Chickens coming home to roost

by on April 29, 2010 at 7:30 am in History, Law | Permalink

In 2000 Dudley Hiibel was arrested and convicted of a crime solely because he refused to identify himself to a police officer.  Hiibel argued that in a free country people don't have to produce their papers just because the police demand them and he argued that his arrest was unconstitutional.  The case, Hiibel v. Sixth Judicial District Court of Nevada, went to the Supreme Court and Dahlia Lithwick, Slate's legal correspondent, made fun of libertarians who supported the plaintiff calling them hysterical and loopy.  She wrote:

It would be easier to credit the Cato and ACLU arguments if we didn't already have to hand over our ID to borrow a library book, obtain a credit card, drive a car, rent videos, obtain medical treatment, or get onto a plane. So the stark question then becomes this: Why are you willing to tell everyone but the state who you are? It's a curious sort of privacy that must be protected from nobody except the government… [Yeah, it's curious that people want to protect themselves from the one organization in society that can legally deprive them of life and liberty. AT]

The slippery-slope arguments–that this leads to a police state in which people are harassed for doing nothing–won't really fly.

Well in Arizona, it's flying now.

1 NSK April 29, 2010 at 7:47 am

Owned.

2 ziel April 29, 2010 at 7:52 am

What Dahlia meant of course is that white people are silly paranoids with their childish libertarian arguments. People of Color, on the other hand, have every reason to fear the government (except, presumably, when it’s handing out taxpayers’ money).

Dahlia was right the first time – the notion that an individual detained by police for cause need not identify himself is preposterous. This is particularly true when driving a vehicle – identification is necessary to insure the individual is properly in possession of the driving privilege.

I have no doubt the Arizona law will be struck down, but not on libertarian grounds, rather on “disparate impact” claims.

3 Joe Torben April 29, 2010 at 8:13 am

I can’t really understand the outrage about the Arizona law. How else are we going to create a police state, but with the introduction of rules that turned out to be massively effective when used in Germany in the 1930’s?

It’s not like this is going to be used against people with friends in high places, after all, so there really is nothing to worry about. And surely the freedom to randomly harrass people we suspect that we may not like is exactly the freedom that built this great country, no?

4 Bill April 29, 2010 at 8:45 am

Sorry, but the case involved the right of an officer, UPON REASONABLE SUSPICION, that the person had or was about to violate the law to ask for identification under the following statute:

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.

�������� . . . .

�������� 3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad.� Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

Racial profiling would not constitute reasonable suspicion, or if you think it does, then you should be against racial profiling.

5 lionel April 29, 2010 at 8:48 am

Libertarians that object to this are being disingenuous. They often don’t want the law enforced against illegal immigrants at all.

If this is really about the ID part of the law, let me propose the following:

How many libertarians would remove this provision if it were replaced by
a) More punitive treatment of companies and individuals proven to have hired illegals
b) Large fines on those who hire or harbor illegals claimable by whistle blowers
c) Create provisions whereby sponsors of legal immigrants are liable if said immigrants commit crimes or go on welfare
d) Much better policing of the border with more fencing and more armed guards?
e) Criminalizing illegals who vote in elections

6 josh April 29, 2010 at 9:07 am

What the hell is a free country? Free from police officers? How old are you, Alex?

7 jpmeyer April 29, 2010 at 9:19 am
8 charlie April 29, 2010 at 9:33 am

What is “looking hispanic?” Is that a suspect class? Let me give you a counterexample? Can CBP “harass” people who “look foreign-born” to provide their US identity more than white people? Granted entering the county is under a different standard, but I am not sure “looking hispanic” is a racial classification that would be protected under the equal protections.

9 Bill April 29, 2010 at 9:56 am

Andrew,

1. The Nevada case interpreted the Nevada statute which require, the ” 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 Nevada statute is not a statute that says: tell me your name, show me your identity, or you go to jail. There are predicates to the request for identity.

2. Regarding racial profiling: how do you identify an illegal immigrant. By race. Is that a reasonable basis to believe that someone has, is committing, or has committed a crime.

10 Ren April 29, 2010 at 10:13 am

Coming back from the Shenandoah last week in the middle of the day, all cars were being stopped by the state police. We had no problems, but others were being told to pull over. We asked the officer what was going on and were told that they were just checking to make sure everyone was ok to be on the road. It was not a sobriety check point. Seemed a little odd.

11 daveave April 29, 2010 at 10:15 am

I would have to disagree… this is about enforcing existing laws, not creating new ones.

I would consider myself a libertarian, not racist. I am expected to abide by the law. If I am pulled over and there is reasonable suspicion that I am drunk or in any other way breaking the law, the police have a right to detain me until I prove otherwise.

