The persistence of overdetention—meaning continued detention after officers knew or should have known that the arrested person was entitled to release—poses major concerns about both the fundamental right against arbitrary detention and other unenumerated constitutional rights.  The U.S. Supreme Court’s 1979 decision in Baker v. McCollan established a vague constitutional protection against overdetention, but it left lower courts to answer many open questions about its parameters.

Although courts agree that the Constitution prohibits law enforcement from arbitrarily detaining indefinitely an arrested person who protests their legitimate release, the application of this protection has been inconsistent across federal courts of appeals.  This Note examines the present circuit split over both (1) the test for unconstitutional overdetention and (2) the constitutional source of the protection against overdetention.  This Note then advocates for courts, moving forward, to (1) adopt a totality of the circumstances test which would evaluate all the factors that contributed to the overdetention, and (2) continue to ground the right against overdetention in substantive due process rather than shifting to a Fourth Amendment framework.  This Note also analyzes the overlap between procedural and substantive due process and criticizes the shift toward the Fourth Amendment for the sake of avoiding controversies around substantive due process for overdetention claims.