In other words, the police are free to approach us and ask us questions, but Americans retain the right to say “No.” Indeed, if citizens do not affirmatively assert their right to say “No,” the courts will deem those rights to have been “waived.” The lesson was that citizens must take responsibility for their own rights. That sounds sensible enough.
But now consider what has happened to Dudley Hiibel. Hiibel was standing outside of his truck smoking a cigarette when a cop approached him. Minutes before, policeman Lee Dove had received word of a 911 call from someone who had reported seeing a fight between a man and a woman inside a truck. Dove did what any good cop would do in the situation—he started asking questions. Addressing Hiibel, Dove asked, “You got any identification on you?” Hiibel offered no violent resistance and did not attempt to flee, but he did politely refuse to answer any questions. For that—and that alone—Hiibel was arrested and prosecuted for “obstructing an officer.”
Hiibel’s attorneys appealed the case all the way to the Supreme Court, arguing that such an arrest could not stand. In a shocking ruling that was authored by none other than Justice Kennedy, the Court affirmed Hiibel’s conviction. Because it is obviously useful for the police to know the identity of suspects, the Court concluded that it is equally obvious that jailing people who decline to answer questions is a constitutionally permissible policy. But what happened to our right to say “No”?
Constitutional and criminal law experts are now coming forward to defend the Hiibel ruling, arguing that the decision is “narrow” and does not grant the police the power to approach any pedestrian and to demand identification. That is only true in a very technical, legal sense. The awful truth is that the police have now acquired the de‐facto power to demand identification from just about anyone. With the Hiibel precedent on the books, here is the legal situation for anyone who might consider rebuffing a cop’s demand for identification.
- A person can still refuse to give his name if he is confident that the particular jurisdiction has no law requiring individuals to identify themselves to the police during “Terry stops.” (A Terry stop is a situation where a police officer has “reasonable suspicion” that a crime has occurred. The officer can briefly detain or stop a person to investigate.) In addition to the state code, one must be confident about county and city ordinances. Since ignorance of the law is no excuse, an error on your part means you could be arrested, prosecuted, and jailed for up to one year.
- Cops do not approach pedestrians with announcements like, “This is a Terry stop!” Thus, in a sudden confrontation, one can gamble that the officer is not conducting a Terry stop and is instead simply seeking your voluntary cooperation. Of course, if you are wrong, you can be arrested and jailed for up to one year.
- A person can decline to give his name if the cop is attempting to make an illegal Terry stop. To prevail here, however, one must submit to an arrest, acquire a criminal record, hire an attorney, and then persuade a judge that the stop was illegal. If you lose, you could be jailed for up to a year.
- Even in situations where the Terry stop is perfectly valid, you can still withhold your name on Fourth Amendment grounds. To prevail here, however, you must submit to an arrest, acquire a criminal record, hire an attorney, and then persuade a judge that the police officer’s demand for your name was not “reasonably related to the circumstances justifying the stop.” If you lose, you could go to jail for up to one year.
- One can also decline to give one’s name on Fifth Amendment grounds. To prevail here, however, one must submit to an arrest, acquire a criminal record, hire an attorney, and then persuade a court that divulging the name would have given the police a “link in the chain of evidence” needed to convict you of another offense. If you lose, once again, you face up to one year in jail.
Given the risk and uncertainty, nearly everyone will be deterred from traversing this legal minefield in order to rebuff an illegal police demand for identification. And the demands will hardly end with people’s names. Many jurisdictions already have laws that require people to explain their conduct to the police (e.g. What are you doing? Where are you going?). That will be the next battleground in this area of the law.
When Hiibel’s case was argued in front of the Supreme Court, Justice Antonin Scalia said that he could not “imagine why any responsible citizen would object to giving the name.” There are at least two responses to that. First, conservatives often chide liberal judges for injecting their personal predilections into their rulings. Justice Scalia’s statement invites conservatives to succumb to that temptation here. If an American citizen has a right to withhold her consent from the search of a purse or to decline a prosecutor’s invitation to discuss one’s business affairs, the legal inquiry must end there. Just as judges do not apply a “responsibility” test to determine whether, say, an article laced with profanity is protected by the First Amendment, judges ought not to delve into the moral and ethical implications of lawful noncooperation.
Second, just for the sake of argument, I can imagine many situations in which a responsible citizen might not want to cooperate with a police officer. There are a wide variety of instances where a police officer might be acting inappropriately and where the responsible course of action would be to shut down the encounter by ignoring the agent. To take but one example, suppose a narcotics agent were to take a romantic interest in a lady who disembarks from a train and who fits a broadly defined “drug courier” profile. Suppose it was painfully obvious that this cop was using his badge as a pretext to discover this lady’s plans for the upcoming weekend. Who could fault this citizen for opting for silence in the face of such boorish and unprofessional behavior? The probability of such events is beside the point. Citizens ought to be able to turn to a simple defense when confronted by abusive police behavior (instead of acquiescing and “winning” in court at some later date). Unfortunately, the Court has now hopelessly complicated the simple right to remain silent.
The key point is that in a free society, the criminal laws are supposed to be clear so that citizens will know what conduct is prohibited. With the Hiibel ruling, the Supreme Court has created a situation where ordinary Americans cannot be sure if they are invoking their constitutionally‐guaranteed rights or whether they are committing a crime. If that is not a travesty for American justice, what is?