Do You Have to Give Your ID to the Police?

This week I'm teaching Hiibel v. Sixth Judicial District Court of Nevada (2003), which deals with the following question: If the police ask for your ID and you decline to provide it, can they arrest you?

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.

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 story of how the police came to ask her for identification in the first place is horrible. CBS Los Angeles reports:

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.

John Shaming

There are many ways to address prostitution through the criminal justice apparatus, and one of them involves targeting the clients. Some jurisdictions hold john schools, to varying degrees of success. And some leave notices on cars parked in areas of high-prostitution trafficking, or send them to clients' homes.

Recently, online john-shaming is the way to go. The Chron reports:

Bay Area johns have a new worry: finding their mug shots and charges posted online for all to see.

It's a cyber scarlet letter with a punch, as 11 men found out in Richmond after they encountered undercover officers who posed as prostitutes Thursday afternoon while wearing hidden microphones along busy 23rd Street.

The officers snapped the men's mug shots while booking them in the field, then posted the photos Friday to the police force's Facebook page.

. . . 

"It's a way of using the embarrassment card," said police Lt. Kevin Wiley, who helped create Oakland's website. "It can attack an individual's reputation. They are engaging in crimes that are beneath the surface, off the radar, a dirty little secret, (and) we expose that secret.

"It's not an innocent act," Wiley said. "No more of that good-old-boy mind-set."

The Oakland website, inspired by a similar program in Fresno, states that individuals are presumed innocent until proven guilty. The plan is to update it with new photos of alleged johns and pimps about every two weeks.

What do you think about john-shaming as a prostitution-combating technique?

Highway Robbery? Civil Forfeiture and Capitalism Gone Bad

Yesterday's Washington Post story draws some attention to seldom-discussed police activities: civil forfeitures on the road. They start by explaining how it works:

Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as Equitable Sharing. Asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pressing criminal charges and then requires the owners to prove their possessions were legally acquired.

The practice has been controversial since its inception at the height of the drug war more than three decades ago, and its abuses have been the subject of journalistic exposés and congressional hearings. But unexplored until now is the role of the federal government and the private police trainers in encouraging officers to target cash on the nation’s highways since 9/11.

The Post also did an analysis of hundreds of thousands of seizure records and found the following:

• There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.
• Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.
• Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.
• Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments. Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period, according to company officials. More than 25,000 police have belonged to Black Asphalt, company officials said.
• State law enforcement officials in Iowa and Kansas prohibited the use of the Black Asphalt network because of concerns that it might not be a legal law enforcement tool. A federal prosecutor in Nebraska warned that Black Asphalt reports could violate laws governing civil liberties, the handling of sensitive law enforcement information and the disclosure of pretrial information to defendants. But officials at Justice and Homeland Security continued to use it.

I have a few thoughts about it, and I confess the first one was how little I--and pretty much every other criminal procedure scholar I know--know about this. The prevalence of civil forfeitures is stunning. But what's even more stunning is the way the forfeitures feed into the police departments' bank accounts, and even those of the sheriffs (more on this in the documentary The House I Live In.) Occasionally, we hear of police officers or forensic technicians stealing illegal drugs from the lab--the massive forensic lab scandal in San Francisco is only one example--but, of course, money is not contraband and much easier to use. As are cars, of course. 

A few days ago I finished a paper about private prisons, arguing that CCA and GEO, themselves, are not to blame for mass incarceration and its evils. In a neoliberal economy, public actors, just like private ones, operate based on for-profit motives. Maybe we shouldn't be surprised to see police departments behaving like highway robbers gunning for profit; the set of pressures and incentives created by the neoliberal economy communicates that policing, seizing, and incarcerating for profit (or for savings) is just fine. 

There's also, of course, the issue of due process. There's all this talk about the importance of the presumption of innocence in the criminal context, and yet, in a strongly related context, it is the individual's burden to prove that his/her money was not procured via, or is not related to, criminal activity. This is a liminal place that shows how difficult it is to draw the line across the criminal/civil divide--especially since the consequences of forfeiture are not necessarily less grave than those of a criminal conviction.

