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Thursday, March 31, 2016

Mass surveillance silences minority opinions, according to study

OFF THE WIRE


 
A new study shows that knowledge of government surveillance causes people to self-censor their dissenting opinions online. The research offers a sobering look at the oft-touted "democratizing" effect of social media and Internet access that bolsters minority opinion.

The study, published in Journalism and Mass Communication Quarterly, studied the effects of subtle reminders of mass surveillance on its subjects. The majority of participants reacted by suppressing opinions that they perceived to be in the minority. This research illustrates the silencing effect of participants’ dissenting opinions in the wake of widespread knowledge of government surveillance, as revealed by whistleblower Edward Snowden in 2013.

The “spiral of silence” is a well-researched phenomenon in which people suppress unpopular opinions to fit in and avoid social isolation. It has been looked at in the context of social media and the echo-chamber effect, in which we tailor our opinions to fit the online activity of our Facebook and Twitter friends. But this study adds a new layer by explicitly examining how government surveillance affects self-censorship.

Participants in the study were first surveyed about their political beliefs, personality traits and online activity, to create a psychological profile for each person. A random sample group was then subtly reminded of government surveillance, followed by everyone in the study being shown a neutral, fictional headline stating that U.S. airstrikes had targeted the Islamic State in Iraq. Subjects were then asked a series of questions about their attitudes toward the hypothetical news event, such as how they think most Americans would feel about it and whether they would publicly voice their opinion on the topic. The majority of those primed with surveillance information were less likely to speak out about their more nonconformist ideas, including those assessed as less likely to self-censor based on their psychological profile.

Elizabeth Stoycheff, lead researcher of the study and assistant professor at Wayne State University, is disturbed by her findings.

“So many people I've talked with say they don't care about online surveillance because they don't break any laws and don't have anything to hide. And I find these rationales deeply troubling,” she said.

She said that participants who shared the “nothing to hide” belief, those who tended to support mass surveillance as necessary for national security, were the most likely to silence their minority opinions.

“The fact that the 'nothing to hide' individuals experience a significant chilling effect speaks to how online privacy is much bigger than the mere lawfulness of one's actions. It's about a fundamental human right to have control over one's self-presentation and image, in private, and now, in search histories and metadata,” she said.


Stoycheff is also concerned about the quietly oppressive behavior of self-censorship
“It concerns me that surveillance seems to be enabling a culture of self-censorship because it further disenfranchises minority groups. And it is difficult to protect and extend the rights of these vulnerable populations when their voices aren't part of the discussion. Democracy thrives on a diversity of ideas, and self-censorship starves it,” she said. “Shifting this discussion so Americans understand that civil liberties are just as fundamental to the country's long-term well-being as thwarting very rare terrorist attacks is a necessary move.”


Stoycheff has written about the capacity of online sharing tools to inspire democratic change. But the results of this study have caused her views to change. "The adoption of surveillance techniques, by both the government and private sectors, undermines the Internet's ability to serve as a neutral platform for honest and open deliberation. It begins to strip away the
Internet's ability to serve as a venue for all voices, instead catering only to the most dominant," she said. She received no outside funding for the research or publication of this study, she said.
The Snowden files decoded
Play Video6:11

Journalists from The Washington Post shed light on how and why they reported on Edward Snowden blowing the whistle on massive NSA surveillance programs. (The Washington Post)

