David Sosa v. Martin County, Florida

57 F.4th 1297

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 20, 2023
• Docket: 20-12781
• Status: Published

Opinion

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[PUBLISH] 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 2 of 89

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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 judg- ment, 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 de- tained for three days based on mistaken identity for a valid arrest warrant has stated a claim for relief under the Fourteenth Amend- ment for his over-detention. Deputy sheriffs arrested David Sosa based on a warrant for another man of the same name, detained him, and released him when his identity was verified three days USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 3 of 89

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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 fail- ure 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 com- plaint 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 dis- covered a warrant issued 22 years earlier in Harris County, Texas for another man named David Sosa. Although Sosa protested dur- ing the traffic stop that the wanted man’s date of birth, height, weight, social security number, and tattoo information did not match his own identifiers, deputies arrested, detained, and USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 4 of 89

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fingerprinted Sosa. After three hours, the sheriff’s department con- firmed his identity and released him. Four years later, on Friday, April 20, 2018, another deputy sheriff checked Sosa’s driver’s license during a traffic stop and found the same Texas warrant. Again, Sosa objected that the iden- tifiers listed on the warrant did not describe him. Sosa also told the deputies about the misidentification in 2014. Deputies arrested Sosa and brought him to the Martin County jail, where, despite Sosa’s continued insistence to deputies and jailers that he was not the wanted man, his detention lasted three days over a weekend. On Monday, April 23, 2018, Sosa was fingerprinted, and the sher- iff’s department released him after the fingerprints confirmed that the warrant was for a different man. Sosa filed a civil-rights action, see 42 U.S.C. § 1983, alleging violations of his rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment against Martin County; the Martin County Sheriff in his official capacity; Deputy Killough, the officer who arrested Sosa in 2018; Deputy Sanchez, an officer to whom Sosa protested his innocence during his three- day detention; and other unnamed deputies. Sosa alleged that the defendants “searched and detained and arrested him without prob- able cause or reasonable suspicion,” that they took “an [u]nconsti- tutionally lengthy time” “to check [his] identity,” and that the Sher- iff and County “did not have adequate written policies, or train or supervise the deputies properly” to prevent Sosa’s arrest. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 5 of 89

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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 Four- teenth Amendments. And it held that because the deputies were not liable, there was no basis for liability against the Sheriff and County. A panel of this Court affirmed in part and reversed in part. Sosa v. Martin Cnty., 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 “substan- tive 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 fore- closed 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 6 of 89

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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 Lin- nie McCollan. See id. at 141. When Linnie ran a red light, the police checked his driver’s license, discovered the warrant, and arrested him, despite his protests of mistaken identity. Id. On Saturday, De- cember 30, 1972, the police defendants took custody of Linnie “un- til [Tuesday,] January 2, 1973, when officials compared his appear- ance against a file photograph of the wanted man and, recognizing their error, released him.” Id. Linnie later filed a civil-rights action alleging a violation of the Fourteenth Amendment. Id. After the Fifth Circuit reversed a directed verdict against Linnie on the the- ory that the police must “mak[e] sure that the person arrested and detained is actually the person sought under the warrant,” McCollan v. Tate, 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: USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 7 of 89

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Absent an attack on the validity of the warrant under which he was arrested, respondent’s complaint is simply that despite his protests of mistaken identity, he was de- tained . . . from December 30 . . . until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Con- stitution.

Id. at 143–44. The Baker Court rejected Linnie’s over-detention claim based on its consideration of only two criteria: the validity of Lin- nie’s arrest warrant and the length of his detention. Id. It recog- nized that Linnie was “deprived of his liberty for a period of days,” which spanned three days from Saturday to Tuesday. And it recog- nized that his detention was “pursuant to a warrant conforming . . . to the requirements of the Fourth Amendment.” Id. at 144. It con- cluded based on these two facts that Linnie had no cognizable Fourteenth Amendment claim for over-detention. As the Court explained, any other conclusion would read too much into the constitutional guarantee of due process. The Constitution does not guarantee that innocent people will never be arrested, so a detainee’s claims of innocence are “largely irrele- vant.” Id. at 145. Nor does the Constitution guarantee that officers will “investigate independently every claim of innocence . . . based on mistaken identity.” Id. at 146. When officers do investigate, the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 8 of 89

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Constitution does not guarantee an “error-free investigation.” Id. And regardless of whether errors are made, the Fourteenth Amendment is not a constitutional bulwark against a few-days de- tention, “[g]iven the requirements that arrest be made only on probable cause [under the Fourth Amendment] and that one de- tained be accorded a speedy trial [under the Sixth Amendment.]” Id. at 145. Even though the Due Process Clause affords protections to people deprived of their liberty, those protections do not extend to detainees in Linnie’s particular situation. Under Baker, no violation of due process occurs if a de- tainee’s arrest warrant is valid and his detention lasts an amount of time no more than the three days that Linnie was detained. Id. at 144. And both conditions are met here. Like Linnie, Sosa was ar- rested pursuant to a valid warrant supported by probable cause un- der the Fourth Amendment. See id. at 143. And like Linnie, who was held from Saturday to Tuesday, see 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 pro- cedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a cer- tain amount of time deprive the accused of ‘liberty without due USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 9 of 89

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process of law.’” Id. at 145 (alteration adopted). But the Court did not decide that issue. Neither do we. Like the Baker Court, we limit our inquiry to the material facts of the case before us. And as the Baker Court was “quite certain that [Linnie’s] detention of three days over a New Year’s weekend does not and could not amount to such a dep- rivation,” id., we are sure that Sosa’s commensurate three-day de- tention did not violate the Fourteenth Amendment. We need not go any further. That Baker did not draw a bright line between lawful and unlawful detentions does not mean that it instituted a fact-inten- sive, totality-of-the-circumstances analysis for over-detention claims, as our dissenting colleague proposes. See Dissenting Op. at 34–40. Of course, there are some factual differences between Baker and this case. For example, Linnie was detained over a holiday, 443 U.S. at 141, and Linnie’s detention began in 1972, when technology was less advanced and identification may have taken longer, id. at 141. But the Court did not treat these facts as material. See id. at 143–44. Nor did the Court rely on the unstated “limiting principle” of reasonableness that our dissenting colleague has discerned from Baker. Dissenting Op. at 27. If we treated every factual distinction with a precedential de- cision as necessarily material, the doctrine of precedent would lose most of its function. Glanville L. Williams, Learning the Law 93 (A.T.H. Smith ed., 14th ed. 2010) (“We know that in the flux of life all the facts of a case will never recur; but the legally material facts USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 10 of 89

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may recur and it is with these that the doctrine [of precedent] is concerned.”) Judges would be freed from the requirement that they apply the law, so long as they could unearth any factual dis- crepancy between binding caselaw and the case they wanted to de- cide a different way. Bryan A. Garner, et al., The Law of Judicial Precedent § 7, at 92 (2016) (“For one decision to be precedent for another, the facts in the two cases need not be identical. But they must be substantially similar, without material difference.”) So, where the two conditions identified by the Supreme Court in Baker are met, we give no weight to facts beyond those material to the two conditions. And even if Baker had introduced a fact-intensive, totality- of-the-circumstances analysis for over-detention claims, the cir- cumstances of Sosa’s detention would still convince us that he has no such claim. None of the facts differentiating Baker from this case are material. For instance, Linnie was held over the New Year’s holiday, id. at 141, and Sosa was held over a non-holiday weekend. But detainees have the same due-process rights on holidays as they do every other day of the year, so the incidence of a holiday does not change our constitutional analysis. Nor is the lower technolog- ical standard for police investigations in 1972, in contrast to 2018, a material distinction. It was permissible for the police to hold Linnie for three days, not because computers were unavailable back then, but because “a detention of three days” is objectively shorter than the duration that might give rise to an unlawful deprivation of lib- erty without due process. 443 U.S. at 143–45. Indeed, the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 11 of 89

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identification in Baker required only a low-technology photograph comparison, so Baker did not depend, even implicitly, on a techno- logical standard. And it does not matter that the warrant in this case was comparatively older than the Baker warrant or that it listed a comparatively more common name. “Absent an attack on the validity of the warrant under which [a detainee] was arrested,” id. at 144 (emphasis added), we make no inquiry into the warrant. After distinctions immaterial to the Baker Court’s holding are set aside, the facts of Baker and this case are strikingly similar. So, our holding is the same too. Sosa and the dissent argue that our precedent in Cannon supports Sosa’s over-detention claim. See Dissenting Op. at 13–16. In Cannon, officers questioned a traveler named Mary Parrott at a highway rest stop in Alabama, learned that a Mary Parrott was wanted in Kentucky for theft, arrested the traveler, filled out an arrest report with the information of the wanted Mary Parrott in- stead of the traveler, and used that arrest report purportedly to sup- port detaining the Alabama traveler for seven days and sending her to Kentucky, despite her accurate insistence that she had been mis- identified. Id. at 1560–61. We held that a jury could have found that the arresting officer had violated the woman’s constitutional rights. Id. at 1565. Specifically, the officer erred by keeping her detained “after it was or should have been known that [she] was entitled to release.” Id. at 1563. Sosa and the dissent contend that, under Can- non, he was entitled to release because the deputies who detained USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 12 of 89

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him knew he may have been misidentified based on his protests and did not verify his identity. Sosa and the dissent misread Cannon: we could decide Can- non as we did because the two conditions required for Baker’s holding were not met. First, it is not evident that the Cannon de- tainee was arrested on a valid warrant supported by probable cause. The officer who wrote the report that the county judge used as the basis for the arrest warrant did not record the information for the woman the officer sought to arrest. Instead, he copied from a computer database the personal information of the woman wanted in Kentucky—plus, a social security number that belonged to a third person, an unrelated fugitive also in the database. Id. at 1560–61; see Wilkerson v. Seymour, 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 sus- pect has committed” an offense) (internal quotation marks omit- ted). 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, 50 F.4th at 95 (stating that a detainee’s right to be free from process-based 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 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 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 13 of 89

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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 re- maining issues to the panel. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 14 of 89 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 15 of 89

20-12781 JORDAN, J., Concurring 1

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 ex- plained 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 no- tice 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 . . . USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 16 of 89

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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 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 of- ficers adequate notice that they were violating Mr. Sosa’s substan- tive due process rights by not releasing him—at least not “beyond debate” as the Supreme Court’s decisions require. See Rivas-Ville- gas, 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 ju- risprudence is far removed from the principles existing in the early 1870s, when Congress enacted what is now 42 U.S.C. § 1983. See, e.g., Zigler v. Abassi, 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 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 17 of 89

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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 ordi- nary 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-law immunities ex- isting 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 18 of 89 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 19 of 89

