A 1971 Supreme Court Decision of Doubtful Vitality Thwarts § 1983 Liability for Mistaken-Identity Arrests and Stifles Development of Clear Constitutional Rules

Kafka would love qualified immunity.¹ Not only does current qualified immunity doctrine allow law enforcement officers to arrest and hold the wrong person—sometimes for an extended period—without liability, it also inhibits the development of constitutional doctrines that would prevent erroneous arrests and detentions in the future, because courts can dismiss civil damages claims on the basis of qualified immunity without even having to consider whether, for purposes of those future cases, such an arrest or detention is constitutionally permissible. Recent appellate decisions suggest that modern computer systems have made the problem of mistaken arrests and detentions based on records sent across state lines worse, even though it should now be much easier to quickly check photographs or fingerprints in another jurisdiction that could confirm or definitively refute the arrestee’s identity.

Over fifty years ago, police in Dallas, Texas arrested Linnie Carl McCollan on a warrant issued in Linnie’s name. The wanted person was really Linnie’s brother Leonard, who had skipped bail after presenting police with a doctored driver’s license bearing Linnie’s name and Leonard’s picture. Linnie remained in jail for several days until someone checked a photograph of the wanted man, who was Leonard. Linnie sued the county sheriff for continuing to hold him after the arrest. The Fifth Circuit held that Linnie had stated a constitutional claim: “the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name.” Baker v. McCollan, 443 U.S. 137, 146 (1979) (quoting McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978)). But the Supreme Court reversed, holding that while Linnie might have a state law tort claim, he had no claim under 42 U.S.C. § 1983 for a violation of a federal constitutional right. See id.

In the Baker majority’s view, the arrest on a warrant in Linnie’s own name (although really intended for Leonard) was valid and the question whether the person arrested had committed the crime precipitating the warrant was for a jury to resolve at trial, during which the lawfully arrested person could remain in custody. Id. at 146. Justice Blackmun concurred to flag the possibility that a mistaken detention might violate the constitution if it sufficiently shocked the conscience. Id. at 148-49. Justice Stevens dissented, joined by Justices Brennan and Marshall, concluding that the due process clause requires procedures “reasonably calculated to establish that a person being detained for the alleged commission of a crime was in fact the person believed to be guilty of the offense.” Id. at 150.

What distinguishes Baker from the recent mistaken identity cases was that the person arrested was in fact the person named in the warrant, and the cause of the mistaken identification was his brother’s appropriation of his identity, not an error or carelessness by the police. It made sense in Baker that the court assumed the validity of the arrest and focused on whether the officers should have done more to check whether the warrant actually matched the arrestee by checking a photograph or fingerprints. Indeed, the officers were not responsible for and had no authority to second-guess a duly issued warrant for the very person that they arrested. However, courts have treated Baker as an obstacle to claims that the police have violated the constitution by prolonging a wrongful detention, even when, as in several recent appellate decisions, the warrant was issued by authorities in another state for someone other than the person arrested who had the same or similar name.² In all the cases, officers in the jurisdiction making the arrest had reason to doubt that the person arrested was in fact the person named in the out-of-state warrant, but they did not immediately obtain confirmation that they had the right person while continuing to hold the wrong person in custody.

There is also a doctrinal obstacle to challenging the arrest, even when the warrant was issued—unlike in Baker—for someone other than the person arrested. In Hill v. California, 401 U.S. 797 (1971), the Court upheld a robbery conviction, rejecting the defendant Hill’s challenge to the admission of evidence seized from his apartment after the police arrested someone else at the apartment, suspecting he was Hill, and searched the premises. The mistakenly arrested person (Miller) was not before the Court, so the issue was whether Hill could suppress evidence seized from his own apartment because officers intending to arrest him arrested someone else by mistake. It was not at all obvious that there was a causal connection between the mistake and the search, since the search was of the apartment belonging to the person that the police intended to arrest. The Court found “no reason to disturb … the [lower court’s] conclusion that ‘[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.’” Id. at 802.³

The officers in Hill were acting on information provided by accomplices to the robbery, but they did not have a warrant to arrest Hill or to search his apartment. That makes Hill dubious authority for mistaken identity arrests. The Court acknowledged that the search of the apartment would not have been valid under Chimel v. California, 395 U.S. 752 (1969), which narrowed the areas of a home permissibly searched incident to a valid arrest, but declined to apply Chimel retroactively to a search conducted before that decision. Hill, 401 U.S. at 802. And a decade after Hill, the Supreme Court held that the Fourth Amendment prohibits “the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, 445 U.S. 573, 576 (1980). Consequently, under current law, neither the warrantless arrest of Miller nor the warrantless search of Hill’s apartment incident to Miller’s arrest would be constitutionally valid. Indeed, it is hard to read Hill independently of the Supreme Court’s efforts at the time to weaken the controversial effects of the exclusionary rule.

