Posted on 03/23/2004 9:17:18 AM PST by Technoman
WASHINGTON -- Do you have to tell the police your name? Depending on how the Supreme Court rules, the answer could be the difference between arrest and freedom.
The justices heard argument Monday in a first-of-its kind case that asks whether people can be punished for refusing to identify themselves.
The court took up the appeal of a Nevada cattle rancher who was arrested after he told a deputy he had done nothing wrong and didn't have to reveal his name or show an ID during an encounter on a rural road four years ago.
Larry "Dudley" Hiibel, 59, was prosecuted based on his silence and finds himself at the center of a privacy rights battle. "I would do it all over again," Hiibel, dressed in cowboy hat and boots, said outside the court. "That's one of our fundamental rights as American citizens, to remain silent."
The case will clarify police powers in the post-Sept. 11 era, determining whether officials can demand to see ID whenever they deem it necessary.
Nevada Senior Deputy Attorney General Conrad Hafen told justices that "identifying yourself is a neutral act" that helps police in their investigations and doesn't — by itself — incriminate anyone.
If that is allowed, several justices asked, what will be next? A fingerprint? Phone number? E-mail address? How about a national ID card?
At the heart of the case is an intersection of the Fourth Amendment, which protects people from unreasonable searches, and the Fifth Amendment right to remain silent. Hiibel claims both of those rights were violated.
Marc Rotenberg, president of the Electronic Privacy Information Center, said if Hiibel loses, the government will be free to use its extensive databases to keep tabs on people.
"A name is now no longer a simple identifier; it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual's life," Rotenberg told the court in a filing.
A private citizen is not required to respond, when not on federal land.
Now, according to federal case law, a member of the federal government is required to respond to any request for ID; does not matter if the request is made by another member of the government or by a private citizen. Federal law enforcement agents in particular, MUST properly provide ID when requested, and the MUST be able to cite the federal statutes which authorize them as an agent, which authorize them to carry weapons, and which authorize them with arrest powers. Few citizens are aware of that, most, because they've never seen it in the movies. While several crooks are plenty aware of it, and they try to use what little L.E.O. "training" that they have "encountered" in order to force astray, due process.
Technically speaking, a federal law enforcement agent cannot arrest you without his or her clear understanding that you know who they are and what their authority is; but again, the courts have given officers the benefit of the doubt, and in almost all cases, all that federal agent has to do is mention their "name rank and serial no." so to speak, and then tap you on the shoulder, to which you may affect some reaction.
THAT reaction on your face, is all they have to provide as evidence to the federal magistrate.
At least, that's the way it used to be, before the hockey rules were warped for the benefit of lawyers and judges and their "ministry."
Prior to the present sad state of affairs, and contrary to the fantasies of socialist protesters, we used to play a clean game on ice, and thereby, we fulfilled our obligation to uphold the Constitution, in particular, its power and principles of enumeration: that government is limited.
That's the way it was, before the A.C.L.U. et al conjured up a new generation of people who have dismissed our history and what once worked.
There was once upon a time, an era of federal law enforcement agents, operating under very high standards.
The problem is not that "criminals have more rights." The problem is that lawyers have few worthy principles, in addition to holding the rule of law in disdain, because their is little financial profit in a legal system that actually works because the law is not slippery nor perforated with "wiggle room" nor the language of our laws, helplessly fluid to the point of being a game of Scrabble.
The law once stood for something, before lawyers rendered it meaning-less.
More than was afforded to citizens in Nazi Germany.
How do you track down illegals without first identifying a person.
It's clear that this is not the purpose of the ruling, and won't be used for this purpose (at least presently) anyway. So this is a red herring.
What is really reasonable? The can of worms you open may aid the criminal or enemy more than the police!
The same can be said of the Bill Of Rights - would you get rid of them too?
This was just sent to me (I haven't read it all yet), gives more detail. It is from The Slate, but I like this woman's writing.
supreme court dispatches
Hiibel Thumpers
The Supreme Court is suspicious.
