October 21, 2002
-- Larry Hiibel Case
-- Hiibel vs. Nevada
Justices to Weigh a New Right to Remain SilentBy David G. Savage,
LA Times Staff Writer | A15WASHINGTON — The Supreme Court said Monday that it would consider creating a new right to remain silent — this time for people who are stopped, but not arrested, by police.
A stubborn Nevada man who was standing along a roadway when an officer approached him will get a hearing to decide a basic question that the high court has never squarely answered: Does the Constitution give a person the right to refuse to identify himself to the police?
Typically, a motorist who is stopped by the police is required by state law to show a driver's license. Similarly, passengers at an airport or individuals visiting a government office building must identify themselves to security personnel.
But the law is not clear on whether others, including ordinary pedestrians, may be required to identify themselves to the police.
"It is inimical [adverse] to a free society that mere silence can lead to imprisonment," said a lawyer for Larry Hiibel, the Nevada ranch hand who refused to give his name.
A deputy sheriff patrolling near Winnemucca, Nev., responded to a call that the driver of a pickup was seen hitting a woman in the passenger's seat. The deputy spotted Hiibel standing next to a GMC truck similar to the one that had been described.
When asked for his identification, Hiibel refused. Eleven times, the deputy asked the man to give his name or show identification. Based on Hiibel's manner, the deputy suspected that the man was intoxicated and that he might have struck the passenger, who was his grown daughter.
In the end, however, the deputy arrested Hiibel for resisting a police officer and obstructing an investigation by refusing to give his name. He was not charged with any other offense.
Last year, the Nevada Supreme Court, in a 4-3 decision, upheld Hiibel's conviction and a $250 fine.
The court's majority said that officers, as well as law-abiding citizens, would be placed in danger if the police could not require people behaving suspiciously to identify themselves.
"The suspect may be a felon or wanted for an outstanding arrest warrant. Perhaps that person is a sex offender," wrote Nevada's then-chief justice, Cliff Young.
"More importantly, we are at war against enemies who operate with concealed identities, and the dangers that we face as a nation are unparalleled," he added, in a reference to the war on terrorism.
However, in his appeal to the U.S. Supreme Court, Hiibel's public defender, James Logan Jr., pointed out that the U.S. 9th Circuit Court of Appeals had taken the opposite view.
"Compelling an individual to identify himself violates the 4th Amendment" and its ban on unreasonable searches and seizures, the circuit court said last year, unless officers have enough evidence to arrest the person. That ruling upheld a lawsuit filed by a gambler who was taken from a casino in Laughlin, Nev., and arrested for refusing to identify himself to a state gaming agent.
On Monday, the Supreme Court announced it would hear the case of Hiibel vs. Nevada to decide whether the Constitution barred police "from compelling people to identify themselves during a police investigation" if the officers did not have "probable cause" to make an arrest. The justices said they would consider the 4th Amendment's limit on "unreasonable seizures" and the 5th Amendment's right against self-incrimination.
Conrad Hafen, a deputy attorney general for Nevada, said he was pleased that the high court had agreed to resolve the matter.
"Our officers have been caught between a rock and a hard place. Our state court says you can arrest someone who refused to identify himself, but the federal court says you can be sued if you do that," he said.
"We certainly think it is reasonable for an officer to ask a person to identify himself. And allowing an individual to withhold his name will make it much more difficult to investigate a suspicious person." If officers cannot obtain a person's name, they may go ahead and arrest the individual and take him to jail, Hafen said.
"I think this [obtaining an identification on the street] prevents an innocent person from being arrested and a wanted criminal from being let go," Hafen said.
The Supreme Court long has struggled to draw a line between the power of the police to look for possible wrongdoing and the privacy rights of individuals walking on the street.
