Appellate Practice

Four David Sosas File Brief in Support of Fifth

Amici are David Sosas,” begins this brief that was recently filed in the U.S. Supreme Court. And that is true. More specifically, the brief was filed by David Sosa, David Sosa, David Sosa, and David Sosa, all of whom are supporting David Sosa’s petition for a writ of certiorari. See David Sosa v. Martin County, Florida, No. 22-1145 (petition filed May 22, 2023). Why do these David Sosas care what happened to the other David Sosa? Because if it happened to one David Sosa, they say, it could happen to any David Sosa.

This is, unfortunately, not a case in which a single individual named “David Sosa” is suing in multiple capacities. Here that wouldn’t be an example of autolitigation, because it wouldn’t involve a David Sosa trying to sue himself, but it would be worth going on about. Here, what we have is four different David Sosas—two from North Carolina and two others from California—who are supporting the petition of a fifth David Sosa, this one from Florida.

Florida David Sosa has been arrested—twice—after routine traffic stops when a search turned up a warrant for David Sosa’s arrest. But that warrant was issued almost 30 years ago for yet another David Sosa, who was wanted in Texas for allegedly dealing drugs. Florida David Sosa’s birthdate, height, weight, and social security number did not match those of Accused Texas Drug Dealer David Sosa, nor did Florida David Sosa have any tattoos matching the other guy’s. But police arrested him anyway. When this happened in 2014, Florida David Sosa was detained for three hours before officers confirmed his identity and released him. It happened again in 2018, and this time he was detained for three days.

Everyone agrees that Florida David Sosa is innocent. But the lower courts did not agree that any of this violated his Fourth (and 14th) Amendment rights, as he claimed in a lawsuit against the county and the officers involved. Those judges did not agree on the reasoning, however.

A majority of the 11th Circuit judges held, essentially, that as long as the arrest warrant was valid to begin with, a three-day detention can’t be unconstitutional. “The Constitution does not guarantee that innocent people will never be arrested,” they wrote, and based on earlier precedent they held that it also doesn’t guarantee those people the right to be let go in less than three days.

Concurring judges held, on the other hand, that there might be a due-process right against “overdetention,” but it didn’t matter here because under the doctrine of “qualified immunity,” a “reasonable police officer who read [the relevant] cases would not know for certain” that a three-day detention was illegal. These judges criticized that doctrine, as other widely revered legal scholars have also done. See, e.g., “Jury to Decide Whether Officers Have Qualified Immunity for Tasing a Guy in the Crotch” (Mar. 10, 2022) (and other examples cited therein).

A dissenting judge pointed out, however, that officers could have confirmed Florida David Sosa’s identity in “less than a minute,” had they bothered to do so, and that there is no reason to think the Constitution or precedent means three days is a “magic number.” But that was the dissenting view. Florida David Sosa is now asking the U.S. Supreme Court to address the issue.

Represented by the Institute for Justice, four other David Sosas—for obvious reasons, not including Accused Texas Drug Dealer David Sosa, for whom police are evidently still looking—filed an amici curiae brief in support of their Florida namesake. “As David Sosas,” the brief explains, “they’re interested in this case because the ruling below puts them at risk of a lawless three-day detention whenever they’re in Florida, Georgia, or Alabama” (which contain the federal districts covered by the 11th Circuit). Indeed, the Institute argued, its four David Sosa clients “have more in common with each other than Petitioner [Florida] David Sosta had in common with [Accused Texas Drug Dealer] David Sosa,” and so all are subject to the same risk as the Florida guy. Hence their brief in support.

The brief also points out that these are by no means the only David Sosas at risk. According to LexisNexis, it says, there are at least 924 David Sosas in the United States. “Only one of them is suspected of selling crack cocaine in Harris County, Texas, back in the 1990s,” the brief notes. “Yet every David Sosa now faces up to three days in jail without any recourse … anytime police in Florida, Georgia, or Alabama run a warrant check,”—assuming a David Sosa is foolish enough to live in or visit one of those states under the circumstances.

Offering an even better example, the brief notes that there are “well over 17,000 people named John Roberts in this country. Odds are that at least one of them has an outstanding warrant, and that it won’t be the one who police pull over.” Coincidentally, one of these 17,000 John Robertses is currently Chief Justice of the United States. Odds are he won’t be the one spending three days in jail on a warrant for a different and crack-dealing John Roberts, but another member of this cohort very well might.

On behalf of all David Sosas, therefore, as well as the rest of us, the brief argues (quite well, I think), that the Supreme Court should take the case, reject the “three-day rule,” and while they’re at it should take another look at this qualified-immunity doctrine. For that reason, it concludes, “[t]his Court should grant the other David Sosa’s petition for certiorari.”