By Dahlia Lithwick
Posted Monday, March 22, 2004, at 3:03 PM PT
The Supreme Court hears oral argument this morning in the "drunken cowboy" case, a privacy dispute that has the conspiracy nuts in a tailspin and me in trouble with my Civil Procedure professor. The issue in Hiibel v. Sixth Judicial District Court of Nevada is variously described by the amicus briefs and the editorialists as whether the police have the right to demand your "papers"; mandate national identity cards; and impede ordinary citizens' freedom to roam free. But as the justices on the Supreme Court weigh in today, it's clear most of them don't see the case this way. One after another dismisses the national ID card debate as not at issue here. One after another suggests
—and to a rather frightening degree, at times—that this case has nothing to do with innocent people, or ordinary people. This case has to do with "suspicious" people, and—as you were no doubt aware—suspicious people are not like you or me.Cowboy Dudley Hiibel is challenging a Nevada statute, NRS 171.123 (3), which says the police can require someone detained pursuant to a so-called "Terry stop" to identify themselves. The Terry stop—cooked up in a 1968 case, Terry v. Ohio—carved out an exception to the old Fourth Amendment requirement that people can't be searched and seized absent "probable cause" to believe they'd committed a crime. If "probable cause" signified the level of police commitment necessary for a meaningful relationship with a criminal defendant, Terry authorized the one-night-stand, giving cops the right to initiate quickie detentions—including a brief, unerotic frisk—of folks who are sort of suspicious but not suspicious enough to justify an arrest. Several concurring opinions in Terry said that cops could ask questions during these brief encounters, but suspects had no obligation to answer. But in several cases over the years, the high court hasn't squarely addressed that the rule. The Nevada law, on the other hand, says the failure to provide your name during these stops is illegal. So, here we are.
Nevada police, responding to a report of a man beating a woman in a truck, saw what they believed to be that truck on the side of the road. Hiibel was leaning on the passenger side having a smoke. His teenage daughter was in the cab. Hiibel seemed drunk. It was all captured on video, so you can play along at home. The crucial bit is where Hiibel is asked 11 times to identify himself, and—not knowing why the cop is asking—he refuses. The cops arrested him and charged him for that refusal. Hiibel challenged the law as unconstitutional. The Nevada Supreme Court voted 4-3 that there is nothing unconstitutional about a law forcing suspects in a Terry stop to provide their name, in light of the pressing government need to identify bad guys and the minimal privacy intrusion in sharing your name. Hiibel appealed that decision.
The court has two grounds on which to declare the Nevada law unconstitutional—the Fourth Amendment's guarantee against unreasonable searches and seizures and the Fifth Amendment's guarantee against self-incrimination. Robert E. Dolan, Hiibel's public defender from Winnemucca, Nev., advances both. Justice Sandra Day O'Connor wants to know why this is different from any traffic stop—where the police have the right to demand your license. The answer is that Hiibel wasn't driving—he was outside the truck, and the notion of implied consent ("We let you drive cars/ride airplanes/cross borders in exchange for the right to demand your ID") is not at issue here. O'Connor (and the rest of America) wants to know if the fact that Hiibel was drunk counts for anything. Dolan argues that there was never a court finding that he was driving drunk.
Justice Antonin Scalia betrays his wholehearted suspicion of dangerously "suspicious" people with a question about the whole purpose of Terry stops: "Can't you stop someone suspicious, to see what's going on?" he asks. Dolan says policemen may ask, but no one has to answer. Chief Justice William H. Rehnquist asks if one has a similar right to refuse to be frisked by a policeman during a Terry stop (sort of an Antioch College rule for pat-downs). Dolan doesn't think so. Justice Anthony Kennedy then asks whether policemen have the right to demand the names of witnesses to, say, a fatal bank shooting. Dolan says no.
Justice Ruth Bader Ginsburg similarly points out that it's a bit odd that the police can run the vehicle's license plates but not ask your name. Rehnquist adds: "You can ask if he's the registered owner of the car, but you can't ask his name?" All this just shows how complicated this case is, simply because Hiibel was leaning on a car, as opposed to walking down the street. We keep dancing along the edges of implied consent—which makes for complicated hypotheticals.