Selective prosecution of laws is not real government.

illegal immigration is causing all kinds of other issues. The feds are doing ZILCH to solve these problems, if anything they are encouraging the problems. I am all for punishing CEO’s for employing illegals. We can’t afford the lax solutions anymore.

12 Eapen Thampy April 29, 2010 at 10:32 am

Isn’t this also true in New York, where they can stop and frisk you at will?

13 Mesa April 29, 2010 at 10:46 am

Lets’ see – you get stopped driving in Arizona – have no drivers license – you speak Spanish only – and the guy asks you to produce immigration status papers. If you have them – no problem. If you can produce them later – you get a fine. If you are an illegal alien – bye bye. What the hell is wrong with that?

I think the real issue is libertarians don’t want to see illegal aliens deported – if so just say that.

Here’s a reasonable explanation of the actual law:

http://www.nytimes.com/2010/04/29/opinion/29kobach.html?hp

14 Mesa April 29, 2010 at 10:51 am

The real issue is that illegal aliens don’t have “standing” in the country. I think many would like to ascribe “rights” to them that don’t exist. It’s not feasible to run a country without knowing who belongs to it. To argue this is just high school libertarianism at it’s worst.

Do police powers get abused? – yup. It’s the price of a society bound by laws that need to be enforced somehow.

15 Borealis April 29, 2010 at 11:01 am

Who would have thought that it would be controversial that a police officer who has a reasonable basis to think a crime has been committed should investigate?

Heck, now we let machines determine that a crime has been committed and don’t even require they investigate (highway radar cameras).

16 Mommsen April 29, 2010 at 11:08 am

libert,

“2) The U.S Constitution was written not to limit the powers of the state, but rather to expand it.”

True enough; but that expansion was also limited in scope.

17 anon April 29, 2010 at 11:35 am

Isn’t that why the guy was harassed? There are also a lot of arrests for “resisting arrest.” Some are completely bogus.

Many arrests are also for “contempt of cop”.
http://en.wikipedia.org/wiki/Contempt_of_cop

What the hell is a free country? Free from police officers? How old are you, Alex?

How old are you? You seem unable to see the difference between police officers, the spear of the state, acting according to law and the Constitutional restraints on the state’s police powers, and believing that a police officer, i.e., the state, can do no wrong. Because of course the state, and police officers, never ever lie or abuse power or authority. Never ever.

Go see “10 Rules for Dealing with Police”:
http://www.cato-at-liberty.org/2010/03/26/watch-it-here-10-rules-for-dealing-with-police/

After being convicted of “contempt of cop”, I will never believe another police officer in court. Never. (And I’m a middle-class middle-aged libertarian white guy, who is now a strong supporter of jury nullification.)

18 Josh April 29, 2010 at 11:40 am

What I find most interesting about this law is that it’s the polar opposite of the health care debate from a couple months ago. This time it’s the right yelling “WE HAVE A REAL PROBLEM HERE” and the left yelling “THIS BILL ISN’T THE RIGHT SOLUTION.”

19 martin April 29, 2010 at 11:48 am

Perhaps this has already been addressed – but the whole impetus to restrict the flow of labor seems not that different from the protectionist trade tariffs erected in the 1930s to restrict the flow of goods across borders.

20 john April 29, 2010 at 12:20 pm

Maybe I misssed it…how does ethnic profiling enter into the 2000 case?

And, while we’re at it, aren’t many of these defenders of the Arizona statutes, the same people who were fearful of disclosing to the Census Bureau, how many people were residing in a house?

21 libert April 29, 2010 at 12:24 pm

POWinCA said, “The essential part of the crime of being an illegal alien is YOUR IDENTITY”

And that doesn’t disturb you? That the government is going to hunt you down simply because of “YOUR IDENTITY”?

Restricting immigration is the quintessential big government, anti-freedom, statist policy.

22 Andrew April 29, 2010 at 12:38 pm

Is this a new Keynesian jobs program: throw out non-sequiturs that beg for refutation?

Of course more citizens increase the burden on government…taxes…hullllooooo.

“1. 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.”

“Detain.” This does not say anything about identification, which as I said, was immaterial to whether or not the girl sitting in the car next to the accused was assaulted.

And Bill, the Nevada law explicitly states that the ascertainment of citizenship will happen upon “any legal contact.”

Bill, if you are right, then the judge’s statement is an overbroad interpretation of the matter.

While I don’t think this is so much a slippery slope as universally slimy politicians, that is where Alex is exactly on the money. First, the government opens the door wide open to “legal contact” and then everything else flows “perfectly reasonably” from there…until it is a non-white.