The essential logic of Hill is that “the police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill, that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to believe Hill had committed.” 401 U.S. at 804. But under Chimel and Payton, the search would have been doubly invalid, even if Miller had been Hill. So, it is hard to know whether to treat Hill as a holding about the constitutionality of arresting Miller.

But Hill bequeathed us the following cryptic passage: “The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.” 401 U.S. at 803-04. The objective reasonableness of arresting Miller was based on the facts that “the mailbox at the indicated address listed Hill as the occupant of the apartment. Upon gaining entry to the apartment, they were confronted with one who fit the description of Hill received from various sources. That person claimed he was Miller, not Hill. But aliases and false identifications are not uncommon. Moreover, there was a lock on the door and Miller’s explanation for his mode of entry was not convincing. He also denied knowledge of firearms in the apartment although a pistol and loaded ammunition clip were in plain view in the room.” Id.

If Hill survives as a holding about mistaken identity arrests, what it stands for is that probable cause to arrest requires an objectively “sufficient probability” that the arrestee committed a crime. In Hill that probability was sufficient based on the officers’ direct knowledge of the robbery; the information from accomplices providing Hill’s name, address, and description; Miller’s presence in Hill’s apartment and his likeness to the description of Hill; and Miller’s own suspicious behavior. If a judge today issued a warrant for Hill and a warrant to search Hill’s apartment, and the officers mistakenly arrested Miller under the same circumstances, Hill would then doom Miller’s section 1983 claim against the officers for arresting him.

Hill does seem to require a sufficient probability that the person arrested is the person identified in the warrant—and a matching name is not always sufficient, given that hundreds of people may have the same name as the person named in a warrant issued anywhere in the United States. But it stands as an obstacle to challenging arrests based on out-of-state warrants that come up in a computer check of the National Crime Information Center (NCIC) database, even when there are discrepancies between the NCIC data and the person arrested. In the Eleventh Circuit’s Sosa case, for example, “Sosa was arrested and detained by his hometown sheriff'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 markings. Just as he had the first go round, our Sosa naturally (and repeatedly) told the arresting officers that they had the wrong guy—but to no avail.” Sosa, 57 F.4th at 1304.

In the D.C. Circuit’s recent Vasquez case:

For over forty years, a man named Jose Vasquez has evaded prosecution in Will County, Illinois for murder. Hoping to detain and prosecute Jose Vasquez, Will County has entered two warrants into the National Crime Information Center (“NCIC”) database, which allows police departments across the country to access its warrants. One warrant charges Jose Vasquez as a fugitive from justice, and links to the second warrant (for murder), which underlies the fugitive from justice charge. Accordingly, if an officer stops the Jose Vasquez listed in the warrant, and has access to NCIC, they may detain him and contact Will County so that it can extradite.

Of course, whether another police department should detain a person based on the information provided by Will County presupposes that Will County’s NCIC entries are accurate. But for a long time, that was not the case. Indeed, from 2005 through 2013, the NCIC entry for one of the Will County warrants contained an egregious error: it named Jose Vasquez as the suspect, but the social security number and physical description described a different Jose Vasquez, a man who lives in Maryland and has never set foot in Will County, Illinois.

Unsurprisingly, Maryland police departments arrested and detained the wrong Jose Vasquez pursuant to the Will County warrant on a few occasions. So in 2013, Will County amended its erroneous NCIC entry to include a new instruction: “DO NOT DETAIN A VASQUEZ, JOSE [redacted birthday] [Social Security number redacted] THIS IS NOT SUSPECT. This amendment seemingly made clear that Maryland’s Jose Vasquez (the Plaintiff in this case) was not wanted in Will County.

Vasquez v. District of Columbia, No. 23-7050, slip op. at 3 (D.C. Cir. Aug. 9, 2024). Yet officers in the District of Columbia arrested the plaintiff twice even after Will County clarified the NCIC notice. After the first D.C. arrest,

MPD gave Mr. Vasquez a PDID number—a unique identifier that MPD gives to any person it arrests and detains. J.A. 556–57. This allows MPD officers to search detainees and review their past encounters with the Department. J.A. 555, J.A. 560–62. Thus, in Mr. Vasquez’s case, MPD now had a file containing his social security number, fingerprints, and information from this arrest, and eventual release from jail. MPD officers were also able to access the details surrounding Mr. Vasquez’s bond hearing through JUSTIS, a system created and maintained by the D.C. Superior Court.

Id. at 5. Even having that information did not prevent Secret Service police from arresting Vasquez again on the same warrant, and it did not prevent the D.C. Metropolitan Police from holding him despite the fact that their own records showed that Vasquez was not the person identified in the NCIC entry related to the ancient Illinois warrant.