Scalia says that a rule allowing folks to refuse to identify themselves "assumes no responsibility on the part of citizens." Revealing his own take on the fundamental badness of generally suspicious people, he adds, "I can't imagine any responsible citizen who would object to giving his name." Scalia just hasn't spent enough time in Winnemucca, is all.
Ginsburg and Dolan exhibit confusion about whether Hiibel's daughter was in the passenger or driver's side of the truck. The Nevada Supreme Court indicated she was on the passenger side, suggesting that the drunk guy was driving. But Dolan insists she was driving and "slid over." Scalia then expresses amazement that a cop performing a Terry stop would have to "turn on his heel" and walk away if a suspect said, "I ain't talking," even if he was "hanging around a jewelry store at 2 a.m." Dolan helpfully suggests, "Maybe he was purchasing jewelry for his paramour and doesn't want his wife to know." Scalia shoots back that this is "possible but not probable." Heh heh.
Kennedy circles back to the Fifth Amendment claim, saying the rule should be that offering up one's name is not self-incriminatory because it's "not probing memory or perception," it's "just a fact."
The chief justice then wonders what happens when the police walk onto a murder scene, find eight or nine people there, and a body on the floor. "Can he ask for names?" asks Rehnquist. He can ask, but there is no obligation to respond. "How can the police ever solve a murder case?" he asks. Scalia again raises the Fifth Amendment. "Only guilty people have the right not to answer," he says. "Is it only the person beating the woman in the truck who has a right not to give his name?" he asks. And Justice David Souter jumps in: "If I was walking down the street and a cop turned and said 'Who are you?' would I have a Fifth Amendment right to refuse?" Dolan says he could refuse if there is a criminal punishment attached to the refusal.
Kennedy points out that this logic is "just circular." Then he asks whether people have some privacy interest in their name alone. Dolan says yes. "But your privacy is diminished if you are a witness to a crime," says Kennedy. "This is not the same as state demanding names from everyone." Again reinforcing today's theme: Suspicious people (including those who hang out near corpses) have fewer rights, just because they are so darned suspicious.
Conrad Hafen is the senior deputy attorney general from Nevada, and he has 20 minutes to defend the statute. He argues that providing one's name is a neutral, non-incriminating act. He and Justice Kennedy try to sort out the precedential value of California v. Byers, a 1971 case finding it constitutionally permissible to make drivers involved in accidents give up their names and addresses. Byers had no clear majority opinion on this issue, so it's not clear how much weight the court should accord it.
Ginsburg wants Hafen to explain what other facts about oneself are so "neutral" that the state might also demand them. Telephone numbers? E-mail addresses? She adds that it's not clear to her how being given the suspect's name (and taking the time to enter it into a computer and wait around for an answer) protects the safety of a police officer.
Stevens again worries whether doing that computer search and turning up the information that your suspect is a "bad guy" is enough to convert "reasonable suspicion" for a Terry stop into probable cause for an arrest. Hafen says not in and of itself. But Stevens is unpersuaded, so Scalia offers a scenario under which one's name might be sufficient to lead to his arrest: if the officer learns that "he's robbed the same jewelry store [that he is now casing] 10 previous times. That would elevate it to probable cause," he chortles.
Justice Stephen Breyer views the clutch of Supreme Court dicta (non-binding commentary) saying that you can't demand someone answer questions during a Terry stop as fairly weighty. He prefers this simple rule: "You can ask, and he can say no." He concedes that a name alone doesn't normally incriminate a person, "unless his name is Killer McGee."
Again, the justices try to sort out whether they should decide this on Fourth Amendment grounds or Fifth Amendment grounds. They seem to agree that the latter is the tougher one.
Finally, Sri Srinivasan has 10 minutes to defend the Nevada law on behalf of the United States government. He and Stevens do a little waltz over whether cops should ask for your name before or after patting you down. See, it really is just like a constitutional one-night-stand. And in a brief rebuttal, Dolan does some eleventh-hour privacy-nut stuff: warning about how giving up your name is "the key to unlock data that is endless, given modern technology." He adds that privacy will become some nice historical principle but no longer the right of every citizen. This is the kind of talk that gets them wailing over at the ACLU. But the court is mainly unmoved. "If you have reasonable suspicion that someone is committing a crime," says O'Connor, "why not let them check their computer records?"
