff, 13 F.4th 1254, 1278 (11th Cir. 2021).
⁵ 2023 WL 328389 at *6 (Newsom, J., concurring).
⁶ 2023 WL 328389 at *29 (Rosenbaum, J., dissenting).
⁷ 13 F.4th at 1266.
⁸ See Rodriguez v. Farrell, 280 F.3d 1341, 1345 (11th Cir. 2002).
⁹ TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2201 (2021).
¹⁰ Ibrahim v. DHS, 669 F.3d 983, 990 (9th Cir. 2012).
¹¹ 480 U.S. 79 (1987).
¹² 555 U.S. 135 (2009).
¹³ Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).