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.

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.

Policing and Race: Depends on Who You Ask

Bay Area residents of a few years--or anyone following the news, really--probably remember Johannes Mehserle's trial for the killing of Oscar Grant; you may remember, in particular, the fact that the trial was moved from Alameda County, which was the site of the killing. The change of venue occurred because of the animus in the surrounding community--“in particular, the rare nature and gravity of a murder charge arising out of an on duty uniformed police officer killing an unarmed man during an arrest, the high degree of political turmoil associated with this case, and the resulting avalanche of intense, continuing and current media attention.”

When Judge Jacobson wrote that Grant's killing was "viewed by many as being a case about race relations between the police and minority communities", who did he mean by "many"? The change of venue motion included a poll of Alameda County population, which revealed a racial divide regarding opinions of the case.

I'm bringing this up because today's post on the Pew Center on the States blog includes survey findings on the recent killing of Michael Brown. While the news on Ferguson were just one item among several in a busy news week (the Ebola virus, the death of Robin Williams, the strikes in Iraq and the strikes in the Ukraine), black respondents followed Ferguson news more closely than white respondents.

More importantly, there were big differences in opinion on both the killing of Michael Brown and the police response, and they are exactly what you would expect--supporting research conducted by Dan Kahan and others that shows that one's political/legal opinion depends a great deal on one's culture and experiences.

Update: The National Guard is on its way--just like in the '60.

The Worst Policing Crisis You Haven't Heard Of

It is not easy to find out what is happening in Ferguson at the moment, because journalists are being effectively blocked by the police. But this morning's Washington Post yielded Wesley Lowery's story of his arrest. Lowery was sitting at a local McDonald's, answering questions and tweeting from the convenience of an indoor location with wifi, when police officers came, demanded to see his ID, and arrested him. Here's some of what happened next:

An officer with a large weapon came up to me and said, “Stop recording.”
I said, “Officer, do I not have the right to record you?”
He backed off but told me to hurry up. So I gathered my notebook and pens with one hand while recording him with the other hand.
As I exited, I saw Ryan to my left, having a similar argument with two officers. I recorded him, too, and that angered the officer. As I made my way toward the door, the officers gave me conflicting information.
One instructed me to exit to my left. As I turned left, another officer emerged, blocking my path.
“Go another way,” he said.
As I turned, my backpack, which was slung over one shoulder, began to slip. I said, “Officers, let me just gather my bag.” As I did, one of them said, “Okay, let’s take him.”
Multiple officers grabbed me. I tried to turn my back to them to assist them in arresting me. I dropped the things from my hands.
“My hands are behind my back,” I said. “I’m not resisting. I’m not resisting.” At which point one officer said: “You’re resisting. Stop resisting.”
That was when I was most afraid — more afraid than of the tear gas and rubber bullets.
As they took me into custody, the officers slammed me into a soda machine, at one point setting off the Coke dispenser. They put plastic cuffs on me, then they led me out the door.
I could see Ryan still talking to an officer. I said: “Ryan, tweet that they’re arresting me, tweet that they’re arresting me.”
He didn’t have an opportunity, because he was arrested as well.
The officers led us outside to a police van. Inside, there was a large man sitting on the floor between the two benches. He began screaming: “I can’t breathe! Call a paramedic! Call a paramedic!”
Ryan and I asked the officers if they intended to help the man. They said he was fine. The screaming went on for the 10 to 15 minutes we stood outside the van.
“I’m going to die!” he screamed. “I’m going to die! I can’t breathe! I’m going to die!”
Eventually a police car arrived. A woman — with a collar identifying her as a member of the clergy — sat in the back. Ryan and I crammed in next to her, and we took the three-minute ride to the Ferguson Police Department. The woman sang hymns throughout the ride.
During this time, we asked the officers for badge numbers. We asked to speak to a supervising officer. We asked why we were being detained. We were told: trespassing in a McDonald’s.
“I hope you’re happy with yourself,” one officer told me. And I responded: “This story’s going to get out there. It’s going to be on the front page of The Washington Post tomorrow.”
And he said, “Yeah, well, you’re going to be in my jail cell tonight.”

Ken Muir's 1979 book Police: Streetcorner Politicians tried to make sense of the discretion and perceptions involved in on-site policing. One memorable feature of the book is Muir's classification of police officers on a two-variable grid: how comfortable they feel with the use of force ("morality of coercion") and their general outlook on human nature (tragic/cynical perspective). Muir seems to suggest that the professional is the best of the four, but finds examples, in his interviews, of all four types.

If we can apply this grid not only to individual police officers, but also to police forces and/or situations of policing, it seems to me that the circumstances in Ferguson are revealing--or shaping--a cadre of enforcers. Through the eyes of a cynical cop with an integrated "morality of coercion", a journalist sitting in a fast-food joint is a suspect; a sick or injured man is malingering; a person adjusting his backpack is resisting arrest. This oppositional perspective is mirrored by the community (there's a history there, rich with terrible race relations--not unlike in Oakland); I heard a local artist and activist describing the scene on KPFA, explicitly saying "they're trying to kill us."

This blog addresses policing and the community, focusing primarily on the San Francisco Bay Area. I hope to cover community strategies, policing innovations, race and class problems, private policing, militarization, and other issues pertaining to law enforcement and social control at the front end of the criminal process.