20-12781 NEWSOM, J., Concurring 1

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 any- thing truly wrong, he was arrested.” Franz Kafka, The Trial 3 (Breon Mitchell, trans., 1998). Worse than that, following a routine traffic stop, Sosa was arrested and detained by his hometown sher- iff’s deputies for the second time on the same decades-old drug- dealing warrant issued for another David Sosa—one who lived hundreds of miles away in a different state, was a different age, height, and weight, and had conspicuously different tattoo mark- ings. Just as he had the first go round, our Sosa naturally (and re- peatedly) told the arresting officers that they had the wrong guy— but to no avail. The deputies detained Sosa for three days over a weekend before they eventually got around to fingerprinting him, recognized their mistake, and released him. What happened to Sosa was, in a word, awful. Without pre- judging the issue, I’d be willing to assume that the officers’ con- duct—jailing Sosa for three full days on a warrant issued for some- one else, despite his repeated pleas of innocence and without both- ering to do much of anything to verify his identity—might even have been tortious. The question before the Court today, though, is whether their conduct violated the United States Constitution— in particular, whether it infringed Sosa’s so-called “substantive due process” rights. The majority quite correctly concludes that it didn’t. As its opinion straightforwardly explains, the Supreme USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 20 of 89

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Court’s decision in Baker v. McCollan, 443 U.S. 137 (1979), which rejected a due-process challenge to a materially identical “overde- tention,” is essentially on point, and our later decision in Cannon 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 opin- ion in full. I write separately to reiterate (once again) my grave reservations about the role that “substantive due process” has come to play in constitutional decisionmaking. I Substantive due process is a slippery, shape-shifting doc- trine. It can take on any of a number of different forms. In what is, I suppose, its most conventional instantiation, it’s the method by which the Supreme Court has gradually “incorporated” most of the substantive protections of the Bill of Rights against the states through the Fourteenth Amendment’s Due Process Clause. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 759–80 (2010) (holding that the Due Process Clause incorporates the Second Amendment right to keep and bear arms). Some observers—in- cluding me—have criticized the Court’s reliance on substantive due process even for that limited purpose and have urged it to re- focus its attention on the long-lost Privileges or Immunities Clause. See id. at 805–50 (Thomas, J., concurring in part and concurring in the judgment); Kevin Newsom, Setting Incorporationism Straight: USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 21 of 89

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A Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643, 658–87 (2000). More controversially, substantive due process has been de- ployed as a means of protecting certain unenumerated interests— like, say, “the sanctity of the family”—that are deemed to be “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977), or, even more ob- scurely, “implicit in the concept of ordered liberty,” Palko v. Con- necticut, 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 an- other, just don’t address. “Surely,” the thinking goes, “the Consti- tution doesn’t permit ______!” A court is confronted with some injustice—say, for instance, an individual’s three-day detention in the face of his repeated protestations of innocence and his jailers’ refusal to make any real effort to verify basic facts—and is told that the Constitution simply must provide a remedy. And because the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 22 of 89

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court can’t find another avenue by which to right the alleged wrong, it defaults to substantive due process. II I’m a confessed (and longtime) skeptic of substantive due process—in all its various forms. See, e.g., id. at 1126–29; Hillcrest Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1304–07 (11th Cir. 2019) (Newsom, J., concurring in the judgment); see also Newsom, In- corporationism, at 733–42. Why? What’s so bad about it? Well, a lot. First, and most obviously—and most seriously from my per- spective—substantive due process has no footing in constitutional text. Quite the contrary, in fact, it makes a hash of the provision from which it purportedly emanates. The Fourteenth Amend- ment’s Due Process Clause states, simply, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Two notes about that lan- guage: One, as Dean Ely observed, “there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’” John Hart Ely, Democracy and Distrust 18 (1980). And two, as Professor Tribe has explained, “the expressly conditional, purely procedural cast of the Due Process Clause . . . leaves no doubt that life, liberty, and property may all be extinguished, providing only that the gov- ernment do so with ‘due process of law.’” Laurence H. Tribe, 1 American Constitutional Law 1320 (3d ed. 2000). In light of the linguistic misfit, Ely famously dubbed substantive due process a “contradiction in terms—sort of like ‘green pastel redness.’” Ely, USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 23 of 89

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Democracy and Distrust, at 18. If the Constitution’s text matters at all, Ely’s quip captures what seems to me to be an intractable problem: The Due Process Clause’s plain language renders it pos- itively incapable of absolutely protecting substantive rights. Second, “there’s the matter of history.” Hillcrest, 915 F.3d at 1305 (Newsom, J., concurring in the judgment). “The best indi- cations,” as I’ve explained by reference to verifiable historical sources, “are that those who framed the Fourteenth Amendment’s Due Process Clause envisioned it as a guarantee (as its phrasing and moniker indicate) of fair process, not a font of substantive rights.” Id.; accord, e.g., Newsom, Incorporationism, at 739–40. I won’t belabor the point here, except to say that people smarter and more steeped in the history than I am share my assessment. See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 173 (1998) (making the same point, by reference to many of the same sources). Third, substantive due process has, let’s just say, a checkered past. “At least in the Supreme Court, substantive-due-process doc- trine traces its roots to the fateful—and repugnant—decision” in Dred Scott v. Sandford, 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 judg- ment); see also Tribe, American Constitutional Law, at 1334 (de- scribing Dred Scott, which “embraced a substantive reading of the due process requirement,” as “more nightmare than precedent in USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 24 of 89

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1866”). And things didn’t get much better from there, as substan- tive due process provided the quicksand on which the Court later built the oft-criticized—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 substan- tive 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 diffi- culties, substantive due process’s freewheelingness (witness the dis- sent’s “six facts,” see Dissenting Op. at 33–40) poses a serious prac- tical problem. As Justice Stevens explained for a unanimous Su- preme Court in Collins v. City of Harker Heights, the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” 503 U.S. 115, 125 (1992). Accordingly, he em- phasized, “[t]he doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever we are asked to break new ground” wielding a substantive-due-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 viola- tion—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 judg- ment). Even more grimly, Professor Tribe has warned that USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 25 of 89

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“[t]here is a very real threat that that the doctrinal shakiness of sub- stantive 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 Con- stitutional 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 princi- pled—vehicles for protecting individual rights against state inter- ference. See Newsom, Incorporationism, at 658–87. Short of that, though, what can be done to avert the harm that the doctrine threatens? The Supreme Court has emphasized one important means of cabining substantive due process—one that, as the dissent seems to recognize, has direct application here. See Dissenting Op. at 48 n.18. Reviewing courts, it has said, should be particularly re- luctant to indulge substantive-due-process arguments when an ac- tual constitutional provision addresses the sort of injury that a com- plainant alleges. So, for instance, the Court has held that “[w]here a particular Amendment ‘provides an explicit textual source of con- stitutional protection’ against a particular sort of government be- havior, ‘that Amendment, not the more generalized notion of “sub- stantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality op.) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 26 of 89

8 NEWSOM, J., Concurring 20-12781

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 “unreason- able . . . seizures” and, more specifically, requires that warrants be issued only on a showing of “probable cause.” U.S. Const. amend. IV. And the Sixth Amendment guarantees every “accused” the “right to a speedy . . . trial.” Id. amend. VI. It’s even possible that a complaint like Sosa’s could, in extreme circumstances, implicate the Eighth Amendment, which prohibits “excessive bail.” Id. amend. VIII. Now, to be sure, as matters currently stand, none of those express textual guarantees provides Sosa a ready remedy. As far as the Fourth Amendment is concerned, Sosa’s arrest pursuant to a valid warrant would appear to end the inquiry. The Supreme Court has held that those arrested without a warrant must be given a probable-cause hearing before a neutral magistrate, usually within 48 hours, see County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), but no similar temporal protection applies to those, USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 27 of 89

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like Sosa, who were initially arrested pursuant to a magistrate-is- sued warrant. The Sixth Amendment would have prohibited Sosa’s “indefinite[]” detention, see Baker, 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 per- haps in the general ballpark, likewise wouldn’t have offered Sosa any relief. Although the Supreme Court seems to have been will- ing to assume that states “are required by the United States Consti- tution to release an accused criminal defendant on bail” in appro- priate circumstances, Baker, 443 U.S. at 144 n.3, that right almost certainly wouldn’t have attached unless and until Sosa was for- mally charged, cf. Carlson v. Landon, 342 U.S. 524, 545 (1952) (“The Eighth Amendment has not prevented Congress from defin- ing the classes of cases in which bail shall be allowed in this coun- try.”); 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 re- lief, it does not follow that “substantive due process” must do so. To the contrary, the fact that the Constitution expressly addresses specific, discrete issues that arise in criminal investigations and

1 Cf. also Schultz v. Alabama, 42 F.4th 1298, 1323–25 (11th Cir. 2022) (uphold- ing the constitutionality of a money-bail regime against a constitutional chal- lenge and collecting additional precedents doing likewise). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 28 of 89

10 NEWSOM, J., Concurring 20-12781

prosecutions is a sufficient reason not to contort the open-textured Due Process Clause to force it to reach other adjacent (but un- addressed) matters. In explaining that substantive due process has no role to play when a party’s claim is “covered” by a specific con- stitutional provision, Lanier, 520 U.S. at 272 n.7, the Supreme Court can’t have meant that the doctrine takes a back seat only when that provision provides a sure-fire winner; that understand- ing would render the Court’s prudent limitation on substantive- due-process decisionmaking wholly superfluous. Rather, as I’ve explained elsewhere, “[i]f (for whatever reason) the claim can’t pro- ceed in its natural textual and doctrinal ‘home,’ then, well, it can’t proceed”—the claimant “can’t just repackage it in substantive-due- process garb and attempt to relitigate it.” Hillcrest, 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 “or- dered liberty” to identify and protect some favored unenumerated right. Here, rather, we’re being asked to use substantive due pro- cess as a constitutional gap-filler—to hold, in essence, that because what happened to David Sosa was unfair, it must violate the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 29 of 89

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Constitution. That, in short, is “not how constitutional law works.” Id. at 1304. 2 IV I’ll end where I began: What happened to David Sosa was awful. But as I’ve said before, “[n]ot everything that s[tink]s vio- lates the Constitution.” Hillcrest, 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 une- lected, 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)).