In 1968, the justices took up the case of two men seen walking nervously in front of a store — "casing the joint," as one justice put it. In what turned out to be a famous ruling, the Supreme Court said in Terry vs. Ohio that the police were free to "stop and frisk" a person acting suspiciously on a sidewalk. Since then, such "Terry stops" have become routine and have been cited in dozens of rulings.
The high court said officers could check possible suspects for weapons and ask the individuals what they were doing. However, the court also insisted that these searches must be limited; officers are not generally free to feel in the pockets or clothing of the possible suspect in a search for contraband such as drugs.
In an aside, the justices also suggested that a possible suspect need not answer an officer's questions.
Now, 35 years later, the court will decide the question that went undecided then.
The clearest test came 20 years ago in a challenge to California's anti-loitering law. The law stated that any person who "loiters or wanders upon the streets" and "refuses to identify himself" could be charged with disorderly conduct. In a 7-2 decision, the high court declared that open-ended law unconstitutional because it gave the police too much power to arrest individuals who had done nothing wrong.
Rather than spelling out a true crime, the anti-loitering law "encourages arbitrary enforcement" by allowing arrests of innocent loiterers, said Justice Sandra Day O'Connor. More recently, the 9th Circuit relied on that ruling as a basis for saying that people acting suspiciously could refuse to identify themselves to the police.
Larry Hiibel
the Nevada ranch hand who refused to give his name
James Logan Jr.
Hiibel's public defender
Ed Lawson
amicus curiae
amicus curiae
n. Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. For example, the American Civil Liberties Union often files briefs on behalf of a party who contends his constitutional rights have been violated, even though the claimant has his own attorney. Friends of the Earth or the Sierra Club may file a supporting amicus curiae brief in an environmental action in which they are not actually parties. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party's presentation to the court.
David G. Savage
LA Times | Washington DC
Cliff Young
Nevada's then-chief justice:
"The suspect may be a felon or wanted for an outstanding arrest warrant. Perhaps that person is a sex offender. More importantly, we are at war against enemies who operate with concealed identities, and the dangers that we face as a nation are unparalleled."
Tuesday, October 21, 2003
Copyright © Las Vegas Review-JournalEDITORIAL: Identity crisis
Justices to rule on Nevada privacy challenge
Monday, the U.S. Supreme Court agreed to review a case from Northern Nevada that could help clarify the boundaries of individual liberty and privacy in this post-Sept. 11 world.
The case dates from 2000, when Larry Hiibel, standing beside his parked truck, was approached by a law enforcement officer in Humboldt County, after police received a complaint that a man had been witnessed striking a small girl inside a pickup. The officer asked Mr. Hiibel -- whose daughter was sitting in his truck -- for some proof of identification 11 separate times; in each instance, Mr. Hiibel refused, saying he had done nothing wrong.
Finally, Mr. Hiibel was arrested and convicted of resisting and obstructing an officer in the performance of his duties. Subsequent charges of domestic battery were dropped. Mr. Hiibel then appealed the conviction, saying an individual who is not suspected of or charged with a specific crime cannot be compelled to produce identification to the police.
By a 4-3 vote, the Nevada Supreme Court rejected Mr. Hiibel's request.
The majority ruled that any privacy right guaranteed by the Fourth Amendment to the U.S. Constitution is "outweighed by the benefits to officers and community safety" by allowing police to force people to provide identification papers on request.
Citing the terrorist acts of Sept. 11, 2001, the court said police need new powers to properly do their job:
"Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop."As we stated last year, such reasoning puts a nation founded on the principles of ordered liberty on the fast track to a police state. The Nevada justices went to great lengths inventing a constitutional fig leaf to cover such logic. Mr. Hiibel was not suspected of terrorism, even by the most elastic definition imaginable. And the arresting officer didn't charge him with the genuine offense of domestic battery until after he had been hauled in for refusing to present his papers.Dragging someone to the jailhouse for mere stubbornness is -- or should be -- anathema to a free society. This sentiment was reflected in a filing by Mr. Hiibel's lawyer, public defender James P. Logan. In some parts of the country,
"a person under a shadow of suspicion, who has not committed any crime, can be approached by the police, do absolutely nothing, and yet be arrested, convicted and incarcerated,"the document stated."It is inimical to a free society that mere silence can lead to imprisonment," Mr. Logan wrote. The federal justices should agree.