23 Bill April 29, 2010 at 1:33 pm

This is a bad post coming home to roost.

The premise of this post was that the Nevada decision permitted the police to arrest someone for failing to identify themselves. That is false. The Nevada statute required reasonable suspicion that a person had, was or is violating a law.

So, people go from there, without also looking at the US Supreme court decision in the case.

So, for the non-lawyers out there, here is the official sylabus of the Supreme Court’s decision for you to read for yourself. As you read it, think about the Arizona statute:

“The officer’s conduct did not violate Hiibel’s Fourth Amendment rights. Ordinarily, an investigating officer is free to ask a person for identification without implicating the Amendment. INS v. Delgado, 466 U. S. 210, 216. Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34. The Nevada statute is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests. See Delaware v. Prouse, 440 U. S. 648, 654. An identity request has an immediate relation to the Terry stop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location. Hiibel argues unpersuasively that the statute circumvents the probable-cause requirement by allowing an officer to arrest a person for being suspicious, thereby creating an impermissible risk of arbitrary police conduct. These familiar concerns underlay Kolender, Brown, and Papachristou. They are met by the requirement that a Terry stop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U. S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U. S. 811, 817. The request in this case was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence.”

24 JohnMcG April 29, 2010 at 1:48 pm

The Nevada statute required reasonable suspicion that a person had, was or is violating a law.

As does the Arizona statute.

25 Careless April 29, 2010 at 2:26 pm

Perhaps this has already been addressed – but the whole impetus to restrict the flow of labor seems not that different from the protectionist trade tariffs erected in the 1930s to restrict the flow of goods across borders.

Policy that raises prices: likely bad. Policy that raises wages: likely _________

26 Doc Merlin April 29, 2010 at 2:28 pm

In this case, identifying yourself is admitting guilt. So, it runs into 5th amendment problems. The issue isn’t the AZ law though, which just enforces the federal law. It is the federal immigration law itself.

27 Jim April 29, 2010 at 2:45 pm

It’s very simple:

If you cannot accept a policy under which people have to show they are citizens when police have reason to believe they are not citizens, you might as well come out and say “I am against enforcement of the border, period.”

And no, sorry — being Latino is not reason for police to believe you are not a citizen. As is explicitly spelled out under the law.

28 Greg Ransom April 29, 2010 at 3:12 pm

Bullshit. This isn’t the Arizona law.

29 Tell April 29, 2010 at 4:47 pm

“I would consider myself a libertarian, not racist. I am expected to abide by the law. If I am pulled over and there is reasonable suspicion that I am drunk or in any other way breaking the law, the police have a right to detain me until I prove otherwise.”

daveave, that is a far higher standard than we’ve ever had. Proving innocence is often impossible. It isn’t a libertarian position at all.

30 Nick L. April 29, 2010 at 6:10 pm

My question is what sort of activity counts as a reasonable suspicion of being an illegal immigrant? Besides a cop literally watching someone crossing the border, the only possibilities I can think of always end in resorting to racial profiling. Or maybe they wave banners saying “I’m not here legally”. That might fit the bill.

31 Nick L. April 29, 2010 at 7:14 pm

“It’s actually the basis of property rights.”

How so? As far as defining personal property rights is concerned, immigration is irrelevant. If you are going at some sort of factors of production/property value angle, existing landowners should see rents increase with more immigration, and therefore the status quo should be in favor of loose immigration.

32 Bernard Yomtov April 29, 2010 at 8:07 pm

I agree with Alex that this is a bad law. But I also agree with JJ that choosing Lithwick as the first villain to identify is very strange. The people behind this law are not liberal Democrats.

33 Careless April 29, 2010 at 10:52 pm

The people behind this law are not liberal Democrats.

… yes, and that’s the point of the post. Now that it’s the liberal goal of giving millions of illegal immigrants the right to vote for Democrats, people like her think that asking for ID is a terrible, horrible thing.

Libertarianish blogs get the worst post-hating commenters

34 TimG April 30, 2010 at 1:18 am

@ Bock

I’m curious how this will affect the Arizona housing market. New houses are built almost entirely by illegal immigrants. Whenever the demand for new houses comes back they are going to be a whole lot more expensive.

Can we cross that bridge when we get there? A couple of other points, are houses really built almost entirely by illegal immigrants? Second I always thought that most of the cost of house was location location location, ie in that good school district that isn’t drained by a whole bunch of poor performing ESL students.

35 neil April 30, 2010 at 10:27 am

My wife is the only other person who can legally take money out of my bank account, and yet I am more worried about being robbed by strangers than by her.

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