We Need A Takings Jurisprudence For All Constitutional Rights

In the extremely conservative 11th Circuit, neither the individual law enforcement officers involved nor the government has any liability in this fact pattern:

Sosa has lived in Martin County, Florida, since 2014. 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 traffic 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 warrant issued out of Harris County, Texas, for a “David Sosa” in connection 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, anyway, 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 fingerprinted Sosa and determined that he was not the wanted Sosa. So roughly three hours after Sosa was initially detained, he was released. 

Three-and-a-half years passed. Then, the same thing happened again—only this time, Sosa was not lucky enough to be released 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 number, 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] different 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 follow up on the matter. 

But Sosa spent the remainder of April 20 in jail. 

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 fingerprinted 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.

In a system based on the jurisprudence of 5th Amendment takings, the government whose law enforcement officers arrested Sosa would have liability to Sosa because he was deprived of his liberty and incurred funds to retrieve his truck from impoundment when he was an innocent man and gave the authorities every opportunity to confirm that fact immediately.

But, the law instead imposes liability not on the entity in most cases, but only on its employees, and only in cases where they intentionally violate a well-established constitutional right. So, if the system is broken that that means that someone is deprived of liberty without deserving it, they have no remedy. 

Even if their constitutional rights are intentionally violated, as a result of the court created doctrine of qualified immunity, the victim of this conduct has no remedy unless previous controlling case law had held in a factually similar case that the constitution doesn't permit this conduct. And, since qualified immunity can be invoked before the question of whether a constitutional right have been violated or not comes up, the system intrinsically prevents the scope of constitutional rights of developing naturally in the case law.

This rule of law is unjust and fails to adequately protect the people who most deserve the constitution's protections. It is very doubtful that the Founders would have approved of this approach had they foreseen it.

The dissent argues that even under existing law, Sosa is entitled to relief, stating (emphasis mine, citations omitted):

[T]he factual allegations 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.”

As I explain below, Sosa’s complaint does both.

But, the hurdle was too high in the first place. It should be sufficient to show that Sosa was not the individual wanted in the warrant and that he was detained and forced to incur monetary charges. This ought to entitle him to full compensatory damages and an apology.

This strict liability standard might be high to impose personal liability upon law enforcement officers, but it shouldn't be to high to impose upon the government directing those officers and establishing the systems that led to his wrongful detention.