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Props to Liliana Garcia for the link.

When Can the Police Shoot to Kill?

The Justice Department will, thankfully, probe into the activities of the Ferguson police force. While there are plenty of reasons to do so, I wonder whether the probe will question the original use of lethal force that led to Michael Brown's tragic death at the hands of police officer Darren Wilson (the recipient of supportive donations), because there are some difficult questions to ask.

This Washington Post story critically examines the authority of police officers to use lethal force.

The first of the Supreme Court rulings that still govern law enforcement policies nationwide on the use of deadly force is Tennessee v. Garner. In the 1985 case, the court concluded that police officers could not shoot at a fleeing suspect simply to prevent their escape. They could shoot, however, if they had probable cause to believe the person was a violent felon and posed a significant threat of death or serious harm to the community.

The more overarching decision is the 1989 Graham v. Connor ruling, written by Chief Justice William Rehnquist and at a time when violence against police was rising amid a crack epidemic. In that case, Charlotte diabetic Dethorne Graham had rushed into a convenience store to get orange juice to stop an oncoming insulin attack but left the juice inside and left suddenly because of the long line. He asked a friend who had driven him to the store to instead drive him to another friend’s house for food.

Charlotte city police officer M.S. Connor, suspicious at Graham’s hasty exit, followed him and his friend, stopped them for questioning and didn’t believe Graham’s story about being diabetic. As Connor was checking by radio with the store, Graham got out of his car and passed out briefly. Backup officers arrived, told Graham to shut up and rammed his head into a patrol car while throwing him in the back of it.

Graham sustained minor injuries and argued that the officer’s use of force was excessive. But the Supreme Court found that the officer’s actions were justified because he reasonably believed the force he was using was necessary to prevent or detect a crime in progress.

More on this in coming weeks.

Leland Yee, Shrimp Boy, and Entrapment

Many San Franciscans have been following, with some measure of titillation, the brewing prosecution against Senator Leland Yee, his political consultant Keith Jackson, and dozens of other defendants, including the elusive Shrimp Boy. I've been providing occasional TV coverage, so I know a bit about the case, which is why I wasn't surprised to see this in the San Jose Mercury News:

Jackson's lawyers argue that the agent's misconduct must be fully disclosed because it may be central to efforts to discredit the government's sprawling investigation.

The agent's financial misconduct is unclear, but court papers say he was key to ensnaring Jackson and later Yee in an investigation that began as a probe into reputed Asian organized crime figure Raymond "Shrimp Boy" Chow.

The agent, court papers say, paid Jackson $37,000 in consulting fees over 16 months as part of the undercover operation, arranged $20,000 in donations to an identified political figure, explored setting up a $200,000 fundraiser for a "senior federal elected official" and set up a meeting with a "prominent former professional athlete" to discuss a hotel project. Lawyers in the case say the probe crossed paths with former San Francisco 49ers quarterback Joe Montana, who has backed a proposed hotel and retail project near Levi's Stadium but has never been linked to any wrongdoing.

Among other legal arguments, Jackson's lawyers say the government failed to disclose that one of its lead agents was being investigated by his bosses when they sought approval from federal judges for wiretaps against Yee, Jackson and other targets. James Brosnahan, Jackson's attorney, has asked U.S. District Judge Charles Breyer to order the government to turn over internal documents detailing why the agent was reprimanded by the FBI.

When I heard the defendants pled not guilty, I immediately thought that they would try and argue entrapment. The case is wholly based on a wire recording of conversations between the agent, who purported to be a businessman, Yee, and Jackson, whom he contacted to ask for favors in exchange for campaign donations (Yee was running for Secretary of State). The recordings are fairly elaborate and damning, but they are, of course, selective; to consider entrapment seriously, other conversations would have had to take place, during which the agent put pressure on Yee and Jackson to do business with him.