We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves—unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward—to use Scalia's formulation—and cooperate. This idea that the "suspicious people" (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police's historical treatment of them. It's a shame Justice Clarence Thomas doesn't speak today. One can imagine that he has at least some idea of what it means to hold "suspicious" people to a different constitutional standard.
Dahlia Lithwick is a Slate senior editor.
" WAR IS PEACE
FREEDOM IS SLAVERY
DIVERSITY IS STRENGTH"
Demanding to see one's identity papers smacks of a totalitarian society, does it not?
I'd say that a lack of free elections and a solitary leader smacks of a totalitarian society.
Are we closer to a society where people are stopped constantly and asked for identification papers, or are we closer to a society where criminals run rampant curtailing the liberties of ordinary citizens to be secure in their own persons and possessions? Me, I'd say we're a lot closer to the later of the two.
In the case we're discussing, the officer had every reason to believe that Hibbel was a suspect in a reported crime. I don't see anything wrong with under those circumstances having a police officer request for ID. That really doesn't seem like an unreasonable request.
Now, as I said before, retinal scans at street lights, embedded ID chips, yeah, obviously that is (agreed, I'm sure). The question is, where is the line, what is reasonable?
Owl_Eagle
" WAR IS PEACE
FREEDOM IS SLAVERY
DIVERSITY IS STRENGTH"
But, if a person's name is a mere "fact" without value (the argument the state is making), why does the officer need it at all?
Just working out the legalese here; the cops get a report of a murder, they don't get a report that John Smith murdered someone (usually). The name is nothing but an entree to further and deeper search.
Why would a cop responding to this Hiibel case need his name? Was it reported that Mr. Hiibel himself was a perpetrator? No. It seems to me that a cop should be able to determine if a crime has occurred before he starts taking names, don't you?
The name is nothing but an entree to further and deeper search.
It seems to me that a cop should be able to determine if a crime has occurred before he starts taking names, don't you?
That's a good point. It seems like it would be valuable for the Police officer to have a name for the investigation (although that's not exactly a Constitutional Litmus test). In most cases an investigation might be on going and having the name might be useful in locating this person later.
Eitherway, I/we may be wandering away from the Constitutionality of the issue.
I guess I'm looking at it more from the 4th Amendment standpoint. In the article I posted above from Slate the Supremes looked at it from both a 4th and a 5th standpoint.
I wish I had more time to wrap my head around this conundrum today, but I'm most inclined to say it's a 4th Amendment Issue and that it doesn't constitute unreasonable search and seizure so long as the officer has some reason to believe a crime has occurred. (I can't get into an exact definition of what "some reason" is at the moment.)
Owl_Eagle
" WAR IS PEACE
FREEDOM IS SLAVERY
DIVERSITY IS STRENGTH"
I don't think they should be illegal to wear in public.
I believe some state anti-KKK laws make it a crime to go abroad in a mask.
That's the case here in Florida. I still don't agree with it.
The solution to illegal immigration, and I do agree that it is a serious problem, isn't to demand that citizen be legally required to present their "Papers please!" on demand to any cop anywhere on public property.
There are hundreds of opportunities for LE to weed out illegals, but none are being taken, or taken seriously. We could start with demanding proof of citizenship for getting driver's licenses, but many states are going the opposite way, explicitly allowing licenses for illegals. Jobs, getting medical care, picking up prescription drugs, buying or using plane tickets, enrolling at government schools, welfare offices, Socialist Insecurity offices, cashing food stamps at grocery stores, buying tobacco, liquor and guns ... these are examples of federally regulated activities that could easily be modified to require proof of citizenship. Standing on a street corner should not be one of these cases, where proof of citizenship is mandated.
Detention (without criminality) until the target capitulates, and no criminal charge if the target does not capitulate. That is reasonable.
Criminal charges for refusing to capitulate is unreasonable. Public is protected (via detention and independent determination of ID), and target is protected by no risk of being branded a criminal for merely the refusal to ID.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.