Stop and identify statutes

OFF THE WIRE
From Wikipedia, the free encyclopedia
 States (colored red) in which Stop and Identify statutes are in effect as of February 20th, 2013.
"Stop and identify" statutes are statute laws in the United States that authorize police[1] to legally obtain the identification of someone whom they reasonably suspect has committed a crime. If the person is not reasonably suspected of committing a crime, they are not required to provide identification, even in states with stop and identify statutes.
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. Terry v. Ohio, 392 U.S. 1 (1968) established that it is constitutionally permissible for police to temporarily detain a person based on reasonable suspicion that a crime has been committed, and to conduct a search for weapons based on a reasonable belief that the person is armed. The question whether it is constitutionally permissible for the police to demand that a detainee provide his or her name was considered by the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), which held that the name disclosure did not violate the Fourth Amendment prohibition on unreasonable searches and seizures. The Hiibel Court also held that, because Hiibel had no reasonable belief that his name would be used to incriminate him, the name disclosure did not violate the Fifth Amendment right against self-incrimination; however, the Court left open the possibility that Fifth Amendment right might apply in situations where there was a reasonable belief that giving a name could be incriminating.[2] The Court accepted the Nevada supreme court's interpretation of the Nevada statute that a detained person could satisfy the Nevada law by simply stating his name. The Court did not rule on whether particular identification cards could be required, though it did mention one state's law requiring "credible and reliable" identification had been struck down for vagueness.[3]

Contents


Police–citizen encounters

In the United States, interactions between police and citizens fall into three general categories: consensual ("contact" or "conversation"), detention (often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), or arrest. "Stop and identify" laws pertain to detentions.
Different obligations apply to drivers of motor vehicles, who generally are required by state vehicle codes to present a driver’s license to police upon request.

Consensual

At any time, police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may suspect involvement in a crime, but lack "specific and articulable facts"[4] that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify himself or answer any other questions, and may leave at any time.[5] Police are not usually required to tell a person that he is free to decline to answer questions and go about his business;[6] however, a person can usually determine whether the interaction is consensual by asking, "Am I free to go?"[7][8]

Detention

A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.[9]
Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority. In Terry v. Ohio, the U.S. Supreme Court established that police may conduct a limited search for weapons (known as a "frisk") if they reasonably suspect that the person to be detained may be armed and dangerous.
Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.[10] However, many states have "stop and identify" laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.
Before Hiibel, it was unresolved whether a detainee could be arrested and prosecuted for refusing to disclose his name. Authority on this issue was split among the federal circuit courts of appeal,[11] and the U.S. Supreme Court twice expressly refused to address the question.[12] In Hiibel, the Court held, in a 5–4 decision, that a Nevada "stop and identify" law did not violate the United States Constitution. The Court’s opinion implied that a detainee was not required to produce written identification, but could satisfy the requirement merely by stating his name. Some "stop and identify" laws do not require that a detainee identify himself, but allow refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest. In some states, providing a false name is an offense.[13]
As of February 2011, the Supreme Court has not addressed the validity of requirements that a detainee provide information other than his name, however some states such as Arizona have specifically codified that a detained person is not required to provide any information aside from their full name.

Arrest

A detention requires only that police have reasonable suspicion that a person is involved in criminal activity. However, to make an arrest, an officer must have probable cause to believe that the person has committed a crime. Some states require police to inform the person of the intent to make the arrest and the cause for the arrest.[14] But it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, his or her belongings, and his or her immediate surroundings.
Whether an arrested person must identify himself may depend on the jurisdiction in which the arrest occurs. If a person is under arrest and police wish to question him, they are required to inform the person of his Fifth-Amendment right to remain silent by giving a Miranda warning. However, Miranda does not apply to biographical data necessary to complete booking.[15][16] It is not clear whether a "stop and identify" law could compel giving one’s name after being arrested, although some states have laws that specifically require an arrested person to give his name and other biographical information,[17] and some state courts[18][19] have held that refusal to give one’s name constitutes obstructing a public officer. As a practical matter, an arrested person who refused to give his name would have little chance of obtaining a prompt release.