2 From everything I’ve said here, I suppose this goes without saying, but I’ll say it anyway: I think that Cannon v. Macon County, 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 30 of 89 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 31 of 89

20-12781 ROSENBAUM, J., Dissenting 1

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 con- fined to a jail cell. Sosa remained in jail for roughly 72 hours be- cause, despite good reason to believe they had arrested the wrong man, Martin County Sheriff’s officials refused to confirm Sosa’s identity—a process that requires an officer to perform less than a minute of work. Faced with this sequence of events, my colleagues in the Ma- jority wring their hands and say too bad for Sosa but insist the Con- stitution allows it. Even worse, three of my colleagues claim that the Constitution permits officials to hold people in Sosa’s position without ever verifying their identity. See Newsom Op. at 8–11. According to these judges, no constitutional violation occurs until the detained person’s speedy-trial rights are violated—that is, about a year or more later. See id. at 8–9 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 1 A year in jail! And for no reason other than

1 See also United States v. Knight, 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). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 32 of 89

2 ROSENBAUM, J., Dissenting 20-12781

that law-enforcement officials refused to engage in less than a mi- nute 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 Constitution does not have an aircraft-carrier-sized loophole in its guarantee that no per- son shall be deprived of their liberty without due process of law. The Majority Opinion unceremoniously casts our precedent aside. But when an officer suspects he has detained the wrong person and has the means to quickly and easily verify the prisoner’s identity, the Constitution does not allow the officer to sit on his hands while the detainee spends days, weeks, or months in jail. Indeed, over the last thirty years, we have repeatedly recog- nized that the Constitution protects the “right to be free from con- tinued detention after it was or should have been known that the detainee was entitled to release.” Cannon v. Macon Cnty., 1 F.3d 1558, 1563 (11th Cir. 1993). 2 And under this principle, an officer’s

2 See, e.g., Ortega v. Christian, 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 follow- ing a valid arrest may present a viable section 1983 claim where the detainee protests the detention on the basis of misidentification’”) (quoting Ortega, 85 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 33 of 89

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“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-co- caine-trafficker David Sosa from Texas (the “wanted Sosa”). For one, the warrant was more than a quarter-of-a-century old, from halfway across the country, and Sosa—who worked in research and development of airplane engines for Pratt and Whitney and its affiliates—matched almost none of the descriptors for the wanted Sosa (like height, weight, or tattoos). For another, Sosa repeatedly told his jailers that he did not match the identifiers for the wanted Sosa and that the same sheriff’s office had wrongly arrested him on the very same warrant just a few years earlier. And third, Sosa is one of thousands of individuals who share the name “David Sosa” and lived in or visited the United States when Sosa’s 2018 arrest and detention occurred. In other words, the deputies had a better shot at winning money in Florida Lottery games than they did of having

F.3d at 1527); May v. City of Nahunta, 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 contin- ued detention after the defendant knew or should have known that the de- tained was entitled to release”). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 34 of 89

4 ROSENBAUM, J., Dissenting 20-12781

the wanted Sosa in custody. 3 Pair those odds with the descriptive differences between Sosa and the wanted Sosa and account for Sosa’s repeated statements that he had wrongly been arrested on the same warrant just a few years earlier, and it’s almost like the jail deputies knowingly bought losing lottery tickets. These facts should have set off alarm bells in the Martin County jail officials’ heads that they needed to make sure they had the right David Sosa. But instead, the jailers did nothing for three nights and days.

Sosa’s jailers could not ignore these flashing neon signs that they likely had the wrong Sosa and remain deliberately indifferent to Sosa’s identity for three nights and days. Rather, the Constitu- tion required them to take reasonable action—like the simple and quick computerized process of running Sosa’s fingerprints against the fingerprints of the wanted Sosa—to confirm whether Sosa was the wanted Sosa. Our precedent establishes that when the officers failed to do even that, they violated Sosa’s constitutional rights. See Cannon, 1 F.3d at 1563.

3 See, e.g., Florida Lottery Game #5048 – Florida 300X THE CASH, with a 1- in-500 chance of winning $1,000.00; Florida Lottery Game #1485 – BILLION DOLLAR GOLD RUSH SUPREME, with a 1-in-821 chance of winning $1,000; Florida Lottery Game #5029 – 500X THE CASH, with a 1-in-1,000 chance of winning $1,000.00; Florida Lottery Game # 1454 - $500 MADNESS, with a 1- in-136 chance of winning $500.00. Scratch-offs, FLORIDA LOTTERY, https://www.flalottery.com/scratch-offs (last visited Jan. 19, 2023). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 35 of 89

20-12781 ROSENBAUM, J., Dissenting 5

The Majority Opinion relies on Baker v. McCollan to excuse its failure to apply Cannon (and its progeny) to recognize the vio- lation of Sosa’s constitutional rights. Maj. Op. at 8 (citing 443 U.S. 137, 144 (1979)). But Baker does not justify the Majority’s result. To the contrary, Baker supports the opposite answer—that Sosa sufficiently alleged that Sanchez and the other jail officers who did nothing for three nights and days to confirm Sosa’s identity while Sosa sat in jail violated Sosa’s constitutional rights. So I would con- clude that Sosa has sufficiently alleged a claim, and Sanchez and the other jail officers are not entitled to qualified immunity at this time. I therefore respectfully dissent. I organize my dissent in three sections. Section I sets forth the relevant background here. In Section II, I show why Cannon and Baker require the conclusion that Sanchez and the other jail deputies are not entitled to qualified immunity, and their motion to dismiss should have been denied. And Section III explains why, if we were writing on a clean slate, the Fourth Amendment more appropriately serves as the source of the right to be free from con- tinued detention when it was known or should have been known that the person was entitled to release. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 36 of 89

6 ROSENBAUM, J., Dissenting 20-12781

I. Background Sosa has lived in Martin County, Florida, since 2014.4 Things did not start well for him there. In November of that year, a Martin County Sheriff’s deputy pulled Sosa over for a routine traf- fic stop. During the encounter, the deputy ran Sosa’s name through the Office’s computer system.

The computer told the deputy of an outstanding 1992 war- rant issued out of Harris County, Texas, for a “David Sosa” in con- nection with the wanted Sosa’s conviction for selling crack cocaine. The warrant described the wanted Sosa, including his date of birth, height, weight, tattoo information (he had at least one), and other details. When the deputy went to arrest Sosa on the warrant, Sosa pointed out that his own date of birth, height, and weight did not match the information for the wanted Sosa and that, unlike the wanted Sosa, he had no tattoos. The deputies arrested Sosa, any- way, and took him to the station.

While detained at the station, Sosa told two Martin County jailers that he was not the wanted Sosa. And he explained that the wanted Sosa’s identifiers differed from his own. Then a deputy fin- gerprinted Sosa and determined that he was not the wanted Sosa.

4 Because this case comes to us on a motion to dismiss, we accept all well- pleaded facts in the complaint as true. Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 37 of 89

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So roughly three hours after Sosa was initially detained, he was re- leased.

Three-and-a-half years passed. Then, the same thing hap- pened again—only this time, Sosa was not lucky enough to be re- leased within three hours. On April 20, 2018, a different deputy of the Martin County Sheriff’s Department, Deputy Killough, pulled Sosa over for a traffic stop. When Deputy Killough ran Sosa’s name, he discovered the same 1992 open warrant. Sosa explained that he was not the wanted Sosa and told Deputy Killough he had previously been incorrectly arrested on that warrant and released when deputies realized the error. Sosa again noted that he and the wanted Sosa did not share the same birthdate, Social Security num- ber, tattooed status, or other identifying information. But once again, his explanation did not work; Deputy Killough arrested Sosa and impounded his truck anyway.

When Deputy Killough took Sosa to the Martin County jail, Sosa “repeatedly explained to many Martin County employees . . . that his date of birth and other identifying information [were] dif- ferent than the information on the warrant for the wanted . . . Sosa.” Among those Martin County employees were Deputy Sanchez and the other Martin County deputies in the booking area. They wrote down Sosa’s information and told him they would fol- low up on the matter.

But Sosa spent the remainder of April 20 in jail. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 38 of 89

8 ROSENBAUM, J., Dissenting 20-12781

The next day, Sosa appeared by video before a magistrate judge. Though Sosa tried to explain the mistaken identity, “several Martin County jailers threatened him and told him not to talk to the judge during his hearing.” As a result, Sosa “thought it was a crime to talk to the judge.”

Sosa spent the rest of that day in jail.

And then he spent the next day in jail as well.

Finally, after detaining Sosa for three nights, deputies finger- printed him on April 23 and released him in the late afternoon. In the meantime, Sosa missed work and had to pay to retrieve his truck from impoundment.

II. Under our binding precedent, Sosa alleged sufficient facts to survive the Martin County jailers’ motion to dismiss based on qualified immunity. Qualified immunity shields from liability “all but the plainly incompetent or one who is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quo- tation 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). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 39 of 89

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To receive qualified immunity, a public official must first establish that he was acting within the scope of his discretion- ary authority when the challenged action occurred. Maddox v. Ste- phens, 727 F.3d 1109, 1120 (11th Cir. 2013). When we speak of “discretionary authority,” we mean all actions the official took (1) in performing his duties and (2) in the scope of his authority. Jor- dan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994). Deputy Sanchez and the other deputies at the 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 qual- ified immunity is inappropriate. See id. To do that, the factual al- legations in Sosa’s complaint must establish two things: (1) the deputies violated his constitutional rights by detaining him for three nights and days on a warrant for a different David Sosa when the deputies knew or should have known that he was not the wanted Sosa; and (2) those rights were “clearly established,” in that “every reasonable official would have understood that what he [wa]s doing violate[d] that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). As I explain below, Sosa’s complaint does both. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 40 of 89

10 ROSENBAUM, J., Dissenting 20-12781

A. Sosa sufficiently alleged that deputies violated his constitu- tional rights by continuing to detain him when they knew or should have known that he was entitled to release. Sosa’s complaint alleged sufficient facts to establish that the Martin County jail deputies violated his constitutional rights by continuing to detain him when they knew or should have known that he was entitled to release. That is so for two reasons. First, our holding in Cannon requires the conclusion that Sosa stated a claim for violation of his constitutional rights. And second, the Su- preme Court’s decision in Baker independently supports the same outcome. 1. Cannon and its progeny require the conclusion that Sosa sufficiently alleged that jail deputies violated his constitu- tional right to be free from continued detention when it was or should have been known that he was entitled to re- lease. Though a warrant can support an arrest, we have long rec- ognized that, “under certain circumstances, a detention following a valid arrest may present a viable section 1983 claim where the detainee protests the detention on the basis of misidentification.” Case, 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 misi- dentification 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 USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 41 of 89

20-12781 ROSENBAUM, J., Dissenting 11

protects the “right to be free from continued detention after it was or should have been known that the detainee was entitled to re- lease.” Id. at 1563. A state official violates that right when he shows “deliberate indifference” to the plaintiff’s right to be free from un- warranted 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 vio- lated Gray’s due-process rights under the Fourteenth Amendment. . . . On remand, . . . the principal question for the trier of fact will be whether [the defendant jailers] acted with something akin to de- liberate 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 parole-violation warrants.”);5 Gar- cia v. Cnty. of Riverside, 817 F.3d 635, 639–43 (9th Cir. 2016) (“[A]n obvious physical discrepancy between a warrant subject and a

5 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 de- tention.”). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 42 of 89

12 ROSENBAUM, J., Dissenting 20-12781

booked individual, such as a nine-inch difference in height, accom- panied by a detainee’s complaints of misidentification, should prompt officers to engage in readily available and resource-efficient identity checks, such as a fingerprint comparison, to ensure that they are not detaining the wrong person.”); Russo v. City of Bridge- port, 479 F.3d 196, 209 (2d Cir. 2007) (concluding that plaintiff suf- ficiently alleged a constitutional violation based on his lengthy de- tention, given “(1) the length of time of [his] wrongful incarcera- tion, (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 con- text 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 re- leased from confinement ‘after it was or should have been known that the detainee was entitled to release’”) (quoting Cannon, 1 F.3d at 1563). 6

6 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 Con- stitution 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 unrea- sonable seizures, Russo, 479 F.3d at 208–09. So does the Third Circuit. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 43 of 89

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As Cannon demonstrates, state officials violate this right by displaying deliberate indifference to the likelihood that a detainee’s identity does not match that of the suspect. In Cannon, a deputy encountered the plaintiff—then known as Mary Rene Parrott—at a rest stop in Georgia. Id. at 1560. When he ran her name through the National Crime Information Center database (“NCIC”), he learned that Kentucky wanted a Mary E. Mann, also known as Mary E. Parrott, for crimes. Id. So he validly arrested Parrott and took her to jail. Id. At the jail, the arresting deputy handed Parrott off to the jailer, Deputy Collins, who completed Parrott’s arrest re- port. Id. Parrott repeatedly protested that she was not Mann. Id. Still, the officer stated that he identified Parrott as Mann because

Schneyder, 653 F.3d at 330. Regardless, though, as the Second Circuit has ex- plained, some disagreement over the source of the right “is of no conse- quence” to whether the right exists. See Russo, 479 F.3d at 212 (quoting Wil- son 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 constitu- tional 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 affirm- ative’; 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’”). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 44 of 89

14 ROSENBAUM, J., Dissenting 20-12781

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 tes- tified that he had filled out the arrest report with information he had obtained directly from Parrott. Id. But the information in the arrest report matched the information in the NCIC report (except that the Social Security number matched the Social Security num- ber of another individual listed on the NCIC report for Mann). Id. This mismatch, we said, suggested that Deputy Collins hadn’t got- ten the information from Parrott at all; he had simply “copied it directly from the NCIC report.” Id. Deputy Collins also attested to a local judge that he believed Parrott to be the wanted Mann, so the judge issued a fugitive warrant for Parrott’s arrest. Id. at 1561. Ultimately, Parrott spent a total of seven days in the Georgia jail before she was transferred to Kentucky, where authorities promptly released her when they discovered that she was not Mann. Id.

