Will the Real David Sosa Please Stand Up?

Will the Real David Sosa Please Stand Up? 1

In the coming weeks, the US Supreme Court will decide whether to hear a pending case that includes an amicus brief filed by David Sosas. Plural. The David Sosas who signed the brief include “David Sosa, age 32, from Iredell County, North Carolina; David Sosa, age 51, from Mecklenburg, North Carolina; David Sosa, age 32, from Los Angeles, California; and David Sosa, age 50, also from Los Angeles, California.” They are among several thousands of David Sosas living in the US.

The problem is that Martin County, Florida, law enforcement can’t seem to tell these David Sosas apart, and they arrested and wrongfully detained the wrong David Sosa for an open warrant belonging to a different David Sosa. Twice.

The David Sosa named in the case was stopped in 2014 by Martin County police for a traffic violation. The officer ran his name through an electronic warrant database and uncovered a hit for an open 1992 warrant in Harris County, Texas, related to a crack cocaine conviction. David Sosa pointed out that the David Sosa in the database had a different date of birth, height, weight, and tattoo. He was arrested anyway, but three hours later was released after fingerprinting revealed the mismatch.

In 2018 it happened again, but this time (the same) David Sosa was prepared. He explained to the officer that a warrant for a person with the same name had caused a wrongful arrest years earlier in the same county. He was arrested again, and this time held in jail for three days before the mistake was acknowledged. David Sosa sued the police officers for Constitutional violations, including overdetention and false arrest, and he appealed after his case was dismissed.

After a series of losses, David Sosa is bringing his case to the Supreme Court. Why hadn’t the officers updated their records after the 2014 mistake? Was David Sosa at constant risk for being thrown in jail because he shared a name with a wanted drug trafficker residing in Texas in the early 1990s? And in the age of enormous new capabilities for managing and sharing data, why are such mistakes even occurring?

Warrant problems have probably existed since police began maintaining warrants. In 1967 the FBI launched the National Crime Information Center (NCIC) to share warrant information across fragmented systems maintained independently by the thousands of police departments in the US. Fifty years later, the system was handling 14 million transactions a day. But as early as the 1980s, analysts warned of errors in the data that could cause significant due process issues. One study noted that, even then, expanding access to other jurisdictions’ warrants would do little to improve data quality; as “computerized information [is] not necessarily more accurate than manual file systems, and because computer databases increase accessibility, the effect of inaccuracies is magnified.”

The issue has come before the Supreme Court before. The appellate court in David Sosa’s latest ruling based its decision on a 1979 Supreme Court case where a man used his brother’s name in an arrest, resulting in a warrant being issued against the wrong man. It took three days of jail time before the mistake was sorted out, creating a rather arbitrary 72-hour benchmark for the time it takes for a Constitutional violation to trigger in some jurisdictions.

In 1994, Justice John Paul Stevens wrote in a dissent about the fundamental “offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer database.” And Justice Ginsburg voiced her concern about warrant databases in 2009 in a dissent for another mistaken warrant case. She warned that “electronic databases form the nervous system of contemporary criminal justice operations,” whose “breadth and influence have dramatically expanded.” But “risk of error stemming from these databases is not slim,” because “law enforcement databases are insufficiently monitored and often out of date.”

In all three of these earlier SCOTUS decisions, law enforcement won. Mistakes happen, reasoned the majority, and the officers did the best they could with the information they had at the time. And even if it takes the officers some time to sort out a mistake, three days in jail isn’t enough to violate someone’s rights. But advances in technology should prevent such basic mistakes, or at least expedite their resolution.

David Sosa’s case illustrates another problem of so-called big-data policing; a glossy name that obscures undeveloped and disorganized data systems. Private technology companies now offer cloud-based warrant management solutions, marketed as solutions to outdated database systems and the clunkiness of the NCIC. But new technological solutions still rely on data created by frontline police officers and court clerks, which is widely known to be “riddled with errors.” Some of these systems simply increase data sharing, with little regard for internal accuracy or externally valid uses.

What’s more, even perfect technology cannot control how officers use information in the field—discretion will dictate how long an officer is willing or able to take to confirm the identity of a person against a warrant database, or whether they will bring that person to jail on a Friday afternoon, facing the prospect of further days in jail before a judge can see the case. The potential for wrongful warrants might also increase with new technology, as search warrants are issued for digital data trails and facial recognition tools are used to issue warrants based on little more than digitally rendered suspicion, leaving the innocent wrongfully accused by an algorithm.

