Criminal courts can do better in cases of mistaken arrest

Both the 9th U.S. Circuit Court of Appeals and California criminal courts can do better by persons mistakenly arrested on warrants meant for others.

Santiago Rivera, for example, had the misfortune of having the same first and last name, albeit a different middle name, and of being within 10 pounds of the description of the person identified on a warrant. It took only 30 days of jail time to sort it out, notwithstanding that Rivera had been previously jailed for nine days, 20 years earlier for exactly the same law enforcement mistake.

Rivera asked the federal court if this was not unreasonable under the constitutional clause that supposedly protects him from unreasonable seizure, and if this was not a deprivation of liberty under the clause that guarantees him due process.

Warrants, though, are like horseshoes and hand grenades, at least for purposes of civil lawsuits to enforce a right otherwise protected by the Fourth Amendment. If the warrant's description is close, then the court, as did the lower court and the majority in Rivera v. County of Los Angeles, 2014 DJDAR 3030, typically gives the officers executing the warrant the benefit of the doubt.

Even if the warrant is close and the Fourth Amendment is satisfied, eventually - eventually - the wrongly arrested will still need to be freed. Indeed, since Baker v. McCollan 443 U.S. 137 (1979), the Supreme Court has recognized that, "after the lapse of a certain amount of time," the loss of liberty caused by a mistaken incarceration gives rise to a due process claim under the 14th Amendment. In short, a detainee has a right to be freed after "it was or should have been known that the detainee was entitled to release."

In Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002), for example, the 9th Circuit upheld a judgment in favor of a man detained for 12 days on a warrant intended for his twin brother, notwithstanding their different first names and a 66-pound discrepancy between the detainee and the description in the warrant.

Rivera, however, did not reap the benefit of that holding. According to the Rivera majority, Fairley is "readily distinguishable" in that it was Fairley's first, not middle name that was different, and there was merely a 10-pound discrepancy between Rivera and the warrant's description. Moreover, in Fairley, the subject had been denied access to the courts, held for 12 days without a hearing or court appearance. Or so the Rivera majority explained Fairley's holding.

Rivera's attorneys are, ahem, fairly sure that the panel misconstrued Fairley. It is not just that Fairley failed to expressly base its holding on Fairley being denied access to the courts. Nor is it merely because there is no mention even of Fairley being denied such access. Rather, it is because Rivera's attorneys, as it happened, also represented Fairley. They were present at the two court hearings Fairley attended while fighting for his release, hearings the Rivera majority asserts Fairley was denied.

Setting aside, then, the corrosive effect of a jurisprudence that plugs analytic holes with dubious facts, the casual assumption that mere access to courts always, ipso facto, satisfies due process is, itself, insidious. Hearings connote process. But sometimes they provide less than what's due.

One can, for example, fairly suspect that if someone is held for 30 days on a warrant intended for another, notwithstanding several court hearings, that the process must have been in some meaningful way broken. It was.

It was not that taxpayers had failed to fund the sophisticated database that provided ready law enforcement access to identifying information, such as Rivera's fingerprints, available from the last time he was improvidently arrested. It was, rather and notwithstanding Rivera's repeated protestations of his innocence, that no one walked to the terminal, typed in his name, and checked.

Before the state court, however, the prosecution explained that law enforcement needed to search through archives to unlock the previous exoneration eight years earlier. And the court, not understanding the available technology, believed it.

Now law enforcement certainly rolls hightech when motivated. Just look at their sophisticated use of DNA and wiretapping technology. And you should see the cockpits of the police and sheriff helicopters taking off from the heliport on Ramirez Street in Los Angeles.

In Rivera, however, they drove their horsedrawn wagon to the side of the county hill, where they pulled out a quill pen, inked a formal request on parchment, and submitted it to a yawning gnome guarding the cave. After his nap, said gnome lit his candle, and spelunked into archives.

Or those might as well have been the facts. Weeks later, law enforcement emerged with the critical information on a warrant arising from nonappearance at a hearing on a felony homicide, no less, information that could have been gleaned in a matter of minutes, if not seconds at a computer terminal.

In Rivera, law enforcement showed less motivation for getting the right man than a method actor being asked not to think. It is one reason why an effective constitutional tort remedy - a stick in the hands of a motivated victim - is necessary.

Not just for Rivera. In a similar case, Gant v. County of Los Angeles, 765 F.Supp.2d 1238 (C.D. Cal. 2011), Kelvin Grant was mistakenly arrested five times before the state court judge dismissed the underlying criminal complaint.

Whether the analysis is reasonableness under the Fourth Amendment, or "should have known" under the 14th, although the applicable law may be black and white, we live in a world of flat screens, high definition and - you guessed it - color. Whether the law's origin is 1789 or 1868, the injustice under evaluation is happening now. And there is no highminded, originalist justification for depriving Rivera of an effective remedy. Nor does giving him a remedy open the proverbial litigation "floodgates."

More, then, than merely getting the law right, judges can subvert the casual and hidden incompetence which leads to unfairness simply by asking what technologies and techniques are available and then ask why they aren't being employed. And the 9th Circuit can shoulder its share of responsibility for fixing dysfunction in the criminal justice system by granting Rivera's petition for review en banc.

The alternative is a system in which modern means of identification have already been paid for by taxpayers, but because they are not being used, someone can be erroneously arrested several times, before a frustrated judge ultimately dismisses the entire case, even as the warrant's true subject walks free.

It is not just Rivera who was imprisoned those 30 days. The bureaucrats holding the cell keys would have had to free their own minds, or at least been ordered to do their job by someone who had. It's not just Rivera's interest, then, that's at stake. It is our collective, enlightened interest in non-Orwellian liberty.