The story in Hiibel was as follows: The sheriff of Humboldt County, Nevada, received a report that a man had assaulted a woman in a truck. When the deputy found the truck, there was a man smoking near the truck and a woman inside. The deputy informed the man of the suspicion and asked (repeatedly) for his ID, which the man (repeatedly) refused to provide. The conversation escalated and the deputy arrested the man.
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| States with "stop and identify" laws. Courtesy of Wikipedia. |
Nevada, like several other states (see map to the left), has a "stop and identify" law, which allows the police to detain any person and ask for his/her identification. Refusal to provide identification is grounds for arrest.
In Hiibel, a 5:4 majority found that these laws were not unconstitutional; they were not a violation of the Fifth Amendment privilege against self incrimination, as they are limited to disclosing the person's name, and using them as grounds of arrest did not constitute an unreasonable seizure. This is important not only because it allows to arrest the person who is not providing identification, but also because the arrest can open the door to a search of the arrestee's immediate area, including (sometimes) his or her car, and the evidence then is admissible in court.
California, as noted in the map, does not have a "stop and identify" rule. Which is why actress Danielle Watts, of Django Unchained fame, was entirely within her rights when she refused to provide the police her identification.
The couple learned from officers that someone at a nearby office building had called in the report. Watts had just gotten out of an interview at CBS Studios’ Radford lot and was sitting in the Mercedes-Benz on her boyfriend’s lap.
“The citizen who called the police to complain told the 911 operator that a male and a female were involved in indecent exposure inside a Silver Mercedes with the vehicle door open,” the statement alleged.
When officers arrived, police said they located two people who matched the description of the subjects.
“So, I said, ‘Well, making out is not illegal,'” Lucas said. “And the cop was like, ‘Yeah, I know, but they’re being distracted.’ Well, it’s not really our problem that we’re showing public affection, but we stopped.”
“We stopped,” Watts said.
Lucas said he gave the officers his identification when asked, but Watts refused.
“I knew that the clearest thing for me to do was to own my right as a free person and say I haven’t done anything wrong and I know I’m not required to give you my ID,” she said.
Watts walked away and another officer down the street put her in handcuffs and into the back of a patrol car, according to Lucas. Once police identified Watts, Lucas says they let them go.
Watts is black and Lucas is white. They report that the questions they were asked communicated fairly clearly that the officers thought they were a prostitute and a client.
This very disturbing incident raises a few important issues. First, the police is clearly out of line by arresting someone who violates a law that does not exist in California. They would have to have had probable cause that Watts had committed another offense--not the refusal to identify herself--to arrest her. Which begs the question, what part of a report that two people are making out in a car gives rise, necessarily, to prostitution?
It's hard to escape the suspicion that Watts' and Lucas' races played a part in generating the officers' suspicion. As an aside, the interrogation itself should have given them pause. The couple explained that they were together and had done no wrong; Lucas, who presumably would be ashamed to show his ID as a john caught in the act, complied immediately. The officers must have come, from a combination of the report and of what they saw on the scene, to an entirely wrong conclusion, because of implicit bias and impermissible assumptions.
But let's assume, for a minute, that California did have a stop-and-identify law. That would give the officers permission to arrest Watts, but it doesn't necessarily mean that it would be the right thing to do. Stop-and-identify is an example of a law that is facially neutral, but can be enforced in a way that allows the police to abuse their authority regarding some citizens more than others. Watts expresses what it feels like to be on the receiving end of this sort of enforcement:
“As I was sitting in the back of the police car, I remembered the countless times my father came home frustrated or humiliated by the cops when he had done nothing wrong.”
She continued, “I felt his shame, his anger, and my own feelings of frustration for existing in a world where I have allowed myself to believe that ‘authority figures’ could control my BEING… my ability to BE!”
And finally, to whoever made the call to the police in the first place because seeing two other people kissing in public "distracted" them: yes, two human beings expressed affection toward each other in the street. That something about the scenario did not sit well with you to the degree that, rather than rejoicing in the happiness of strangers, you dialed 911, should really make you take a hard look at yourself in the mirror.
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Props to Tom Oster for the link.
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