Obligation to identify

States with "stop and identify" laws
Alabama Ala. Code §15-5-30
Arizona Ari. Rev. Stat. Tit. 13, §2412 (enacted 2005) & Tit. 28, §1595
Arkansas Ark. Code Ann. [1]§ 5-71-213 - Loitering
Colorado Colo. Rev. Stat. §16-3-103(1)
Delaware Del. Code Ann., Tit. 11, §§1902, 1321(6)
Florida Fla. Stat. §901.151 (Stop and Frisk Law); §856.021(2) (loitering and prowling)
Georgia Ga. Code Ann. §16-11-36(b) (loitering)
Illinois Ill. Comp. Stat., ch. 725, §5/107-14
Indiana Indiana Code §34-28-5-3.5
Kansas Kan. Stat. Ann. §22-2402(1)
Louisiana La. Code Crim. Proc. Ann., Art. 215.1(A); La. Rev. Stat. 14:108(B)(1)(c)
Missouri (Kansas City Only Mo. Rev. Stat. §84.710(2)
Montana Mont. Code Ann. §46-5-401
Nebraska Neb. Rev. Stat. §29-829
Nevada Nev. Rev. Stat. §171.123
New Hampshire N.H. Rev. Stat. Ann. §594:2, §644:6
New Mexico N.M. Stat. Ann. §30-22-3
New York N.Y. Crim. Proc. Law §140.50
North Dakota N.D. Cent. Code §29-29-21 (PDF)
Ohio Ohio Rev. Code §2921.29 (enacted 2006)
Rhode Island R.I. Gen. Laws §12-7-1
Utah Utah Code Ann. §77-7-15
Vermont Vt. Stat. Ann., Tit. 24, §1983
Wisconsin Wis. Stat. §968.24
While Wisconsin statutes allow law enforcement officers to "demand" ID, there is no statutory requirement to provide them ID nor is there a penalty for refusing to, hence Wisconsin is not a must ID state. Case law cited in Wisconsin's Stop and Identify statute does, however, state "The principles of Terry permit a state to require a suspect to disclose his or her name in the course of a Terry stop and allow imposing criminal penalties for failing to do so".
Neither is Illinois, since the Illinois Supreme Court Decision in People v. Fernandez, 2011 IL App (2d) 100473, which specifically states....... that section 107-14 is found in the Code of Criminal Procedure of 1963, not the Criminal Code of 1961, and governs the conduct of police officers. The fact remains that there is no corresponding duty in the Criminal Code of 1961 for a suspect to identify himself or herself.
By contrast, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 181 (2004), a Nevada statute (Nev. Rev. Stat. § 171.123 (2003)) specifically required that a person subjected to a Terry stop “shall identify himself.” The Supreme Court held that the statute was constitutional.
The Illinois statute does not specifically require a suspect to identify himself or herself. Because defendant could not be convicted of obstruction for merely refusing to identify himself and refusing to provide identification,
As of February 2011, there is no U.S. federal law requiring that an individual identify himself during a Terry stop, but Hiibel held that states may enact such laws, provided the law requires the officer to have reasonable and articulable suspicion of criminal involvement,[20] and 24 states have done so.[21] The opinion in Hiibel implied that persons detained by police in jurisdictions with constitutional[22] "stop and identify" laws listed are obligated to identify themselves,[23] and that persons detained in other jurisdictions are not.[24] The issue may not be that simple, however, for several reasons:
  • The wording of "stop and identify" laws varies considerably from state to state.
  • Noncompliance with a "stop and identify" law that does not explicitly impose a penalty may constitute violation of another law, such as one to the effect of "resisting, obstructing, or delaying a peace officer".
  • State courts have made varying interpretations of both "stop and identify" and "obstructing" laws.