When we considered Parrott’s case, we explained that “Col- lins’ failure to take any steps to identify [Parrott] as the wanted USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 45 of 89

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fugitive was sufficient to raise a question of fact as to his deliberate indifference toward [Parrott’s] due process rights.” Id. at 1564. In reaching this conclusion, we recognized that Baker did not “pre- clude all § 1983 claims based on false imprisonment.” Id. at 1562. To be sure, we acknowledged that “those responsible for maintain- ing custody of detainees are not constitutionally required ‘to inves- tigate independently every claim of innocence.’” Id. (quoting Baker, 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 deten- tion 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 re- mains good law. And applying its holding requires the answer the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 46 of 89

16 ROSENBAUM, J., Dissenting 20-12781

panel reached: Sosa sufficiently alleged a violation of his substan- tive-due-process rights. Indeed, Sosa alleged enough facts to bring his case squarely under Cannon’s control. Like Parrott, Sosa asserted that “from the time of [his] initial detention at the [traffic stop], []he repeatedly maintained that []he was not [the wanted Sosa].” Cannon, 1 F.3d at 1560. In the same way that Parrott’s Social Security Number and birth date differed from Mann’s Social Security Number and birth date, Sosa’s “Social Security Number and date of birth were differ- ent from the Social Security Number and date of birth of [the wanted Sosa].” Id. at 1564. And just as “Cannon’s physical makeup did not match the physical description for Mann,” id. at 1563, Sosa’s physical makeup did not match the physical description for the wanted Sosa’s. The two had different heights, weights, and tat- tooed status (Sosa had none). In fact, according to Sosa, he “ex- plained this in detail to a Martin County deputy named Sanchez as well as some other Martin County jailers and employees in the booking area, who took down his information and claimed they would look into the matter.” Not only that, but the warrant on which Sosa was arrested was 26 years old, from halfway across the country, and sought a person with a name thousands of people shared.

On top of all this—and this is the kicker—Sosa also informed the deputies that the Martin County Sheriff’s Office had previously mistakenly arrested him on the same wanted Sosa’s warrant. Let USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 47 of 89

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that sink in: The Martin County Sheriff’s Office had already made this same mistake once before.

Despite this sea of urgently waving red flags signaling that Sosa was unlikely the wanted, allegedly crack-cocaine-trafficking Sosa, the deputies did nothing for three nights and days to confirm Sosa’s identity as the wanted Sosa. So there Sosa sat.

These allegations sufficiently establish that Sanchez and other deputies at the jail had enough information to know (1) that a substantial likelihood existed that Sosa was not the wanted Sosa and (2) that they had the means readily available to rapidly confirm Sosa’s identity. After all, the same sheriff’s office had verified Sosa’s identity by fingerprinting just three-and-a-half years earlier when it arrested him in error the first time. And in 2018, finally, after Sosa spent three nights and days in jail, an unnamed deputy took Sosa’s fingerprints—a standard police tool long used by every U.S. police force. When the deputy did so, he confirmed with ease that Sosa was not the wanted Sosa.

Under these circumstances, the jailers acted with deliberate indifference towards Sosa’s due-process rights when they failed for three nights and days to verify that Sosa was the wanted Sosa—in the same way that Collins violated Parrott’s due-process rights when he failed, “in the face of [Parrott’s] assertions of mistaken identity,” to take “any steps to verify” her identity. Id. at 1565. Given these parallels, Sosa’s allegations about the Martin County Sheriff’s Office’s “failure to take any steps to identify [Sosa] as the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 48 of 89

18 ROSENBAUM, J., Dissenting 20-12781

wanted fugitive [are] sufficient” to state a claim that the deputies acted with “deliberate indifference toward [Sosa’s] due process rights.” Id. at 1564.

Relying on two irrelevant facts, the Majority Opinion tries to distinguish Sosa’s case from Cannon. In the Majority Opinion’s view, Cannon does not govern here because (1) “the Cannon de- tainee was [not] arrested on a valid warrant supported by probable cause,” Maj. Op. at 12, and (2) “the Cannon detainee was held for seven days,” id. But neither distinction excuses compliance with Cannon’s rule.

First, the Majority Opinion’s distinction between an arrest based on a warrant supported by probable cause (Sosa’s case) and a warrantless arrest also supported by probable cause (Cannon) is meaningless under Cannon. The warrant/warrantless distinction doesn’t matter because the arrests in both cases were supported by probable cause, so they were valid. And we’re not talking about the arrests; we’re talking about the detentions after the arrests. That is so because, as the Majority Opinion’s author has explained, “a detention following a valid arrest may present a viable section 1983 claim where the detainee protests the detention on the basis of misidentification.” Case, 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 accompa- nied by a later, unconstitutional detention. Just as Sosa was ar- rested roadside on an outstanding warrant, Parrott was arrested at USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 49 of 89

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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 prob- able 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 aris- ing from an unconstitutional overdetention. Rather, what matters is that both Sosa and Parrott were validly arrested based on proba- ble cause. And after that happened, they were transported to the jail, where their jailers were deliberately indifferent to the many indications that Sosa and Parrott were not their sought-after name doppelgangers.

The Majority Opinion’s second fact-bound attempt to wrig- gle out of Cannon’s holding—“the Cannon detainee was held for seven days”—fares no better. True, Parrott was held for seven days, while Sosa was held for three. But the right Cannon recog- nizes—the “right to be free from continued detention after it was or should have been known that the detainee was entitled to re- lease,” Cannon, 1 F.3d at 1563—is not triggered by the passing of a USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 50 of 89

20 ROSENBAUM, J., Dissenting 20-12781

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 rel- evant to the issue of whether a constitutional violation has oc- curred in the first place.”).

And here—especially given this appeal’s posture, which re- quires us to view Sosa’s allegations in the light most favorable to him—it’s clear that the officers knew or should have known that Sosa was not the wanted Sosa well before three nights and days passed. We know this because, during Sosa’s arrest in 2014 on the same warrant, the same sheriff’s office fingerprinted and released him no more than three hours after detaining him.

If the deputies’ knowledge was enough to alert them within three hours that they had the wrong Sosa in 2014, the deputies’ knowledge was enough to alert them of that same problem in 2018 well before three nights and three days passed. In fact, in 2018, the deputies had even more reason to know that they had the wrong Sosa: unlike in 2014, Sosa told the officers that their office had pre- viously made the same mistake when they arrested him on the

7 As I explain later in this dissent, see infra at 23–24, it makes no sense—and has no constitutional grounding—to base a constitutional right on some arbi- trary amount of time that the Majority Opinion has plucked out of a hat. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 51 of 89

20-12781 ROSENBAUM, J., Dissenting 21

same warrant in 2014. Plus, the 1992 warrant had only gotten older by 2018, increasing the need to confirm Sosa’s identity. And based on his 2014 experience, in 2018, Sosa was able to explain to officers that he knew he did not match the wanted Sosa’s identifiers. Yet despite these added indicators that they had the wrong man, Mar- tin County deputies held Sosa not for three hours but for three days.

So here, whether Sosa was held for three days or seven days makes no difference to whether the officers violated Sosa’s consti- tutional rights when they continued to detain him after they knew or should have known that he was entitled to release: in both cases, the jailers knew or should have known well before the passage of the entire detention period that the person detained was entitled to release.

To sum up, then, I can’t say it better than the Majority Opin- ion: “If we treated every factual distinction from a precedential de- cision as necessarily material, the doctrine of precedent would lose most of its function.” Maj. Op. at 9 (citations omitted). The Ma- jority Opinion’s efforts to distinguish Cannon fail because the two factual distinctions it invokes are irrelevant to Cannon’s analysis. So the prior-precedent rule requires the conclusion that Cannon controls Sosa’s case. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 52 of 89

22 ROSENBAUM, J., Dissenting 20-12781

2. Baker does not require—or even support—the conclusion that Sosa had no Fourteenth Amendment due-process right to be free from continued detention when it was or should have been known that he was entitled to release. Given this failure to circumvent our controlling precedent, the Majority Opinion tries another tack. In its second effort, the Majority Opinion misreads Baker and once again invokes immate- rial facts—this time to argue that Baker supports the decision the Majority Opinion arrives at and precludes the answer I reach. But Baker neither supports the Majority Opinion’s answer nor pre- cludes mine. According to the Majority Opinion, “[u]nder Baker, no vio- lation of due process occurs if a detainee’s arrest warrant is valid and his detention lasts an amount of time no more than the three days that [the Baker plaintiff] was detained.” Maj. Op. at 8. Of course, Sosa was arrested on a valid arrest warrant, and his deten- tion lasted for three nights and days, so the Majority Opinion points to these two facts and declares “mission accomplished” in rejecting Sosa’s position. But the Majority Opinion declares victory too soon. Below, I explain why each of the two factual similarities be- tween Baker and Sosa’s case—the existence of an arrest warrant and a detention for three days—are immaterial to Baker’s reason- ing and outcome, and why Baker’s reasoning actually requires us to conclude that the jail deputies here violated Sosa’s constitutional rights. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 53 of 89

20-12781 ROSENBAUM, J., Dissenting 23

I start with the three days. As we explained in Cannon, Baker “recognized . . . that after the lapse of a certain amount of time, continued detention in the face of repeated protests will de- prive the accused of liberty without due process.” Cannon, 1 F.3d at 1562. The Majority Opinion says Baker holds that three days can never be enough to qualify as a constitutional deprivation. See Maj. Op. at 8. But the Majority Opinion confuses Baker’s outcome (three days was not enough under the circumstances in Baker) with the limiting principle the Supreme Court applied to reach that out- come. In so doing, the Majority Opinion treats three days as some type of magic number that the Supreme Court arbitrarily shook out of a magic 8 ball—or, to use my colleague Judge Newsom’s terminology, “ma[d]e . . . up.” See Newsom Op. at 11. That is not how the law works, and that is not what the Su- preme Court did. Rather, as other courts have acknowledged, see Lee v. City of Los Angeles, 250 F.3d 668, 684 (9th Cir. 2001), and infra at 27–29, the Supreme Court applied a legal reason—or limit- ing 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 em- ployed in Baker to arrive at that decision is critical to properly ap- plying Baker here or in any other case. Only after we identify that limiting principle can we apply it to the facts here to determine whether Sosa’s period of detention amounted to an USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 54 of 89

