The characterization of the amicus brief was both pointedly humorous and not funny at all.

Brief of Amici Curiae David Sosa, David Sosa, David Sosa, David Sosa, & the Institute For Justice in Support of Petitioner David Sosa

The last David Sosa was the poor guy who was twice arrested in Martin County, Florida, because of an arrest warrant out of Texas for another David Sosa and, the second time, held for three days despite having no indicators that he was the same person except for the name. He was finally released, for the second time, after prints came back showing that he was a different David Sosa. The other David Sosas?

Worse, Sosa’s experience suggests that all the other innocent Americans named David Sosa have cause to worry that they could be victims of the same confusion. The David Sosa wanted in Texas, I.J. notes, is “not the David Sosa who chairs the philosophy department at the University of Texas. Nor is it the New York-based songwriter David Sosa. It’s also not the David Sosa who’s a cardiologist in Albuquerque, the one who works at the USDA, the law student at University of Miami, or the David Sosa who owns a construction company in Winston-Salem.” All told, I.J. identified “at least 924” David Sosas in the United States, and “only one of them is suspected of selling crack cocaine in Harris County, Texas, back in the 1990s.”

How many Scott Greenfields are there? How many other people share your name, or the name of one of your children? How confident are you that none of them have been accused of committing a crime and have an outstanding arrest warrant for them? How willing are you to have your child spend three days in jail despite every indication that he’s not the wanted person “just in case”? What would you do if it happened to you?

According to the 11th Circuit, none of those other David Sosas would have a constitutional claim if he were arrested and detained based on nothing more than his name. I.J. argues that the appeals court “ignored the Petitioner’s Fourth Amendment rights based on a misstatement of law in one of this Court’s decisions that has been abrogated but never expressly overruled.” In Baker, it says, the Supreme Court “concluded erroneously that the Fourth Amendment has nothing to say about an ongoing seizure so long as police relied initially on a facially valid arrest warrant.” That conclusion, the brief says, “is contrary to this Court’s current jurisprudence and is no longer good law.”

The original Eleventh Circuit panel held that Sosa’s mistaken arrest was not a Fourth Amendment violation, although his detention beyond the time necessary to realize he was the wrong Sosa established a Fourteenth Amendment claim for his arbitrary detention.

Despite this comedy-cum-tragedy of easily detected and corrected errors, a three-judge 11th Circuit panel concluded in 2021 that even Sosa’s second arrest (the more egregious of the two incidents) was reasonable under the Fourth Amendment. “When a valid warrant underlies an arrest, but law-enforcement officers mistakenly arrest the wrong person because of a misidentification, a ‘reasonable mistake’ standard governs the constitutionality of the arrest,” it said. Applying that standard to the deputy who arrested Sosa the second time around, the judges concluded that the differences Sosa noted between himself and the suspected drug dealer “were not material, viewed in the totality of the circumstances.”

The holding that three days was too long was reversed by a later en banc decision, protecting not only the virtue of police ignorance and incompetence at the outset from challenge, but its continuation after even the most incompetent cop should have known better.

The en banc 11th Circuit opinion issued in January rejected that conclusion, saying it was foreclosed by Baker v. McCollan, a 1979 case in which 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.'”

In its amicus brief, Institute for Justice argues that both the initial arrest of the innocent David Sosa as well as the continued detention beyond the time necessary for any modestly sentient cop to figure out he had the wrong guy violated David Sosa’s constitutional rights. In Baker v. McCollan, Justice Rehnquist glibly wrote:

Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim.

There’s a huge gap between “error free,” particularly given the bizarre facts of Baker, and outrageously incompetent, if not recklessly malicious. And as Jacob Sullum makes manifest in other examples of innocent people held for having the wrong name, this is hardly just a David Sosa problem.

Jennifer Heath Box, a Texas tourist who was arrested in December after a cruise out of Port Everglades, Florida, was even less lucky. The ABC affiliate in Miami reports that she “spent three nights inside the Broward County Jail, including Christmas Day,” because Deputy Peter Peraza confused her with a Jennifer Heath who was facing felony child endangerment charges in Houston. The suspect would have been 26, and the charges involved a 1-year-old and a 3-year-old. “I’m 49 years old—huge age difference,” Heath Box told the TV station. “I don’t have children under the age of 5.”

When a deputy at the jail ran her driver’s license, Heath Box said, her record was clean, but that did not deter Peraza, who was sure he had the right woman. “The whole time I was like, ‘this is not happening,'” she said. “The strip search, the humiliation, the shackles, the prison uniform, being issued blankets.”

It might not happen to everyone. It might not happen every time. But if it does, and some cop decides based on his name or whether your behavior toward him was sufficiently obsequious, we could all be David Sosa and, according to the Eleventh Circuit, held for at least three days. They haven’t ruled on the fourth through 100th day yet, although Rehnquist’s Baker opinion suggests that until a jury says we’re innocent, police error is just the cost of doing business.