Variations in "stop and identify" laws

  • Four states’ laws (Arizona, Indiana, Louisiana, and Nevada) explicitly impose an obligation to provide identifying information.
  • Fifteen states grant police authority to ask questions, with varying wording, but do not explicitly impose an obligation to respond:
  • In Montana, police "may request" identifying information;
  • In Ohio, identifying information may be required "when requested"; an obligation exists only when the police suspect a person is committing, has committed, or is about to commit a criminal offense, is witness to a felony offense, or is witness to an attempt or conspiracy to commit a felony offense;
  • In 12 states (Alabama, Delaware, Illinois, Kansas, Missouri, Nebraska, New Hampshire, New York, North Dakota, Rhode Island, Utah, Wisconsin), police "may demand" identifying information;
  • In Colorado, police "may require" identifying information of a person.
  • Identifying information varies, but typically includes
  • Name, address, and an explanation of the person’s actions;
  • In some cases it also includes the person’s intended destination, the person’s date of birth (Indiana and Ohio), or written identification if available (Colorado). Ohio does not require the person's intended destination. Ohio requires only Name, Address, or Date Of Birth. Date of birth is NOT required if the age of the person is an element to the crime (such as underage drinking, curfew violation, etc...) that the person is reasonably suspected of.[25] Indiana requires either name, address, and date of birth, or driver's license, if on the person's possession, and only applies if the person was stopped for an infraction or ordinance violation.[26]
  • Arizona’s law, apparently written specifically to codify the holding in Hiibel, requires a person’s "true full name".
  • Nevada’s law, which requires a person to "identify himself or herself", apparently requires only that the person state his or her name.
  • Texas’s law requires a person to provide their name, residence address and date of birth if lawfully arrested and asked by police. (A detained person or witness of a crime is not required to provide any identifying information, however it is a crime for a detained person or witness to give a false name.)
  • In five states (Arkansas, Florida, Georgia, New Hampshire, and Rhode Island), failure to identify oneself is one factor to be considered in a decision to arrest. In all but Rhode Island, the consideration arises in the context of loitering or prowling.
  • Seven states (Arizona, Florida, Indiana, Louisiana, New Mexico, Ohio, and Vermont) explicitly impose a criminal penalty for noncompliance with the obligation to identify oneself.
  • Virginia makes it a nonjailable misdemeanor to refuse to identify oneself to a conservator of the peace when one is at the scene of a breach of the peace witnessed by that conservator.[citation needed]
As of February 2011, the validity of a law requiring that a person detained provide anything more than stating his or her name has not come before the U.S. Supreme Court.

Interaction with other laws

In states whose "stop and identify laws" do not directly impose penalties, a lawful arrest must be for violation of some other law, such as one to the effect of "resisting, obstructing, or delaying a peace officer". For example, the Nevada "stop and identify" law challenged in Hiibel did not impose a penalty on a person who refused to comply, but the Justice Court of Union Township, Nevada, determined that Hiibel’s refusal to identify himself[27] constituted a violation of Nevada’s "obstructing" law.[28] A similar conclusion regarding the interaction between Utah’s "stop and identify" and "obstructing" laws was reached in Oliver v. Woods (10th Cir. 2000).

Interpretation by courts

"Stop and identify" laws in different states that appear to be nearly identical may be different in effect because of interpretations by state courts. For example, California’s "stop and identify" law, Penal Code §647(e) had wording[29][30] similar to the Nevada law upheld in Hiibel, but a California appellate court, in People v. Solomon (1973), 33 Cal.App.3d 429 construed the law to require "credible and reliable" identification that carries a "reasonable assurance" of its authenticity. Using this construction, the U.S. Supreme Court held the law to be void for vagueness in Kolender v. Lawson, 461 U.S. 352 (1983).[31]
Some courts have recognized a distinction authorizing police to demand identifying information and specifically imposing an obligation of a suspect to respond.[32] Other courts have apparently interpreted demand to impose an obligation on the detainee to comply.[33][34]
Wording and interpretation by state courts of "obstructing" laws also varies; for example, New York’s "obstructing" law[35] apparently requires physical rather than simply verbal obstruction;[36][37] likewise, a violation of the Colorado "obstructing" law appears to require use or threat of use of physical force. However, the Colorado Supreme Court held in Dempsey v. People, No. 04SC362 (2005) (PDF) that refusing to provide identification was an element in the "totality of the circumstances" that could constitute obstructing an officer, even when actual physical interference was not employed.[38] Utah’s "obstructing" law does not require a physical act, but merely a failure to follow a "lawful order . . . necessary to effect the . . . detention";[39] a divided court in Oliver v. Woods concluded that failure to present identification constituted a violation of that law.[34]
It is not universally agreed that, absent a "stop and identify law", there is no obligation for a detainee to identify himself. For example, as the U.S. Supreme Court noted in Hiibel, California’s "stop and identify" statute was voided in Kolender v. Lawson. But in People v. Long,[40] decided four years after Kolender, a California appellate court found no constitutional impropriety in a police officer’s demand for written identification from a detainee. The issue before the Long court was a request for suppression of evidence uncovered in a search of the defendant’s wallet, so the issue of refusal to present identification was not directly addressed; however some cite Long in maintaining that refusal to present written identification constitutes obstructing an officer.[41] Others disagree, and maintain that persons detained by police in California cannot be compelled to identify themselves.[42]
Some courts, e.g., State v. Flynn (Wis. 1979)[43] and People v. Loudermilk (Calif. 1987)[44] have held that police may perform a search for written identification if a suspect refuses to provide it; a later California decision, People v. Garcia (2006) strongly disagreed.[45]