24 ROSENBAUM, J., Dissenting 20-12781

unconstitutional deprivation of liberty. But that’s a step the Major- ity Opinion skips. I therefore turn to Baker’s limiting principle. Some might think that Baker offers two possible answers. One possible limiting principle could be viewed as simply the Sixth Amendment: that a “detention pursuant to a valid warrant but in the face of repeated protests of innocence will . . . deprive the accused of ‘liberty . . . without due process of law,’” Baker, 443 U.S. at 145, when it trans- gresses 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 be- comes 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 an- swer comes from this passage in Baker, which mentions the right to a speedy trial: Obviously, one in respondent’s position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial . . . . USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 55 of 89

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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. First, our binding precedent forecloses that reading of Baker. To begin with, we certainly did not understand Baker that way in Cannon. Not only did Parrott not invoke her speedy-trial rights, but Cannon lacks any reference to that right. See generally Can- non, 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 prej- udicial”—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 lim- iting 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 con- clude that the seven-day detention period in Cannon violated Par- rott’s constitutional rights. So we obviously did not view Baker’s limiting principle as resting on the Sixth Amendment speedy-trial right. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 56 of 89

26 ROSENBAUM, J., Dissenting 20-12781

And second, even without considering Cannon, this reading of Baker is still wrong. That is because Baker follows its mention of the speedy-trial right with this statement: We may even assume, arguendo, that, depending on what procedures the State affords defendants follow- ing arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of “liberty . . . without due process of law.” 443 U.S. at 145. 8 This passage does not invoke the speedy-trial right. Rather, it recognizes that neither that right nor other post-

8 Of course, I recognize that this statement is dicta. But as we have explained, “there is dicta and then there is dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). And “[w]e have pre- viously recognized that ‘dicta from the Supreme Court is not something to be lightly cast aside.’” Id. (citation omitted). Indeed, we applied this dicta in Can- non. 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 sugges- tion that the Sixth Amendment’s speedy-trial clause serves as the only limit on USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 57 of 89

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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 inde- pendently of a claim for any other constitutional violation, includ- ing 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 accused of ‘liberty . . . without due process of law,’” id., when it becomes unreasonable, under the totality of the circumstances, not to verify the arrestee’s identity. Baker shows why that is so. In Baker, Leonard McCollan obtained a duplicate of his brother—the plaintiff—Linnie’s driver’s license. Id. at 140. Leon- ard’s 9 version of the license was the same as Linnie’s in every way, except that the photo was of Leonard. Id. So when Leonard was arrested on narcotics charges, he was booked as Linnie. Id. at 140– 41. Leonard also signed documents during his arrest as Linnie and was released on bail as Linnie. Id. at 141. As a result, the police (reasonably) believed that they had arrested Linnie.

prolonged pretrial detention”); Hayes v. Faulkner Cnty., 388 F.3d 669, 673 (8th Cir. 2004). 9 To avoid confusion, I use the McCollans’ first names in my discussion of Baker. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 58 of 89

28 ROSENBAUM, J., Dissenting 20-12781

Then Leonard skipped bond after his release on bail, and Leonard’s bondsman procured a warrant out of Potter County, Texas, for the arrest of “Linnie Carl McCollan.” About two months later, a police officer pulled over Linnie for a traffic stop in Dallas, Texas. Id. The police officer arrested Linnie on Leonard’s warrant (issued against Linnie). Id. Linnie was then transferred to the cus- tody of the deputies in the county from where the warrant issued. Id. He remained there for three nights over the New Year’s holiday weekend, until officials, in comparing Linnie’s appearance to the file photo of the wanted person, realized that Linnie was not that man. Id. Linnie sued the county sheriff under § 1983, alleging that the county’s custody of him violated his Fourteenth Amendment rights. Id. The Supreme Court disagreed. Id. at 146–47.

In reaching this conclusion, the Court acknowledged that “one in [Linnie’s] position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant un- der which he was arrested and detained met the standards of the Fourth Amendment.” Id. at 144 (emphasis added). Then, the Court suggested that a state’s procedures or lack thereof, depend- ing on what those procedures were, could violate a detainee’s due- process right to liberty. Id. at 145. And finally, it concluded, “[W]e are quite certain that a detention of three days over a New Year’s weekend does not and could not amount to such a deprivation.” Id. (emphasis added). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 59 of 89

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In other words, in determining that Baker had not violated Linnie’s constitutional rights when he did not release Linnie for three days after Linnie was arrested, the Court accounted for the peculiarities of each of the following three things: (1) Linnie’s situ- ation; (2) the procedures the state provided to ensure Linnie was the wanted person; and (3) the period during which Linnie was de- tained. On its face, this, of course, is a totality-of-the-circumstances analysis. See Lee, 250 F.3d at 684 (recognizing that the Baker Court considered the circumstances in evaluating whether Linnie’s con- stitutional rights had been violated).

In applying that totality-of-the-circumstances reasonable- ness test, the Supreme Court implicitly considered the following: (1) that Linnie’s name was on the warrant he was arrested on; (2) that Linnie’s name was on there because his brother Leonard had “masquerad[ed] as Linnie” and had a driver’s license with Linnie’s name on it when he was booked on drug charges and released on bail; and (3) that the three-day period over which Linnie was held was the three-day 1973 “New Year’s weekend.” See id. at 140–45. The first two considerations explained why determining whether Linnie was, in fact, the wanted person was not simple and straight- forward. The third consideration evaluated the reasonableness, under the circumstances, of expecting the officers to “investigate” Linnie’s claims of innocence. See id. at 145–46.

In 1972 and 1973, when Linnie was arrested and detained, that effort was significant enough that the Supreme Court referred USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 60 of 89

30 ROSENBAUM, J., Dissenting 20-12781

to it as a need to “investigate.” Id. at 146. No wonder. For those who weren’t around in the pre-digital days of typewriters (and Liq- uid Paper for correcting errors), “snail” mail, and records rooms filled floor to ceiling with files, I briefly detour to describe what verifying identity required back then.

In the early ‘70s, an officer who wanted to confirm that he had the right detainee first would have had to obtain a paper copy of the file for the wanted person because that’s where the wanted person’s identification information would have been located. 10 But the paper file very well might not be stored at the jail. If the jail didn’t have the file, the officer would have had to ask, and then wait, for the file to be mailed or messengered to her. Depending on the circumstances (like whether it was a three-day holiday weekend), the time that process took could vary appreciably.

And even if the officers stored the paper file on the jail prem- ises, the file likely would have been in a restricted-access records room (so law enforcement could keep track of who had the paper file at any particular time). That meant that our officer would have

10 In 1972 and 1973, even facsimile machines were not widely used and were extremely expensive (about $18,000 then). Lynn Simross, “The Fax Revolu- tion: At Home and at Work, Facsimile Machines Have Become the Essential Business Tools,” LOS ANGELES TIMES (Sept. 11, 1991), https://www.latimes.com/archives/la-xpm-1991-09-11-vw-1950-story.html. And the best ones took about six minutes to transmit a single page and weighed in at about 100 pounds. Id. Fortune 500 companies were the ones who used them. Id. This remained the case until the late 1980s. Id. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 61 of 89

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needed to (1) physically go to the records room and (2) hope or plan that someone would be there to sign the file out. Then, if the officer compared a photograph of the wanted person to the ar- rested person, that officer might not have been unable to make a definitive identification. So the officer might have needed to con- duct a fingerprint comparison. And if the officer had wanted to do that, he generally would have had to send the fingerprint cards of both the wanted person and the arrested person to an expert (or the FBI) for a manual comparison. Of course, that added time for physical shipment in each direction. On top of that, the expert then would have had to engage in the time-intensive process of manu- ally examining both sets of fingerprints to see whether they shared at least a certain number of the same features. This type of inves- tigation could require “weeks or months.” Maryland v. King, 569 U.S. 435, 459 (2013).

And that burden mattered in the Supreme Court’s assess- ment of whether, under the totality of the circumstances, the ac- tions of the Baker officers were reasonable. As the Court explained, again showing it was applying a totality-of-the-circumstances anal- ysis, “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Baker, 443 U.S. at 145 (emphasis added) (quoting Patterson v. New York, 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 62 of 89

32 ROSENBAUM, J., Dissenting 20-12781

The Majority Opinion just dismisses this fact. It justifies its refusal to acknowledge the importance of the holiday period—one that the Supreme Court itself relied on—by saying that “detainees have the same due-process rights on holidays as they do every other day of the year, so the incidence of a holiday does not change our constitutional analysis.” See Maj. Op. at 10. But we have no business ignoring the Supreme Court’s treatment of the New Year’s holiday period as material to its decision. After all, “the prin- ciple of the case[] is not found in the reasons or the rule of law set forth in the opinion, nor by a consideration of all of the ascertaina- ble facts of the case and the judge’s decision. . . . [T]he principle of the case is found by taking account of the facts treated by the judge as material and his decision upon them, taking also into account those facts treated by him as immaterial.” Tex. & P. Ry. Co. v. La. Oil Refin. Corp., 76 F.2d 465, 467 (5th Cir. 1935) (citation and quo- tation 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 constitu- tional right the Supreme Court identified (that detainees have on holidays and every other day) is the right to that amount of process that is reasonable under the totality of the circumstances. And as Baker indicates, what is reasonable during a New Year’s weekend may be quite different from what is reasonable during a non-holi- day period. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 63 of 89

20-12781 ROSENBAUM, J., Dissenting 33

New Year’s weekend is known for being a time when, tradi- tionally, less essential public services are not fully staffed. So during that holiday period, it was unreasonable to expect officers operat- ing in a lightly staffed jail to leave the jail to physically locate the file on Leonard (or find an officer outside the jail to retrieve the file and take it to the jail), review it, compare the photograph of the wanted individual to Linnie, possibly analyze the fingerprints, and recognize that the two were different people. But as I discuss be- low, now, confirming identity is worlds easier and faster (and re- quires far less effort).

