See Your Papers?

I'm an American. When I was growing up (in the 1970's and 1980's) everyone said that one of the key differences between a free America and an un-free Communist nation was that over there, the police state could ask to "see your papers" anytime they wanted. That was probably my (and many people of my generation's) principal understanding of exactly how we were "free" in America - we had the ability to go where we wanted without being stopped and interrogated randomly.

In 2004, the U.S. Supreme Court decided a case that's pretty much the worst legal reasoning I've ever read. It's named Hiibel v. Nevada, and it basically says that Americans don't have that freedom after all. The reasoning in it is really atrocious, it's truly Catch-22 logic in the worst way.

Basically, a man named Larry Hiibel was standing next to his truck in Nevada, talking to his daughter. (They had previously argued about a boy she was seeing and she had slugged him in the arm.) A Sheriff's Deputy drove up and asked to see his identification, and he refused. The Deputy asked him 11 times, and each time he refused and asked why he needed to show ID. The response was "Because I'm investigating an investigation". Finally, the Deputy arrested Hiibel for non-cooperation with a police officer. (Link to the video of the arrest at the bottom of this page.)

The case proceeded all the way to the Supreme Court, where it was ultimately decided against Hiibel (in a 5-to4 vote), that the arrest was in fact legitimate simply for refusing to produce identification when asked. But, the reasoning it takes them to reach this conclusion is so tangled-up it's amazing.

One part of the decision has to deal with the Fourth Amendment (the right against arrests without good cause). Everyone agrees that the police officer can walk up and ask questions of somebody. However, "it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer". In fact, Hiibel could point out at least 3 different previous Supreme Court rulings that did assert that a person could refuse to answer those questions, as per the Fourth Amendment. For example, in the all-important Terry case that allows such questioning in the first place, the person is "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest."

But, here's what the Court in 2004 has to say about that. "We do not read these statements as controlling... the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment." It turns out that Nevada has a law that says you can be arrested for not identifying yourself to a police officer. And the Supreme Court is deciding that instead of the Fourth Amendment trumping that law, it's the other way around. As long as a state passes a law contradicting the Bill of Rights, apparently the state law takes precedence instead. I didn't think it was supposed to work that way, but there it is.

Another part of the decision had to deal with the Fifth Amendment (the right to avoid testifying against yourself in a criminal case). The Court does say that there is a "Fifth Amendment privilege against compulsory self-incrimination", which one would think would apply here, that a person can choose to not answer questions. However, they do a neat trick by requiring that the information being asked be something that really would incriminate the suspect, and they seem to require proof as to exactly how you would be incriminated, before you can exercise your Fifth Amendment rights. Here's what they say:

In this case petitioner's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him... As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer's business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner's strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature's judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.

Got that? You have a Fifth Amendment right to not answer questions that would incriminate you. However, in order to do that you apparently need to "explain" to the court exactly what the "link in the chain of evidence" would be that would actually convict you, or you can't exercise the Fifth Amendment. Of course, if you do that, then you've just incriminated yourself! Duh!

Bleagh. I would really expect better from the U.S. Supreme Court, and frankly I'm rather shaken that my fundamental understanding of how Americans are "free" turns out to not hold much water, after all. Anyway, I'd encourage anyone to check out the actual police video of the arrest (a few minutes), and the official Court decision (a few pages), below.

Video of the arrest:
Supreme Court decision: (look under R-64).

P.S.: Having written the preceding, without further comment, I thought I should look up which justices voted which way, and note who nominated them for the Court. Here goes. Voting for the arrest: Justices Kennedy, Rehnquist, O'Conner, Scalia (all Reagan), and Thomas (Bush I). Voting against the arrest: Justices Stevens (Ford), Souter (Bush I), Ginsburg and Breyer (Clinton).

Sept. 7, 2004