Recommendations of legal-aid organizations

Some legal organizations, such as the National Lawyers Guild and the ACLU of Northern California, recommend to either remain silent or to identify oneself whether or not a jurisdiction has a "stop and identify" law:
And in any state, police do not always follow the law, and refusing to give your name may make them suspicious and lead to your arrest, so use your judgment. If you fear that your name may be incriminating, you can claim the right to remain silent, and if you are arrested, this may help you later. Giving a false name could be a crime.[46]
In a more recent pamphlet, the ACLU of Northern California elaborated on this further, recommending that a person detained by police should:
. . . give your name and the information on your drivers’ license. If you don’t, you may be arrested, even though the arrest may be illegal.[47]

Other countries

Many countries allow police to demand identification and arrest people who do not carry any. Normally these countries provide all residents with national identity cards, which have the identity information the police would want to know, including citizenship. Foreign visitors need to have their passport available to show at all times. In some cases national identity cards from certain other countries are accepted.
In Portugal it is compulsory to carry the state ID card at all times, and a person must show it to police every time it is requested. The only case where this form of ID is not required is for a uniformed member of the armed forces, in which situation the armed-forces ID card can be presented in place of the state's ID card.

See also

Notes


  • Although police and police officer are used throughout this article, most "stop and identify" laws use the term peace officer (or sometimes law enforcement officer). In general, peace officers are state civil officers charged with preserving the public peace and granted the authority to do so. Peace officers normally include police officers, sheriffs and sheriffs' deputies, marshals, constables, and often many other persons; those included vary among the states.
  • In upholding Hiibel's conviction, the Court noted,
    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.... As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. — 542 U.S. at 190
    But the Court did leave open the possibility of different circumstances:
    Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here. — 542 U.S. at 191
  • Writing for the Court in Hiibel v. Sixth Judicial District Court of Nevada, Justice Kennedy stated,
    Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer "credible and reliable" identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. — 542 U.S. at 184–185
    Justice Kennedy continued,
    As we understand it, the statute does not require a suspect to give the officer a drivers license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means—a choice, we assume, that the suspect may make—the statute is satisfied and no violation occurs. — 542 U.S. at 185
    Writing for the Nevada Supreme Court in Hiibel v. Dist. Ct., Chief Justice Young said,
    The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists. — 118 Nev. 868 at 875
  • Writing for the Court in Terry v. Ohio, Chief Justice Warren stated,
    And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. — 392 U.S. at 21
  • Writing for the Court in Florida v. Royer 460 U.S. 491 (1983), Justice White stated,
    The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. — 460 U.S. at 497–498
  • Writing for the Court in United States v. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated,
    Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. — 446 U.S. at 555
  • The ACLU publication Know Your Rights When Encountering Law Enforcement states,
    You can say, "I do not want to talk to you" and walk away calmly. Or, if you do not feel comfortable doing that, you can ask if you are free to go. If the answer is yes, you can consider just walking away. Do not run from the officer. If the officer says you are not under arrest, but you are not free to go, then you are being detained.