Other courts have also recognized that the nature of the par- ticular three-day period for which Linnie was detained mattered to the Supreme Court’s conclusion that the sheriff in Baker did not violate Linnie’s constitutional rights. For example, in Patton v. Przybylski, the Seventh Circuit construed Baker as having dis- counted non-business days in determining the length of the period the Baker jailers had to confirm Linnie’s identity. 822 F.2d 697, 700 (7th Cir. 1987). And in Lee, the Ninth Circuit rejected the defend- ants’ 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 totality-of-the-circumstances test to conclude that a one-day incarceration violated the plaintiff’s due- process rights there. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 64 of 89

34 ROSENBAUM, J., Dissenting 20-12781

Yet in a single, conclusory sentence, the Majority Opinion announces, “Nor did the Court rely on the unstated ‘limiting prin- ciple’ of reasonableness that our dissenting colleague has discerned from Baker.” Maj. Op. at 9 (citation omitted). The Majority Opin- ion fails to grapple with the Court’s deliberate word choices and analysis showing that it applied a reasonableness-under-the-total- ity-of-the-circumstances test. Instead, as I’ve mentioned, it asks us to consider only Baker’s result while disregarding the rest of the opinion as though it is fluff. Based on the Majority Opinion’s inter- pretation of Baker, the Supreme Court arrived at an unreasoned conclusion that three days’ detention after a valid arrest can never, under any circumstances, be enough to state a constitutional claim, and it did so by applying no rule, instead engaging in a judicial game of magic 8 ball. Most respectfully, I cannot agree to do that. The Supreme Court’s Baker analysis is reasoned, and we must abide by the reasoning that animates it.

When we apply Baker’s reasonableness-under-the-totality- of-the-circumstances limiting principle here, we must conclude that Sosa has stated a constitutional claim. Six facts make the cir- cumstances in this case differ materially from those in Baker—all in ways that favor Sosa’s claim.11 Indeed, even the Majority Opinion

11 The Newsom Concurrence points to these six differences between Baker and Sosa’s case as evidence of the “freewheelingness” of the substantive-due- process analysis. Newsom Conc. at 6. But totality-of-the-circumstances tests (which necessarily depend on the factual circumstances of the given case) like the limiting principle that controls Baker are not unique to substantive-due- USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 65 of 89

20-12781 ROSENBAUM, J., Dissenting 35

does not argue that Sosa’s claim fails under a reasonableness-under- the-totality-of-the-circumstances test. So we turn to the six mate- rial differences.

First, Sosa was arrested and detained in 2018, not 1972 and ‘73. While fingerprinting was standard practice upon booking at both times, 12 confirming identity was a lot more time-consuming in 1972 and ‘73 than it was in 2018. Unlike the labor-intensive,

process analysis in constitutional law. Totality-of-the-circumstances tests also govern the analysis when a litigant raises an allegation of the violation of cer- tain enumerated constitutional rights. The Fourth Amendment provides a good example. We determine whether a search or seizure is constitutionally permissible under the Fourth Amendment by evaluating the totality of the circumstances. See, e.g., Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1250 (11th Cir. 2022). We also assess excessive-force claims under the Fourth Amendment by looking to reasonableness under the totality of the cir- cumstances. Tillis on behalf of Wuenschel v. Brown, 12 F.4th 1291, 1298 (11th Cir. 2021). Similarly, we apply a totality-of-the-circumstances test when we consider whether a person has waived his Fifth Amendment right against self- incrimination. United States v. Smith, 821 F.3d 1293, 1304–05 (11th Cir. 2016). Totality-of-the-circumstances tests are prevalent in and significant to constitu- tional 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. 12 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 iden- tification processes.”) (cleaned up). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 66 of 89

36 ROSENBAUM, J., Dissenting 20-12781

multi-day process in the early ‘70s, in 2018, pressing a button on the computer to see if a detainee’s fingerprints matched a wanted person’s fingerprints was all it took to confirm identity.

That is so because the FBI launched the Integrated Auto- mated Fingerprint Identification System (“IAFIS”) in 1999. King, 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 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 in- creased retention and searching of fingerprints” and other bio- metric 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 func- tion that is accessible to law-enforcement officers nationwide. Next Generation Identification (NGI), FBI, https://le.fbi.gov/sci- ence-and-lab-resources/biometrics-and- USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 67 of 89

20-12781 ROSENBAUM, J., Dissenting 37

fingerprints/biometrics/next-generation-identification-ngi (last visited Jan. 19, 2023). Notably, that function allows for fingerprints from a detainee to be compared to those in a “national repository of wants and warrants” and has “response times of less than 10 sec- onds.” Id. (emphasis added). So unlike in 1972, when the process could have required “weeks or months,” in 2018, an officer like Sosa’s jail deputies could confirm an identity (or as relevant here, clear up a misidentification) with less than a minute’s work.13 Second, the circumstances here also differ from those in Baker in that no one “set up” Sosa the way that Leonard did his brother Linnie. In Baker, the officers who put out the be-on-the- lookout warning thought they were, in fact, looking for Linnie. But in Sosa’s case, the officers were not under the mistaken impres- sion that they were looking for Sosa; they were simply looking for someone with the name “David Sosa.” That is, the officers weren’t purposefully misled the way the Baker officers were.

That difference is key. When a person has been framed—or even when officers otherwise mistakenly believe the wrong person has committed a crime—a substantive “investigation,” in the Su- preme Court’s words, Baker, 443 U.S. at 146, is necessary to clear the person wrongly suspected of having committed the crime. An

13 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. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 68 of 89

38 ROSENBAUM, J., Dissenting 20-12781

“investigation” can require a lot of time, effort, and leg work. And it would be neither practical nor reasonable to expect jailers to en- gage 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/defi- nition/american_english/investigation (last visited Jan. 19, 2023) (describing an “investigation” as “[a] formal inquiry or systematic study”). Rather, a simple NGI fingerprint comparison definitively, easily, and quickly resolves the misunderstanding. And because fingerprinting is standard operating procedure in American jails to- day, performed for the very purpose of identifying detainees, ex- pecting jailers to engage in this activity imposes no additional bur- den on them.

The third circumstance that distinguishes this case from Baker is that Sosa’s arrest occurred in Florida 26 years after Texas issued the warrant he was arrested on, while Linnie’s happened only two months after Leonard skipped bail in the same state. That lapse of time and geographical difference further amplified the like- lihood in Sosa’s case that an identity error may have occurred.

Fourth, unlike Linnie, Sosa matched almost none of the identifiers for the wanted Sosa. And he repeatedly advised officers USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 69 of 89

20-12781 ROSENBAUM, J., Dissenting 39

of this fact and that they had previously mistakenly arrested him on the same warrant just a few years earlier.

Fifth, Sosa’s name is much more common than Linnie’s— there were thousands of “David Sosas” in the United States during the relevant period. That made it statistically far less likely that any particular arrested person named “David Sosa” would be the wanted Sosa than that Linnie McCollan was the wanted Linnie McCollan. Given the thousands of David Sosas in the United States (and especially in light of Sosa’s protests and the differences in iden- tifiers between Sosa and the wanted Sosa), the officers’ chances of getting selected to play Jeopardy! would have been greater than their chances of having the correct David Sosa in custody.14

And sixth, though two of the days Sosa was imprisoned fell over the weekend,15 unlike in Baker, no holiday was involved. Nor is there any other indication that the jail was understaffed in com- parison to other days (and certainly not so understaffed as not to

14 According to now-Jeopardy! host Ken Jennings, “it’s 10 times harder to get on ‘Jeopardy!’ than to get into Yale.” See Lottie Elizabeth Johnson, The online ‘Jeopardy!’ test is about to happen and Ken Jennings is here to help you suc- ceed, DESERET NEWS (Apr. 4, 2019), https://www.deseret.com/2019/4/4/20670100/the-online-jeopardy-test-is- about-to-happen-and-ken-jennings-is-here-to-help-you-succeed#in-advance- of-the-online-jeopardy-test-which-is-available-april-9-11-jeopardy-legend-ken- jennings-shared-test-taking-tips-with-the-deseret-news. 15 Sosa was arrested on a Friday—a weekday—and released at 3:00 p.m. on a Monday. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 70 of 89

40 ROSENBAUM, J., Dissenting 20-12781

be able to run a ten-second fingerprint comparison), as the Su- preme Court’s remark about the “three-day holiday weekend” re- flects it concluded the jail likely was in Baker.

So when we apply Baker’s limiting principle—the time after which “detention pursuant to a valid warrant but in the face of re- peated protests of innocence will . . . deprive the accused of ‘liberty . . . without due process of law,’” Baker, 443 U.S. at 145, accrues when it becomes unreasonable, under the totality of the circum- stances, not to verify the arrestee’s identity—here, we can reach only one conclusion: that the officers violated Sosa’s constitutional rights.

In sum, unlike in Baker, no one was trying to trick the offic- ers into thinking Sosa was the wanted Sosa; the several signs sug- gesting that Sosa was not the wanted Sosa practically hit the offic- ers over the head; the officers could have easily confirmed that Sosa was not the wanted Sosa with less than a minute of an officer’s time engaging in a standard jail operating procedure; and nothing in the record reveals that the jail was short-staffed or was experiencing any kind of crisis during the period Sosa was there. Under these circumstances, it was simply unreasonable for the officers to have waited three nights and three days while Sosa sat in jail before they even tried to confirm Sosa’s identity. 16

16 Of course, because Baker applies a totality-of-the circumstances test, some circumstances might justify longer periods of detention before identity USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 71 of 89

20-12781 ROSENBAUM, J., Dissenting 41

The Majority Opinion errs because it does not bother to de- termine and apply Baker’s limiting principle. Rather, it rigidly in- sists on substituting the result Baker reached after applying its lim- iting principle—that the three days in Baker did not violate Linnie’s rights—for the limiting principle itself. Then, it incorrectly de- scribes the results of Baker’s application of its limiting principle as the limiting principle itself: that three days can never violate a de- tainee’s constitutional rights. And because Sosa spent three days in jail, the Majority Opinion incorrectly concludes that Baker pre- cludes the finding that the jail officers violated Sosa’s constitutional rights.

Properly read, though, Baker and its reasonableness-under- the-totality-of-the-circumstances principle support the conclusion that Sosa sufficiently alleged that Sanchez and the other jailers vio- lated his constitutional rights. After all, despite strong reason to suspect Sosa was not the wanted Sosa, the officers refused for three nights and three days to invest less than a minute of work to con- firm Sosa’s identity, while all the time, Sosa remained in jail. Under the totality of the circumstances, that is not just unreasonable but extraordinarily so. And Baker’s limiting principle does not tolerate it.

confirmation. For example, confirming identity on the date of arrest might not be reasonable in situations where a prolonged power outage persisted, a natural disaster with life-safety issues occurred, or an unavoidable lack of staff that potentially jeopardized safety happened. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 72 of 89

42 ROSENBAUM, J., Dissenting 20-12781

B. Sosa’s Fourteenth Amendment due-process right to be free from continued detention when it was or should have been known that Sosa was entitled to release was clearly estab- lished when the Martin County jailers violated it. Because Sosa sufficiently alleged that Sanchez and the other jail deputies violated his Fourteenth Amendment due-process rights under our precedent, I next consider whether that right was clearly established when the alleged violation occurred. I conclude that it was. A right is clearly established when “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (cleaned up). So though the Su- preme Court or we need not have held “the very action in ques- tion” to be unlawful, the unlawfulness of the action “must be ap- parent” under the law in existence at the time of the violation. Id. at 1312 (cleaned up).