In both Sosa and Vasquez, the local police records of the prior mistaken arrest surely made it objectively unreasonable for officers to rely solely on NCIC records of an out-of-state warrant to arrest them a second time, and even more unreasonable to hold them in custody on the basis of the NCIC record without checking fingerprints or photographs that would definitively answer the identity question. But officers have qualified immunity to suits for damages under § 1983, which requires a plaintiff to identify “clearly established” law declaring the conduct unconstitutional.⁴ The problem for a § 1983 plaintiff claiming mistaken arrest or detention is that Hill and Baker effectively make it impossible to do so—that is, to identify a “clearly established” law. Mistaken identity (even wildly mistaken) arrests will rarely, if ever, lead to suppression motions, and federal courts have no habeas corpus jurisdiction to review suppression issues in state cases. Moreover, the good faith exception to the exclusionary rule for warrants and the improbability that evidence would be traced to a prolonged detention rather than to the initial arrest means that mistaken identity arrests of people engaged in their own criminal activity are unlikely to lead to Fourth Amendment doctrines regulating reliance on NCIC hits. The only realistic way for such doctrines to develop is in civil suits for damages under section 1983. But qualified immunity doctrine leads to what might be called arrested development.⁵ Courts in those section 1983 cases can decide them based on the absence of pre-existing constitutional standards without ever addressing what the standards should be. Even conservative Fifth Circuit Judge Willett protested against the effect of qualified immunity on doctrinal development: “Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books.” Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J., concurring and dissenting). Future arrestees will end up in the same boat as Sosa or Vasquez, unable to point to a specific decision holding it unconstitutional to arrest and detain someone on an NCIC entry even if the description doesn’t match and even if the records of the officer’s own department show that the warrant was issued for someone else.⁶ Perhaps Sosa or Vasquez could have pointed to the repeated arrests as grounds for seeking injunctive relief, thereby avoiding qualified immunity and the need to point fingers at individual officers rather than that of the law enforcement agency. But neither one seems to have done so.

When the result of a legal doctrine is intolerable injustice, it is time to re-examine the doctrine rather than continue to tolerate the injustice.

¹ As Judge Newsom noted in his concurrence in Sosa v. Martin County, 57 F.4th 1297 (11th Cir. 2023): “On April 20, 2018, David Sosa must have felt like he had been dropped into a Kafka novel, for ‘without having done anything truly wrong, he was arrested.’” Id. at 1304 (quoting Franz Kafka, The Trial 3 (Breon Mitchell, trans., 1998)). See also D. Reiser, How many times can the same police department arrest you on a warrant that bears your name but is plainly not intended for you?, JDSupra (Feb. 6, 2023) (discussing Sosa).

² Hopefully, the Supreme Court has now resolved the debate about whether prolonging unjustified detention is a Fourteenth Amendment violation by incorporation of the Fourth Amendment or a direct due process violation. See Question Presented 2 in Pet., Sosa v. Martin County, No. 22-1145 (May 22, 2023). In Chiaverini v. City of Napoleon, S. Ct. No. 23-50 (June 20, 2024), the Court held, “[e]ven when a detention is justified at the outset, moreover, it may become unreasonably prolonged if the reason for it lapses. Rodriguez v. United States, 575 U. S., 348, 354-357. So if an invalid charge causes a detention to start or continue, then the Fourth Amendment is violated.”

³ It does not seem quite accurate to treat the undisturbed internal quotation from the California court as a holding of the Supreme Court, however. See Henry v. Essex County, No, 23-1987, slip op. at 12 (3d Cir. Aug. 29, 2024).

⁴ As Justice Sotomayor observed in a recent dissent from denial of certiorari, “Even when government officials violate the law, qualified immunity shields them from damages liability unless the ‘the violative nature of [the] particular conduct is clearly established.’ Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (internal quotation marks omitted). When taken too far, as in the mistaken arrest context, this requirement allows lower courts to split hairs in distinguishing facts or otherwise defining clearly established law at a low level of generality, which impairs the ability of constitutional torts to deter and remedy official misconduct.” Lombardo v. City of St. Louis, Missouri, 143 S. Ct. 2419, 2421 (2023).

⁵ The Third Circuit Henry case raises a variant. The opinion describes a warrant issued for a parole violation, but the arrest of Henry was not based on the warrant itself, but “[t]he Pennsylvania Board of Probation and Parole provided the Marshals with Henry’s address and photograph.” Henry at 12. The opinion does not explain how the parole board obtained that information or connected it to its parolee. The judicial probable cause determination in the warrant does not encompass a probable cause determination as to Henry, the New Jersey resident who was arrested.

⁶ In Vasquez, the Court relied on the plaintiff’s counsel’s oral-argument concession that “there is strangely a paucity of case law on this precise situation.” Slip op. at 9. It’s not so strange given the doctrinal impediments to reaching issues that would establish clear constitutional rules.