NUTHER UPDATE: This morning (4/5), on Rep. Patrick Rose' motion, Delisi's bill was delayed until a "time certain" at 3 p.m. on Tuesday April 10. If you agree this legislation deserves a prompt and timely death, you still have time to contact your representative between now and then. FINAL UPDATE: This bill died on the House floor.
Vince at Capitol Annex lets us know that a truly nasty bill by Rep. Diane Delisi, HB 855, will be heard today on the House floor. It deserves a good thrashing, but I don't know if it's on members' radar screens. (See Grits' discussion of the proposed law here and here when it was in committee.)
I thought Vince did a better job than I did explaining the problems with the bill, so let's run with his description:
The legislation would make it a crime for a person to refuse to give a peace officer your name, date of birth, or address even if you are not under arrest.Yes, it is. Even shameful, I'd add.In other words, if you are stopped in a car or on the street and a police officer asks for this information and you decline to give it, you have committed a crime.
What ever happened to the right to remain silent or any of those constitutional provisions related to the assumption of innocence? If an officer passes by someone walking on the street who has committed no other offense and asks for this information and they don’t get it, it is a crime.
That’s just wrong.
MORE: Catonya has a personal story on that score.
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9 comments:
This is about getting into people's pockets, subverting the right to be free from unreasonable search and seizure. I suggest everyone answer, "I'm Spartacus!"
I disagree- Law Enforcement needs to be able to ask for a name and expect to get an honest answer. Date of birth is going a little to far unless the situation leans toward arrest. However this does not need to be id or go to jail- How about Id or get a ticket???
There was a recent Supreme Court ruling on this question. I think the gist of it was that Police can stop you and ask you to identify yourself. I don't recall anything specific about drivers licenes, birthday's etc.
I think that if you have to identify yourself then a birth date is part of that -- they need name and DOB to do a records check.
I thought a law like this was overturned in CA in the 80's. But maybe it was a state court.
Who would they write a ticket to if the person doesn't identify themself?
I don't think this should be an offense in and of itself. If a cop with no reason to detain me asks a question - be it my name, my destination or whatever - I have no obligation to consent to the questioning or interact with the officer at all. There are well established legal precedents in place to say when officers have authority to detain suspects or witnesses in actual crimes for questioning. For the most part they are liberally interpreted in favor of police and provide them all the leverage they need to get information - I don't want them out detaining, questioning and ticketing or arresting people who a) they have no reason to suspect of any other offense, and b) who don't want to talk to them. Whatever the courts say, Vince is right - the Constitution says you have a right to remain silent, and this punishes you for exercising it.
And to the first commenter, I'm with you: I, too, am Spartacus! :)
To the third commenter, yes, there was a recent Supreme Court case about this, Hiibel v. Nevada. However, in that instance, the police had been called on a possible domestic violence issue, and had detained the suspect on the grounds of a Terry stop when they demanded the information. This bill lacks even those mitigating circumstances for making it a crime.
Further, if its an actual situation where there is reasonable suspicion that a crime has been committed, Texas ALREADY HAS a law on the books requiring identification. That law was the basis of Brown v. Texas(1979):
"The flaw in the State's case is that none of the circumstances [443 U.S. 47, 52] preceding the officers' detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant's trial that the situation in the alley "looked suspicious," but he was unable to point to any facts supporting that conclusion. 2 There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.
In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. [443 U.S. 47, 53]
The application of Tex. Penal Code Ann., Tit. 8, 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. 3 Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is reversed."
Now, the court we have now is not exactly the Berger court, but even Hiibel was a 5-4 decision where the majority included Rehnquist and O'Connor, and the failure to identify nearly split the court even in the circumstances of a Terry stop.
Scott's right. Federal constitutional law says the key is whether you are free to leave. If you are free to leave (meaning you're not detained), you have no legal obligation to answer any questions. At that point, you have an absolute right to not answer and simply walk away and your failure to cooperate cannot be taken as reasonable suspicion to detain you. On the other hand, if you are not free to leave (meaning you are detained), then you have to answer the officer's questions, otherwise you are Failing to Identify. But if the police have detained you (i.e. an "investigatory detention"), they have to have reasonable suspicion to have done so, otherwise it's an unlawful detention and the fruits of that detention are inadmissible in court. I believe the case on point is Florida v. Royer, 460 U.S. 1 (1983).
Here's a good overview of the opinion: http://www.jus.state.nc.us/NCJA/legmay94.htm
Bottom line: in my view, this law is unconstitutional, not to mention unnecessary and wrong.
I love it: Brown v. Texas. I've used that one twice on motions to suppress cases. It's always nice to see that one!
I wrote a related story (personal experience) today.
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