As relevant here, we have recognized that a plaintiff can show that a constitutional right was clearly established when the violation occurred by pointing to “a broader, clearly established principle [that] should control the novel facts” of the case under review. Keating v. City of Miami, 598 F.3d 753, 766 (11th Cir. 2010) (citation and quotation marks omitted). To be sure, the Supreme Court has recently emphasized that the clearly established inquiry “must be undertaken in light of the specific context of the case, not USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 73 of 89

20-12781 ROSENBAUM, J., Dissenting 43

as a broad general proposition.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (citation and quotation marks omitted). At the same time, though, the Court has continued to recognize that its “case law does not require a case directly on point for a right to be clearly established.” Id. at 7–8. And we have not said that Rivas- Villegas abrogated our case law that holds that a plaintiff may show that a right is clearly established by “point[ing] to a broader, clearly established principle that should control the novel facts of the situ- ation,” Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1345 (11th Cir. 2013) (W. Pryor, J.) (cleaned up). So the question we must focus on is whether “every reasonable official would have un- derstood that what he is doing violates [the particular] right.” Ri- vas-Villegas, 142 S. Ct. at 7 (citation and quotation marks omitted).

In satisfying the burden to prove his right was clearly estab- lished, the plaintiff must rely on “law as interpreted by the Supreme Court, the Eleventh Circuit, or the Supreme Court of Florida.” Keating, 598 F.3d at 766. (citation and quotation marks omitted).

Here, Cannon recognized “[t]he constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release.” Cannon, 1 F.3d at 1563. We also held in Cannon that the deputy’s “failure [there] to take any steps to identify [the detained person] as the wanted fugitive was sufficient to raise a question of fact as to his deliberate indifference toward [the detained plaintiff’s] due process rights.” Id. at 1564. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 74 of 89

44 ROSENBAUM, J., Dissenting 20-12781

These principles we announced more than 25 years before the jail deputies encountered Sosa in 2018 control Sosa’s case and put the deputies on notice. They require a showing of two things: (1) the officer had good reason to know that he had a misidentified person wrongly in custody, and (2) despite that knowledge, he did nothing to confirm the person’s identity as the wanted person. See Cannon, 1 F.3d at 1563–64. Sosa has sufficiently alleged both these things.

First, Sosa alleged that (a) he matched almost none of the identifiers for the wanted Sosa; (b) he repeatedly advised Sanchez and other jail deputies that he matched almost none of the identifi- ers for and was not the wanted Sosa; (c) he repeatedly told these same deputies that their Sheriff’s Office had previously mistakenly arrested him on the same warrant a few years earlier; (d) and these deputies acknowledged to him at the time he was booked into the jail that they would look into it. Second, despite knowing of the substantial likelihood that Sosa was not the wanted Sosa and prom- ising to address that concern, for three nights and days, Deputy Sanchez and the other jail deputies took no action to identify Sosa as the wanted Sosa. Instead, they decided to remain deliberately indifferent to Sosa’s entitlement to release. And they did that even though they could have confirmed that he was not the wanted Sosa in under a minute. The deputies’ deliberate indifference here maps directly and specifically onto the principles we announced in Can- non. Indeed, the type of deliberate inaction that the deputies en- gaged in is precisely the type we denounced in Cannon. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 75 of 89

20-12781 ROSENBAUM, J., Dissenting 45

Cannon informed these deputies that they were violating Sosa’s rights as soon as they knew they had strong reason to believe Sosa was not the wanted Sosa and they chose to do nothing.17 Cf. Patel v. Lanier Cnty., 969 F.3d 1173, 1190 (11th Cir. 2020) (holding that the “broad principle” that “[t]he knowledge of the need for medical care and intentional refusal to provide that care” consti- tutes deliberate indifference had put “all law-enforcement officials on notice that if they actually know about a condition that poses a substantial risk of serious harm yet do nothing to address it, they violate the Constitution”) (first emphasis added). And as I’ve noted, we reaffirmed Cannon’s holding repeatedly after we issued it in 1993 and before Sosa was detained in 2018. See Ortega, 85 F.3d at 1526–27; Campbell, 586 F.3d at 840; Case, 555 F.3d at 1330; May, 846 F.3d at 1329.

Not only that, but at least five of our sister circuits have rec- ognized that Cannon established “[t]he constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release.” See, e.g., Russo, 479 F.3d at 207 (“Following Baker, the Eleventh Circuit recognized

17 As I’ve noted, I base my analysis on the facts as alleged by Sosa and viewed in the light most favorable to him. See Lanfear v. Home Depot Inc., 679 F.3d 1267, 1275 (11th Cir. 2012). Should the actual facts establish that Sanchez and the other deputies did not fail to take any readily available, easy steps to con- firm Sosa’s identity, in response to the information Sosa provided, within a reasonable period (considering their other pressing obligations), they would have qualified immunity from suit. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 76 of 89

46 ROSENBAUM, J., Dissenting 20-12781

a Fourteenth Amendment due process right ‘to be free from con- tinued detention after it was or should have been known that the detainee was entitled to release.’”); Schneyder, 653 F.3d at 330 (cit- ing Cannon and noting 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 detainee was entitled to re- lease’”); Martinez v. Santiago, 51 F.4th 258, 262 n.2 (7th Cir. 2022) (describing Cannon as “recognizing right to be free from ‘contin- ued detention after it was or should have been known that the de- tainee was entitled to release’”); Davis v. Hall, 375 F.3d 703, 714 (8th Cir. 2004) (“[T]he Eleventh Circuit has held that prisoners have a ‘constitutional right to be free from continued detention af- ter it was or should have been known that the detainee was entitled to release.’”); Lee, 250 F.3d at 683 (noting that the Eleventh Circuit has “explained [that] a detainee has ‘a constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release’”); see also Gray, 160 F.3d at 276 (citing Cannon to support remand for “trier of fact” to deter- mine “whether [defendants] acted with something akin to deliber- ate indifference in failing to ascertain that the Dwayne Gray they had in custody was not the person wanted by the Michigan author- ities on the outstanding parole-violation warrant”). It’s hard to see how the principle could not have been clearly established for Dep- uty Sanchez and the other jail deputies when at least four other circuits understood it to be so before Sosa’s 2018 encounter (and a fifth recognized as much just last year). USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 77 of 89

20-12781 ROSENBAUM, J., Dissenting 47

In sum, over the past 30 years, we have repeatedly reaf- firmed Cannon’s principle that detainees have a “constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release,” and even our sister circuits have recognized that Cannon established that right. Given these facts, our precedent “placed the . . . consti- tutional question beyond debate.” Reichle, 566 U.S. at 664. And it is not unfair to Deputy Sanchez and the other jail deputies to hold them to these principles. Deputy Sanchez and the other deputies at the jail are not entitled to qualified immunity.

For these reasons, I would reverse the district court’s dismis- sal of Sosa’s overdetention claim and remand for further proceed- ings.

III. The right to be free from continued detention after it was known or should have been known that the defendant was en- titled to be released should be rehomed as a Fourth Amend- ment right. As I’ve explained, our precedent long ago clearly established the substantive-due-process right to be free from continued deten- tion when it was known or should have been known that the per- son was entitled to release. See supra at Section II. But if we were USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 78 of 89

48 ROSENBAUM, J., Dissenting 20-12781

writing on a clean slate, I would conclude that this right finds its home in the Fourth Amendment. 18 The Fourth Amendment protects against “unreasonable . . . seizures.” U.S. Const. amend. IV. As the Supreme Court has ex- plained, the “touchstone of the Fourth Amendment is ‘reasonable- ness.’” Brigham City v. Stuart, 547 US. 398, 403 (2006). And sei- zures—including those of the person—that are not supported by probable cause are unreasonable.

18 As I’ve noted, it makes no difference to the qualified-immunity analysis where the right lives, as long as the right was clearly established before the deputies’ actions (or inactions, in this case). See supra at n.6 (citing Russo, 479 F.3d at 208–09; Wilson, 209 F.3d at 716; and Alexander, 916 F.2d at 1398 n.11). The Second and Third Circuits—I believe correctly—root the right in the Fourth Amendment. Russo, 479 F.3d at 208–09; Schneyder, 653 F.3d at 319– 22, 330. The right more appropriately belongs under the Fourth Amendment because, as I explain above, it falls naturally within the Fourth Amendment’s prohibition against “unreasonable . . . seizures,” U.S. Const. amend. IV. And “[w]here a particular Amendment ‘provides an explicit textual source of con- stitutional 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) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Though, in my view, the Fourth Amendment more appropriately encompasses the right, to be clear, I do not vote to abrogate Cannon. That is so because, as I’ve noted, the specific constitutional source of the right does not affect whether the right is clearly established, and abrogating Cannon without recognizing that the right falls under the Fourth Amendment (as the Newsom Concurrence sug- gests) would wrongly purport to erase the right altogether. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 79 of 89

20-12781 ROSENBAUM, J., Dissenting 49

When we speak of probable cause, we refer to the existence of “facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed . . . an offense.” Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (cleaned up). Notably, this defi- nition requires probable cause to believe two things: first, that a crime was committed, and second, that the person in custody is the one who committed the crime. At the risk of stating the obvious, if only probable cause to believe that a crime was committed were required for an arrest, anyone could be arrested, without respect to who committed the crime. So when it comes to the probable-cause inquiry as it relates to arrests on valid warrants—where the warrant itself evidences the existence of probable cause that a crime was committed by a certain person—we focus on the probable cause to believe the person in custody is the certain one who committed the crime. In making that assessment, once again, reasonableness is our guiding light. We look to “the totality of the circumstances to de- termine the reasonableness of the officer’s belief” that the suspect is, in reality, the person sought in the warrant. See Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019); see also Illinois v. Gates, 462 U.S. 213, 238 (1983) (“reaffirm[ing] the totality-of-the-circum- stances that traditionally has informed probable cause determina- tions”). Because reasonableness under the circumstances drives our determination of whether probable cause exists in any particular situation, the Supreme Court has described probable cause as a USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 80 of 89

50 ROSENBAUM, J., Dissenting 20-12781

“flexible, common-sense standard.” Gates, 462 U.S. at 239; see also Tillman v. Coley, 886 F.2d 317, 321 (11th Cir. 1989) (noting that “probable cause determination depends on the circumstances”). “This standard . . . represents a necessary accommodation between the individual’s right to liberty and the State’s duty to control crime.” Gerstein, 420 U.S. at 112. So, for example, in a roadside arrest on a warrant—where an officer’s safety can be very much at issue and an officer may be alone or present with only one other officer—the probable-cause standard for ensuring the arrested person is the wanted person re- quires less from officers. See, e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1347 n.15 (11th Cir. 2002) (“Trials of guilt or innocence can- not be undertaken by police officers on the side of the road in the middle of the night before an officer can effect a lawful arrest pur- suant to a valid warrant.”). For this reason, under our precedent, Deputy Killough’s roadside arrest of Sosa on the wanted Sosa’s warrant satisfied probable cause, even though Sosa matched only the name, sex, and race of the wanted Sosa. But in a non-emergency situation, when an officer has more time and resources available to ensure she is arresting the person whom the warrant actually seeks, the probable-cause standard de- mands more. See, e.g., Tillman, 886 F.2d at 321 (“This is not a case where time was of the essence in making the arrest. Sheriff Coley had at least three months to resolve his doubts about [the plain- tiff’s] identity.”). And there is no doubt that, on this record, arrest- ing Sosa on the wanted Sosa’s warrant in a non-emergency USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 81 of 89

