Creeping Totalitarianism: Identify yourself or go to jail

If this idea had been proposed in the 1950s, it would have been discarded as reminiscent of Soviet Communism. But state Sen. Dan Patrick has SB 843 up Tuesday in the Senate Criminal Justice Committee that would expand the offense of "failure to identify" to require people to identify themselves whenever they're legally "detained" by police. Presently, you're only required to identify yourself upon arrest, which has been the law for many years. Here's the description of the legislation and its intent from the bill analysis:

Currently, it is a Class C misdemeanor offense for a person to intentionally refuse to identify himself or herself to a peace officer who has lawfully arrested the person.  It is a Class B misdemeanor offense for a person to intentionally give a false or fictitious name, residential address, or date of birth to a peace officer who has lawfully arrested the person or lawfully detained the person.  Both offenses are enhanced if, at the time of the offense, the actor was a fugitive from justice.

It is not currently an offense for a person to refuse to identify himself or herself to a peace officer who has lawfully detained the person.  Police officers routinely investigate persons found in suspicious places and under suspicious circumstances.  The law allows officers to detain these individuals for purposes of an investigation if the officer reasonably believes that the person may be engaged in criminal activity.  These detentions are known as Terry stops, referring to the United States Supreme Court case Terry v. Ohio, 392 U.S. 1.  Although it is well established that an officer may ask a suspect to identify himself during a Terry stop (see, e.g., United states v. Hensley, 469 U.S. 221, 229), it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer.  In 2004, the United States Supreme Court answered this question in the case of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al.  The Hiibel court held that a state could prosecute a lawfully detained person who refused to identify himself or herself.

S.B. 843 would amend Section 38.02 (Failure to Identify), Penal Code, by creating an offense for a person who refused to identify himself or herself to a peace officer who lawfully detained them.

This is no small thing. In practice, the change amounts to a requirement to identify yourself whenever a cop demands it. That dramatically extends police power over the citizenry in day-to-day interactions where otherwise no arrest need ever result. (The Texas House in 2007 dramatically rejected similar legislation on third reading by a vote of 116 to 23, but the Senate gave approval to Patrick's bill in 2009. See the extraordinary 2007 House debate here beginning at the 1:53 mark; Rep. Senfronia Thompson was amazing that day.)

Arresting people for no other reason than refusing to give their name? So much for the right to remain silent. How can you tell the cop your name if you're silent, and if by law you must break silence any time a cop detains you, how can one be reasonably said to have a "right" to it? Where are the "limited government" conservatives when you need them?

Though there's no explicit amendment in the Constitution authorizing it (except the utterly disregarded 9th), what about the right to be left alone if you're not doing anything wrong? Must I really answer questions from police, subject myself to background checks, etc., just because a cop chooses to detain me without cause? Why can't one simply say, like Bartleby the Scrivener, "I would prefer not to," and go on one's way unmolested? "None of your business" should still be a valid response when the state pokes its nose into your affairs without justification. Until now in Texas, you had the right to tell the cops to "buzz off" and if they don't have cause to arrest you, there's no requirement you tell them your name or any other damn thing. This bill would make people who merely refuse to identify themselves subject to arrest. (Even though it's a Class C misdemeanor, there's little doubt the detainees would be arrested because they wouldn't have a name to put on the ticket.)

The reference to Terry v. Ohio is particularly significant. So called "Terry stops" are Fourth Amendment exceptions that the Supreme Court created to justify detention of individuals when law enforcement specifically does not have probable cause to arrest. ("Terry frisks" are pat downs allowed without probable cause, ostensibly for the officers' safety.) But this bill changes the dynamic of such stops significantly. Before, officers could stop you but you didn't have to cooperate. If SB 843 passes, mere noncooperation would subject you to arrest. (As though crowded jails in the larger counties have anywhere to put such petty offenders.) Indeed, the bill analysis focuses on situations where officers have reasonable suspicion, and testimony in 2009 in favor of the same bill gave examples like people taking pictures of nuclear power plants. But the legislation is really much broader than that. Officers are also allowed to "lawfully detain" people merely to check on their safety - so-called "welfare checks." So under this bill, an officer could legally detain me to check on my "welfare," ask my name, and if I don't give it she could arrest me. That dynamic gives the concept of a welfare check a decidedly Orwellian flair.

This is creeping totalitarianism, and I have a hard time wrapping my head around the fact that it's being promoted by one of the most ardent small-government advocates in all of Texas politics. Heaping more power on government agents in routine encounters with citizens is not my idea of "limited government."

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