Wednesday, 22 October 2003

U.S. Supreme Court to rule on law requiring ID

The US Supreme Court agreed Monday to hear an appeal of a Nevada Supreme Court decision upholding a conviction for “resisting a public officer” based solely on the defendant’s refusal to identify himself. has links to court documents and news reports about the case.

Fascinating. Very frightening — I don’t want to have to carry a domestic passport all the time. The idea of a passport as symbolizing freedom to travel is an illusion: Passports and, “Your papers, please!” are really the symbols of unfreedom to travel. And what about the 5th Amendment (self incrimination) — the case seems to have been argued solely as a 4th Amendment (search and seizure) case?

John Gilmore, who brought this case to my attention and who is still waiting for a decision on his legal challenge to airline ID requirements, points out that, “The case involves a demand for ID that occurred outside a travel context — in and around a parked car — but if ID-while-sitting-still is upheld, then ID-for-travel is also likely to be upheld.”

Aside from the fact that the Nevada court seems to have defied clear Ninth Circuit precedent, there’s a curious angle to the case that doesn’t seem to have been addressed in the lower courts. (I don’t know if it was raised at trial.)

The Nevada statute says, “Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. [I don’t know what “abroad” means in this statute. “Outside their assigned cage”, perhaps? It never fails to amaze me how badly laws are written. - EH] Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

The statute says “identify”. Not “produce identity documents” or “produce proof of identity” or even “produce evidence of identity”.

What does “identify” mean? The decision seems to conflate refusal to produce documents with refusal to identify oneself, but that can’t be sustainable.

Cf. the discussion in my comments on CAPPS 2.1 on the ineffectiveness of requiring a name in the absence of a requirement to produce documents or proof, since people legally can use any name they please (for any purpose except fraud).

My argument in the Nevada case would be that (1) the stature doesn’t (and can’t) require document porduction and (2) without that, the requirement to state a name — any name — fails to advance any legitimate purpose, and thus fails any balancing test against liberty interests.

The next time I go to Nevada, remind me first to take a marker and write “My name is John Doe” on my forehead to identify myself and protect my right to sit in public without risk of detention.

Link | Posted by Edward on Wednesday, 22 October 2003, 06:08 ( 6:08 AM)
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