December 21, 2002
NEVADA SUPREME COURT:
Justices rule suspect must give police IDDissenting judge fears erosion of civil liberties while others say officer's safety is paramount
By ED VOGEL
REVIEW-JOURNAL CAPITAL BUREAUCARSON CITY -- In a 4-3 decision in which justices debated terrorism and its effect on American civil liberties, the state Supreme Court ruled Friday that a police officer can order a suspect to produce identification.
The majority decided that Humboldt County Deputy Sheriff Lee Dove rightfully asked suspect Larry Hiibel to identify himself out of concern for his personal safety.
Hiibel refused to identify himself during a May 2000 stop just outside of Winnemucca because he did not believe he did anything wrong. After Dove asked him 11 times to produce identification, Hiibel was arrested. The law requires people to identify themselves to police when ordered to do so.
In a stinging dissenting opinion, Justice Deborah Agosti said the court majority "has allowed the first layer of our civil liberties to be whittled away."
She contended that the "the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society."
Dove had been sent by dispatchers to a site where someone saw a man striking a girl inside a truck. When the officer arrived, he saw Hiibel standing outside a truck. He said he thought Hiibel was intoxicated and his daughter was sitting in his truck.
Hiibel later was convicted in district court of resisting and obstructing a police officer in carrying out his duties. He appealed that verdict -- and a fine of $320 -- to the Supreme Court.
In the majority decision, Justice Cliff Young wrote that the "right to be let alone -- to simply live in privacy" is sacred, but that it is not absolute.
Young and Justices Myron Leavitt and Nancy Becker said the "intrusion on privacy" made by police seeking identification is "outweighed by the benefits to officers and community safety."
"The most dangerous time for an officer may be during an investigative stop -- when a suspect is approached and questioned," Young wrote.
He noted that 51 officers were killed in the line of duty in the United States in 2000, including 13 during traffic stops and six during investigations of suspicious persons.
"Knowing the identify of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop," Young wrote in the majority decision concurred in by Chief Justice Bill Maupin.
But Young went beyond the Nevada case when he cited how police authorities need all the help they can get in the war against terrorism.
"More importantly, we are at war against enemies who operate with concealed identities, and the dangers we face as a nation are unparalleled," he stated. "Terrorism is changing the way we live and the way we act and the way we think."
The justice then repeated a comment made last year by President Bush: "This is a different kind of war that requires a different type of approach and a different type of mentality."
To be forced to reveal one's identity, according to Young, is not an invasion of privacy. He pointed out that people give their names to others every day "without much consideration" and part of "polite manners."
But in the dissenting opinion written by Agosti and concurred in by Justices Bob Rose and Miriam Shearing, the court minority expressed concern about the loss of civil rights since the Sept. 11, 2001, terrorist attacks.
"Now is precisely the time when our duty to vigilantly guard the rights enumerated in the Constitution becomes most important," Agosti wrote. "To ease our guard now, in the wake of fear and unknown perpetrators who may still seek to harm the United States and its people, would sound the call of retreat and begin the erosion of civil liberties."
Agosti also maintained that the "true test of our national courage" is not defending ourselves against terrorism, but "our necessary and steadfast resolve to protect and safeguard the rights and principles upon which our nation was founded, our constitution and our personal liberties."
While siding with the majority, Maupin said he thought the majority overreacted with its references to the dangers of the war on terrorism.
He said the decision was simply over a police officer's need to protect himself against a man suspected of domestic violence and drunken driving.
December 21, 2003
Las Vegas Review-Journal
EDITORIAL:Your papers, please
Four Nevada high court justices endorse police state
About the only good thing about Friday's state Supreme Court decision that Nevada police can demand of any citizen, anywhere, that he present proof of identification is that it was a close vote.