Warrants generally suffer from two types of error: a validly created warrant attributed to the wrong person (such as in David Sosa’s case), or an invalidly maintained warrant attributed to the correct person (such as in the 2009 Supreme Court case of Bernie Herring).

Herring was wrongfully arrested for a warrant that had been vacated by the courts but not updated in the database accessed by the officers he encountered. After he was wrongfully arrested, he was searched and an illegal gun was recovered. Typically, a gun recovered through a wrongful arrest would be tossed out of court. In legal terms, any evidence obtained as the “fruit of the poisonous tree” is subject to the “exclusionary rule,” which makes illegally obtained evidence inadmissible.

But the Herring case expanded the “good faith” exception to the exclusionary rule when the court ruled that, even though the agencies tasked with keeping an accurate warrant database were negligent in their data management, the police officer on the scene relied on the incorrect warrant in good faith. An earlier case had ruled that the exclusionary rule does not apply to mistakes made by the judicial officers who maintain the warrant databases regularly used by police officers making stops. This means there’s no one to blame for bad data. But databases are created by workers, and in many other contexts—even within government—a worker would be held responsible for their mistakes.

Obstacles to holding police officers responsible for warrant mistakes goes even further than the good-faith exception. In Sosa’s pending case of a valid warrant enforced against the wrong person, the police officers are seeking protection from lawsuits based on the doctrine of qualified immunity. Because they are state officials, police argue they are immune to lawsuits filed by those who are wrongfully stopped, arrested, searched, and incarcerated due to a faulty warrant. This remains true even as qualified immunity is attacked as a legal doctrine, and it has led Justice Sonia Sotomayor to remark that the rule allows police to “shoot first and think later.” And as David Sosa argues in his petition, it turns “a blind eye to developments in technology and police work.”

David Sosa and his lawyers are, understandably, worried. His petition to the Supreme Court reads: “Police could arrest Sosa a third, fourth, or fifth time. They could, indeed, arrest him each week if they wanted to—so long as there is a single outstanding warrant for a David Sosa.”

And there are a lot of David Sosas at risk. Court filings detail some of them: David Sosa who is a philosophy professor at the University of Texas at Austin and starred in the movie Waking Life as himself. San Francisco-based David Sosa who testifies in courts as an expert witness in finance. The Bronx lawyer David Sosa, or David Sosa who is a supervisor in the US Department of Agriculture. Dr. David Sosa who practices internal medicine in La Crosse, Wisconsin. Surrealist artist David Sosa. One of over 800 David Sosas on LinkedIn alone.

Other industries, like the commercial background-checking industry, have struggled with identity verification for years. A key argument made by these sectors is to stop relying on name-based matching techniques—the very technique used by the officers who stopped David Sosa. 

Other industries, like the commercial background-checking industry, have struggled with identity verification for years. Analysts from the Consumer Financial Protection Bureau argue that name-based matching—the very technique used by the officers who stopped David Sosa—create too many errors. This is not only because it’s bad data management, but because name-based matching disproportionately harms Hispanic, Black, and Asian individuals, due to less surname diversity in those populations than among the non-Hispanic white population. These data issues only compound the stark racial disparities in bench warrant enforcement.

There has been some recent public discussion of warrant reform, particularly in the wake of the Justice Department’s Ferguson investigation and the horrific consequences of no-knock warrants that caused Breonna Taylor’s death at the hands of police. Much of this discussion rightfully urges judges to stop issuing warrants for low-level infractions, such as missing a court date or a fine payment. Other recommendations provide guidelines for auditing and purging old warrants maintained in databases.

But as police have continued to deploy new technologies at a rapid pace, we must apply more stringent responsibilities for how these technologies are used. Warrant databases and warrant data-sharing platforms might seem somewhat rudimentary when compared to facial recognition software and automated license plate readers, but the reach of warrants is substantial. A 2018 analysis yielded at least 5.7 million outstanding warrants across 27 states. New York City alone had around 1.6 million open warrants in the same year, and approximately 810,000 were over a decade old.

Open warrants create a shadow over people who may not know whether an old warrant has been cleared, even if it were issued for a minor infraction from decades ago. The sheer volume of open warrants creates a Kafkaesque web of suspicion over people who share common names, regardless of jurisdiction or availability of complete information. It is time to hold local governments responsible for maintaining better data, particularly if bad data causes a person to spend days in jail, separated from their family and children, and at risk of losing employment and housing. If technology can’t solve the problem, the risk of litigation just might.