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situation would have failed miserably to satisfy the Fourth Amend- ment’s probable-cause standard. To be sure, the Supreme Court has said that “the probable cause standard for pretrial detention is the same as that for arrest.” Baker, 443 U.S. at 143. But for four reasons, under the Fourth Amendment, that cannot excuse jailers from timely verifying the identity of those in custody when they can reasonably do so. First, a lot has changed since the 70s, when the Supreme Court issued Baker, but it remains the case that the lifeblood of the Fourth Amendment continues to be reasonableness. And “reason- able” now means the same thing it did when the Fourth Amend- ment was adopted: “agreeable to the Rules of Rea[s]on; ju[s]t, right, con[s]cionable.” Compare Reasonable, N. Bailey, UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (1770), with Reasonable, BLACK’S LAW DICTIONARY (11th ed. 2019) (“1. Fair, proper, or mod- erate under the circumstances; sensible .”). So in 1972 or ‘73, asking a jail deputy to drop everything to fetch a physical file, send off fingerprints, and wait for confirmation of identity was unreasonable because (1) it required a lot of time that deputies needed for their other responsibilities, and (2) engag- ing in this exercise wouldn’t have confirmed identity with certainty for weeks or months. But now, running a fingerprint comparison requires less than a minute of work for a jail deputy, and its results can definitively prove that an arrestee is or is not the wanted per- son. As a result, refusing to perform such a comparison before sub- jecting an arrested person to days and nights in jail simply isn’t USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 82 of 89

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“just, right, or conscionable,”—i.e., “reasonable,”—and it doesn’t comply with the Fourth Amendment’s promise against “unreason- able” seizures. That changes the Fourth Amendment reasonableness calcu- lus considerably. Take this case, for instance. As a reminder, Sosa was arrested because he shared the same name, sex, and race as the wanted Sosa. But so did thousands of other people. And while, under our precedent, that satisfies probable cause for roadside-ar- rest purposes, it is certainly not the type of “safeguard . . . from rash and unreasonable interferences with privacy and from unfounded charges of crime,” Gerstein, 420 U.S. at 112, that the Fourth Amendment’s reasonableness standard anticipates when defini- tively exculpatory identity information is instantaneously available to jail deputies. Indeed, jailing the wrong person for three nights and days when it is now possible to instantaneously and easily de- termine that he is not wanted has to be pretty high up on the list of “unreasonable interferences with privacy and . . . unfounded charges of crime” that the Fourth Amendment protects against. Id.; see also Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018) (recognizing that the Fourth Amendment “seeks to secure ‘the pri- vacies of life’ against ‘arbitrary power’”) (citation omitted). Even setting aside the emotional stress of a three-day detention that re- sults from a misidentification, three days confined to a jail cell can inflict other serious consequences on a person. See Gerstein, 420 U.S. at 114 (noting that “pretrial confinement may imperil the USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 83 of 89

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[arrestee’s] job, interrupt his source of income, and impair his fam- ily relationships”). So if the Fourth Amendment’s reasonableness standard means anything, it cannot tolerate confining an innocent person to a jail cell for three nights and three days (based solely on the fact that he shares common characteristics without thousands of other men), when a ten-second fingerprint comparison could definitively reveal that the arrestee is not the wanted person. By any measure, that is outrageously unreasonable. And it is hard to see how legal process in the form of a valid warrant for some David Sosa—when thousands exist and Sosa matched only the wanted Sosa’s name, sex, and race—could satisfy the Fourth Amendment for purposes of continuing to detain Sosa for days after the jail deputies reason- ably could have confirmed that Sosa was not the wanted Sosa. Cf. Manuel v. City of Joliet, 137 S. Ct. 911, 919–20 (where judge de- tained plaintiff based on criminal complaint that was supported solely by arresting officer’s lies, holding that “[i]f the complaint is that a form of legal process resulted in pretrial detention unsup- ported by probable cause, then the right allegedly infringed lies in the Fourth Amendment”). Second and relatedly, the Fourth Amendment’s concept of probable cause inherently requires identity confirmation at the ear- liest reasonable time to support an ongoing seizure of a person— especially when the person is arrested in an emergency type of sit- uation. As I’ve noted, our precedent finds probable cause satisfied in a situation like Sosa’s roadside arrest. The Supreme Court has USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 84 of 89

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explained these types of seizures in part by pointing to roadside ar- rests of individuals like Timothy McVeigh and Joel Rifkin, see King, 569 U.S. at 450–51—in other words, the balance of law-enforce- ment and public-safety needs against individuals’ rights favors ar- rest in these circumstances. But once the arrested person is brought to jail, that more generalized standard of probable has served its purpose: it has de- tained the person long enough for the jail deputies to confirm his identity as a wanted person. And if we’re being candid, that type of roadside probable cause—where the arrested person matches only the wanted person’s name, sex, and race—isn’t really much of a basis for a reasonable belief that the arrested person is actually the wanted individual. So if the Fourth Amendment’s guarantee against “unreasonable” seizures has teeth, it requires reasonable identity confirmation before continued detention. Third, the Supreme Court has recognized that blind adher- ence to past practices can, in the face of new technology, defy con- stitutional guarantees under the Fourth Amendment. Consider cell phones, for example. In Riley v. California, 573 U.S. 373 (2014), the Supreme Court held that officers must obtain a search warrant to search a cell phone found on a person at the time of arrest. The Court reached this conclusion even though it continued to recog- nize an exception to the Fourth Amendment’s warrant require- ment for searches of other items found on an arrested person. See id at 391–92. And in Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court declined to apply the third-party USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 85 of 89

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doctrine of Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976), under the Fourth Amendment to authorize law enforcement’s warrantless obtaining of cell-site records from cell-service providers. 19 See also, e.g., Kyllo v. United States, 533 U.S. 27 (2001) (rejecting a “mechanical interpretation” of the Fourth Amendment to hold that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search because any other conclusion would leave homeowners “at the mercy of advancing technology”). The same is true here. Blindly allowing arrestees to be de- tained for days even though new technology allows a jail deputy to reasonably confirm in less than a minute that the detainee is not the wanted person violates the Fourth Amendment’s guarantee of security “against unreasonable . . . seizures.” U.S. Const. amend. IV. And fourth, historically, federal courts have recognized the importance of identity confirmation early in the criminal-justice process. In this respect, federal courts have treated identification confirmation of at least some type—limited as that ability has been on short notice in earlier times—as critical before a magistrate judge can order a person arrested on a valid warrant transferred to

19 Under the “third-party doctrine,” the government, without a warrant, can obtain items like bank records for a subject from a third-party witness like a bank. See Miller, 425 U.S. 435. “The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in infor- mation knowingly shared with another.” Carpenter, 138 S. Ct. at 2219. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 86 of 89

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another district. Rule 5, Fed. R. Crim. P. (and its earlier iterations in other rules like Rule 40(a), Fed. R. Crim. P. (2001)), requires magistrate judges to confirm “that the defendant [who appears be- fore her at an initial appearance] is the same person named in the indictment, information, or warrant” before she may transfer that person to the district where the charged offense was allegedly com- mitted. FED. R. CRIM. P. 5(c)(3)(D)(ii). This rule is based on years of judicial precedent predating it. See Rule 40, FED. R. CRIM. P. (2001), Advisory Committee Notes, 1944 Adoption (“The scope of a removal hearing, the issues to be considered, and other similar matters are governed by judicial decisions.”) (gathering cases). And it highlights the importance with which courts have long viewed early identification confirmation—even when identity-confirma- tion avenues were far more limited. It is also no answer to the continued unreasonable detention of an arrestee when a reasonable identity check would reveal his innocence that the detainee will, at some later point or points, ap- pear before a magistrate judge or other judicial official. That is so for two reasons. First, even without considering what might or might not happen in front of the judicial official, insisting that a misidentified person wait until at least her initial court appearance before even the possibility of release still requires the misidentified person to spend days and nights in jail before she gets to go to court. And for what purpose? Given the ease with which a jailer can confirm that the arrested person is not the wanted person, the continued seizure USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 87 of 89

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of the person for days and nights is simply unreasonable under the Fourth Amendment. Second, appearing before a judicial officer provides no guar- antee of release when a person has been misidentified and no one has confirmed his identity. And even when it results in release, that release is not immediate. After all, judicial officers don’t have the means in court to confirm a person’s identity. Rather, all they can do is instruct the government to have the person’s fingerprints compared to those of the wanted person. But the deputy cannot do so until after all arrestees have their court appearances and the deputy is able to return to the jail with the arrestees. It makes no sense (and isn’t reasonable) that a protesting detainee’s identity need not be confirmed until after a judicial officer orders a jailer to do what the jailer reasonably could and should do in the first in- stance. Cf. Malley v. Briggs, 475 U.S. 335, 345–46 (1986) (holding that a reasonably well-trained officer who would have known that his affidavit failed to establish probable cause and that he shouldn’t have applied for a warrant violates an arrestee’s Fourth Amend- ment right against unreasonable seizures and does not enjoy qual- ified immunity when he arrests someone based on the warrant he nonetheless procured from a judicial officer). Plus, sometimes, as in Sosa’s case (where his jailers in- structed him that he could not speak), detainees don’t know that they can speak at appearances. And even when they do, judicial officers who don’t know what the arrestee is going to say and who are trying to protect the arrestee’s Fifth Amendment rights often USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 88 of 89

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suggest that the arrestee not speak without conferring first with an attorney—which often, the arrestee will not have. Most people comply in court with what a judge suggests. Nor does bail solve the problem. Consider Sosa’s case. If a judicial officer thinks that a person has been on the run from crim- inal charges for 26 years and has moved to another state to avoid them, how likely is it that the judicial officer will deem bail a good idea? Plus, even when the court grants bail, it can be days before that happens and a detained person can post it—days in jail (and the potential expenditure of money to be able to post bail) that could have been prevented if the jail deputies ran a simple finger- print comparison. Ultimately, the Fourth Amendment promises protection “against unreasonable . . . seizures.” U.S. Const. amend. IV. And by any real-world standard, confining an innocent person to jail for days based on no more than that he shares the same name, sex, and race with thousands of others is an “unreasonable . . . seizure[],” id., when a ten-second fingerprint comparison could definitively show he is entitled to release. So I would join the Second and Third Circuits in concluding that the right to be free from continued de- tention once it was or should have been known that the detainee was entitled to release dwells within the Fourth Amendment’s shel- ter against “unreasonable . . . seizures.” See Russo, 479 F.3d at 209; Schneyder, 653 F.3d at 319–22, 330. USCA11 Case: 20-12781 Document: 63-1 Date Filed: 01/20/2023 Page: 89 of 89

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IV. Cannon and its progeny make this a very easy case: they require us to conclude that Sanchez and the other jail deputies vio- lated Sosa’s clearly established substantive-due-process right to be free from continued detention when they knew or should have known that he was entitled to release. But even in the absence of our binding precedent, the Fourth Amendment cannot tolerate de- tention for days when jail deputies have the means available to de- finitively and easily determine that the person in custody is not the wanted person. Any other conclusion reads the Fourth Amend- ment’s prohibition on “unreasonable” seizures out of the Constitu- tion. I respectfully dissent.