Three stalwart justices set their jaws and stood firm in a desperate rear-guard defense of our remaining, fast-eroding freedoms, insisting we are not yet -- or shouldn't be -- living out a scene from one of those old black-and-white war movies in which the Gestapo officers in the wide-brimmed hats strut through the train full of terrified escapees, demanding that everyone show their "travel papers, please."
The case began in May of 2000, when Humboldt County Deputy Sheriff Lee Dove was sent by dispatchers to a site where a caller had reported seeing a man strike a girl inside a truck.
Arriving at the scene, Deputy Dove found a man who later turned out to be Larry Hiibel standing outside a truck. Mr. Dove later testified that he believed Hiibel to be intoxicated and that his daughter was sitting inside his truck. Mr. Dove demanded to see the man's identification 11 times. Eleven times the man refused, because he did not believe he had done anything wrong.
Under a law which pretends to require Nevadans to identify themselves to police upon demand, Mr. Hiibel was later convicted of resisting and obstructing a police officer in the performance of his duties. He appealed to the state Supreme Court, where a slim, four-member majority Friday abandoned the cause of privacy and freedom, delivering us instead into the hands of police-state tyranny.
To be forced to reveal one's identity to a cop, even if you're simply standing by the roadside -- Justice Cliff Young wrote for the majority -- is not an invasion of privacy because people give each other their names every day "without much consideration" -- this is merely part of "polite manners," Justice Young explains.
Then, Justice Young goes on to offer the rationale which has justified every police state from the dawn of tyranny -- that any minor "intrusion on privacy" is "outweighed by the benefits to officers and community safety."
"Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop," Justice Young wrote for himself, Chief Justice Bill Maupin, and fellow Justices Myron Leavitt and Nancy Becker.
Can Justice Young still recall anyone who might once have said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety"?
With the growing threat to our constitutional liberties in this post-Sept. 11 atmosphere, "Now is precisely the time when our duty to vigilantly guard the rights enumerated in the Constitution becomes most important," wrote Justice Deborah Agosti, in a brave and ringing dissent joined by Justices Bob Rose and Miriam Shearing.
The "true test of our national courage" is "our necessary and steadfast resolve to protect and safeguard the rights and principles upon which our nation was founded, our constitutional and our personal liberties," Justice Agosti concludes.
Amen to that.
Yes, a policeman's lot can be slightly less safe and convenient in a free country. But ask anyone who survived Russia in the 1930s, Germany in the 1940s, China in the 1950s, or Cambodia or Chile in the 1970s, how much "safer" it felt to live in a nation where everyone was tracked, numbered, and required to show their "papers, please," on demand.
Split Nevada court
says police can demand IDsBy BRENDAN RILEY
ASSOCIATED PRESSCARSON CITY, Nev. (AP) - The Nevada Supreme Court ruled 4-3 Friday that police can arrest people who won't identify themselves, but dissenting justices said the ruling undermines Americans' civil liberties.
The majority ruling in the precedent-setting case upholds the misdemeanor conviction of Larry Hiibel for resisting a Humboldt County sheriff's deputy by refusing nearly a dozen times to identify himself.
Chief Justice Cliff Young, who wrote the majority opinion, said the Fourth Amendment guarantees Americans a "right to be let alone" and "wander freely and anonymously."
But Young, in upholding a state law requiring people to identify themselves to police, added that right isn't absolute when police have "a reasonable suspicion."
Raising the specter of terrorism, Young said, "we are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled."
Hiibel was suspected of drinking and driving and of hitting his daughter, who was riding in his truck when he was stopped. Prosecutors later dropped a misdemeanor domestic battery charge, and Hiibel wasn't charged with drunken driving.
"Requiring a person reasonably suspected of committing a crime to identify himself or herself ... during a brief, investigatory stop is a common sense requirement necessary to protect both the public and law enforcement officers," Young concluded.