A bit of lay information about entrapment: it is a criminal defense, and the defendant needs to prove that, but for the intervention of government agents, s/he would not have been predisposed to commit the crime. Different courts emphasize different aspects of the defense - the predisposition of the defendant versus the egregiousness of police behavior. It gets brought up in the context of drugs, mostly, but there have been cases in which government agents, anxious to uncover a child porn ring, pushed people to buy materials in which they would have had no interest but for the repeated pressure.

A couple of weeks ago, the court approved extensive discovery about the agent to the defense, but there was a ruling prohibiting the defense to share the information with the media. This is a problem for the defense, because one of the best ways to prove entrapment is to probe into the history of the agent/informant and figure out whether he has a history of entrapment or "strong persuasion" to commit crime. I have only to assume that the information leaked out in a different way. Let's keep following this trial, because it's a great window into the workings of an anticorruption undercover investigation.

Copwatch

This week seems to be the gift that keeps on giving. This evening brings with it a story from Seattle, Washington. An African-American bystander strolls by a pro-Palestinian demonstration. A white man is heckling the protesters and screaming racial slurs at them. At some point, he directs his aggressiveness at the bystander. A cop comes along, and pepper-sprays... that's right, you guessed it.

And then, we have a story from Tampa, Florida, where the police... why do I bother? A YouTube video is worth a thousand words.

More on Ferguson

Plenty has been written in the last few days already; I wanted to highlight a few interesting pieces you may not have seen.

The Economics of Police Militarism

One moment, we see a young man with a welt from a rubber bullet between his eyes; the next, three officers with big guns are charging at another black man who has his hands up. On Thursday, Jelani Cobb filed a powerful account from the sidewalks and homes of Ferguson. Cobb asks about “the intertwined economic and law-enforcement issues underlying the protests,” including, for instance, the court fees that many people in Ferguson face, which often begin with minor infractions and eventually become “their own, escalating, violations.” “We have people who have warrants because of traffic tickets and are effectively imprisoned in their homes,” Malik Ahmed, the C.E.O. of an organization called Better Family Life, told Cobb. “They can’t go outside because they’ll be arrested. In some cases, people actually have jobs but decide that the threat of arrest makes it not worth trying to commute outside their neighborhood.”

The Fury in Ferguson and Our Forgotten Lessons from History

Despite the crystal-clear conclusions drawn by the Kerner Commission about why the '60s had seen so much urban unrest, and what would happen if we ignored the lessons of the these rebellions, we are right back where we were 50 years ago. As this Commission noted without equivocation: The urban rebellions of the 1960s stemmed from specific triggers such as police brutality and, more generally, because "discrimination and segregation have long permeated much of American life; they now threaten the future of every American." Indeed, this group of experts warned, if this nation doesn't "press for a national resolution" to discrimination, it will become "two Societies, One Black, One White -- Separate and Unequal."

These chickens have indeed come home to roost. If we don't fully understand the fury in Ferguson, rather than dismiss it as senseless urban violence, and if we don't move swiftly and concretely to ensure justice for the family of Michael Brown -- making clear whose violence started this -- then we are in for many more long, hot summers. Guaranteed.

Autopsy Shows Michael Brown was Struck At Least 6 Times



White St. Louis Has some Awful Things to Say About Ferguson

"Our opinion," said the talkative one in a group of six women in their sixties sitting outside the Starbucks, "is the media should just stay out of it because they're riling themselves up even more."

"The protesters like seeing themselves on TV," her friend added.

"It's just a small group of people making trouble," said another.

"The kid wasn't really innocent," chimed in a woman at the other end of the table (they all declined to give their names). "He was struggling with the cop, and he's got a rap sheet already, so he's not that innocent." (While the first point is in dispute, the second isn't: The police have said that Michael Brown had no criminal record.)

If anything, the people here were disdainful and, mostly, scared—of the protesters, and, implicitly, of black people.

Afraid

We’re afraid that maybe if we write something about the police that law enforcement might single us out at the local level, or persecute us based on our prior coverage. We’re afraid—us journalists, 90 percent white at the supervisory level—might be tailed simply for driving down the street, or, if there’s an emergency at our homes, dispatchers will make no effort to help us beyond a late, procedural check-in.

We’re afraid that we will be treated like black people by police.