Justices Myron Leavitt, Nancy Becker and Bill Maupin agreed. Maupin insisted that the majority "has not somehow overreacted to the dangers presented by the war against domestic and international terrorism."
Justices Deborah Agosti, Miriam Shearing and Bob Rose dissented.
Agosti said Young was "reflexively reasoning" and "making an emotional appeal based upon fear and speculation."
Being forced to produce identification to police or else face arrest "is government coercion - precisely the type of governmental intrusion that the Fourth Amendment was designed to prevent," Agosti said.
"The majority, by its decision today, has allowed the first layer of our civil liberties to be whittled away," Agosti wrote. "The holding weakens the democratic principles upon which this great nation was founded."
"The undermining of that foundation is a harm more devastating to our country and to this state than any physical harm a terrorist could possibly inflict."
The true test of national courage in the face of terrorism isn't a resolve to defend the country but, rather, "to protect and safeguard the rights and principles upon which our nation was founded, our constitution and our personal liberties," Agosti said.
December 27, 2002 - 11:54 AM GMT |"Your papers please" comes to Nevada
According to a Dec. 21, 2002
Las Vegas Review-Journal article:In a 4-3 decision in which justices debated terrorism and its effect on American civil liberties, the state Supreme Court ruled Friday that a police officer can order a suspect to produce identification.
The majority decided that Humboldt County Deputy Sheriff Lee Dove rightfully asked suspect Larry Hiibel to identify himself out of concern for his personal safety.Hiibel refused to identify himself during a May 2000 stop just outside of Winnemucca because he did not believe he did anything wrong. After Dove asked him 11 times to produce identification, Hiibel was arrested. The law requires people to identify themselves to police when ordered to do so.
In a stinging dissenting opinion, Justice Deborah Agosti said the court majority "has allowed the first layer of our civil liberties to be whittled away."
She contended that the "the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society."
Emphasis added: Dove had been sent by dispatchers to a site where someone saw a man striking a girl inside a truck. When the officer arrived, he saw Hiibel standing outside a truck. He said he thought Hiibel was intoxicated and his daughter was sitting in his truck.
[Justice Cliff] Young and Justices Myron Leavitt and Nancy Becker said the "intrusion on privacy" made by police seeking identification is "outweighed by the benefits to officers and community safety."
"The most dangerous time for an officer may be during an investigative stop -- when a suspect is approached and questioned," Young wrote.
What the heck is an "investigative stop?"
It certainly wasn't a traffic stop, as Hiibel was already standing outside a stopped truck.
That the police can demand identification of drivers is an exception to the rule -- pedestrians do not have to produce identification on demand (that is, until this Nevada Supreme Court ruling). But thanks to automobile-oriented development, nearly everyone is a driver now and has become accustomed to producing identification for the police at the drop of a hat, and so now even a state Supreme Court has become confused.
This is a classic slippery slope in action. First an exception is made (identification necessary only for motor vehicle operators), and then the exception becomes pervasive (everyone is forced to drive everywhere), and finally the pervasive becomes the rule.
To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer's action must be “ ‘justified at its inception, and... reasonably related in scope to the circumstances which justified the interference in the first place.’ ”
HIIBEL v NEVADA.
United States v. Sharpe, 470 U. S. 675, 682 (1985) (quoting Terry, supra, at 20).
“[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”
Miranda v. Arizona, 384 U. S. 436, 467 (1966).
It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.”
Davis v. Mississipi, 394 U. S. 721, 727, n. 6 (1969).
A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante, at 12.
The Court recognized that the Fourth Amendment protects the “ ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891)).
[A] Terry suspect “must be free to... decline to answer the questions put to him”
Kolender v. Lawson, 461 U. S. 352, 365 (1983)
Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty.
Kolender v. Lawson, 461 U. S. 352, 365 (1983)