  • If the encounter is consensual, a person approached need not actually leave to terminate the encounter, but may simply ignore police. In Michigan v. Chesternut, 486 U.S. 567 (1988), Justice Blackmun explained the Court’s holding that Chesternut had not been detained, stating that the police conduct "would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." — 486 U.S. at 569
  • Writing for the Court in United States v. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated:
    We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. — 446 U.S. at 554
  • In a concurring opinion in Terry v. Ohio, Justice White stated that a person detained can be questioned but is "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." This opinion, in turn, was cited in many later cases, including Berkemer v. McCarty, 468 U.S. 420 (1984).
  • In describing the split authority among the federal appellate court circuits in Hiibel v. Dist. Ct., the Nevada Supreme Court stated:
    In Oliver v. Woods, [209 F.3d 1179, 1190 (10th Cir. 2000)] the Tenth Circuit Court of Appeals upheld a Utah statute that requires individuals to produce identification to an officer during an investigatory stop. However, in Carey v. Nevada Gaming Control Board [279 F.3d 873, 881 (9th Cir. 2002)], the Ninth Circuit Court of Appeals held that NRS 171.123(3) violates the Fourth Amendment because " ‘the serious intrusion on personal security outweighs the mere possibility that identification [might] provide a link leading to arrest.’ "
  • In Hiibel v. Dist. Ct., the Nevada Supreme Court noted that the U.S. Supreme Court declined to address the issue of identification in Brown v. Texas, 443 U.S. 47 (1979), at 53 n.3 ("We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements."); and Kolender v. Lawson, 461 U.S. 352 (1983), 361–62 n.10 (holding that a California statute was unconstitutional on vagueness grounds, but refusing to consider whether the statute violated the Fourth Amendment).
  • Texas does not require a detainee to identify himself unless he has been lawfully arrested, but does make it a crime to provide a false name. Texas Penal Code § 38.02 reads, in relevant part,
    (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
  • California Penal Code § 841, states, in relevant part,
    The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it . . .
  • In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Court cited the Brief for United States as Amicus Curiae 12 quoting United States v. Horton, 873 F.2d 180, 181, n. 2 [CA8 1989]),
    the questions fall within a "routine booking question" exception which exempts from Miranda's coverage questions to secure the "'biographical data necessary to complete booking or pretrial services.'" — 496 U.S. at 601–602
  • The Fifth Amendment prohibits only communication that is testimonial, incriminating, and compelled; see United States v. Hubbell, 530 U.S. 27 (2000), at 34–38. Hiibel held that, in the circumstances of the case, a person’s name is not incriminating, and consequently is not protected by the Fifth-Amendment privilege against self-incrimination. — 530 U.S. at 34–38
  • Texas Penal Code, Title 8, §38.02(a), reads
    A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
    Giving false information is a related, and usually more serious offense (under Subsection [b], noted above), and applies to detainees as well as arrestees.
  • In People v. Quiroga (1993) 16 Cal.App.4th 961, the Court held that refusal to disclose one’s identity following a felony arrest constituted obstructing an officer:
    These statutory provisions lead to the conclusion that a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of [California] Penal Code section 148. . . . Section 148 can reasonably be construed as applying to nondisclosure of identity following arrest for felonies, but not minor offenses, if this exception applies to the provisions cited above dealing with arrests for minor offenses. — 16 Cal.App.4th 961, 970
    Similar refusal following arrest for a misdemeanor or infraction did not violate the statute because the Legislature had "established other ways of dealing with such nondisclosure".
  • In Burkes v. State (Fla. 2d DCA 1998), Case No. 97-00552, the Court, in affirming the appellant’s conviction for violation of § 843.02, Florida Statutes, "Resisting officer without violence to his or her person", stated:
    The most compelling argument we discern for answering this question in the affirmative is that the right to remain silent means just that and has no exceptions. We, nevertheless, conclude that after an individual has been lawfully arrested, he must provide his name or otherwise identify himself when asked by law enforcement officers.
  • The Hiibel Court held, "The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop." — 542 U.S. at 187
  • The opinion in Hiibel included a list of 21 states with "stop and identify" laws. For some reason, the Indiana law was not included in the list; the Arizona and Ohio laws have been enacted since Hiibel was decided. The Texas law only applies to arrested persons.
  • "Constitutional" means that the law requires the officer to have reasonable and articulable suspicion of criminal involvement. See Hiibel.
  • Writing for the Court in Hiibel, Justice Kennedy stated, "the source of the legal obligation [to identify oneself] arises from Nevada state law". — 542 U.S. at 187
  • In Hiibel, Justice Kennedy stated, "In other States, a suspect may decline to identify himself without penalty.″ — 542 U.S. at 183
  • http://codes.ohio.gov/orc/2921.29
  • http://www.in.gov/legislative/ic/2010/title34/ar28/ch5.html
  • The opinion noted that Hiibel was asked to provide identification, which the Court understood as a request to produce a driver’s license or some other form of written identification, 11 different times; however, it did not indicate that Hiibel was ever asked simply to identify himself.
  • NRS §199.280 provides a penalty for a person who "willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office"
  • California's stop-and-identify law in Penal Code §647(e) was repealed several years after 1983 and the sub-sections re-lettered, so the current Penal Code §647(e) is what used to be Penal Code §647(f). Also, do not confuse Penal Code §647(e) with Penal Code §647e.
  • (voided in Kolender v. Lawson), read, in relevant part,
    Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (e) who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.
  • In voiding California Penal Code §647(e) in Kolender v. Lawson, Justice O’Connor, writing for the Court, noted that
    Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute. — 461 U.S. at 358
  • Writing for the Court in People v. Love, 318 Ill.App.3d 534 (2000), Justice O’Brien stated,
    The State next argues that the officer’s order was a justifiable means of compelling defendant to state his name pursuant to section 107-14, which provides that an officer making a Terry stop may "demand the name and address of the person and an explanation of his actions." 725 ILCS 5/107-14 (West 1992). However, while section 107-14 states that an officer may "demand" the defendant’s name, it does not provide that the officer may compel a response. Further, the United States Supreme Court has stated in the context of a Terry stop: "[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond." (Emphasis added.) Berkemer v. McCarty, 468 U.S. 420, 438, 82 L. Ed. 2d 317, 334, 104 S. Ct. 3138, 3150 (1984).
    Noting Berkemer v. McCarty (and Justice White’s concurring opinion in Terry that Berkemer quoted), the Hiibel Court stated, "We do not read these statements as controlling" (542 U.S. at 187), so Love is probably weakened to the extent that it relies on Berkemer.
  • In Cady v. Sheahan (7th Cir. 2006), the Court stated,
    In Hiibel, the Supreme Court held that states are permitted to statutorily authorize the demand for identification during a Terry stop, and to require compliance with such demand. 542 U.S. at 188, 124 S.Ct. 2451. Cady’s identity was relevant to the purpose of the stop and the officers did not exceed the scope of the stop by requesting identification. [footnotes omitted]
  • Writing for the Court in Oliver v. Woods, 209 F.3d 1179 (10th Cir. 2000), Judge Brorby stated,
    Section 76-8-305 does not require the use of force; mere refusal to perform any act required by a lawful order necessary to effect the detention is sufficient to constitute a violation of § 76-8-305. Moreover, an individual who merely refuses to refrain from performing any act that would impede the arrest or detention violates this section. . . . Thus, Officer Woods gave a lawful order when he told Mr. Oliver to present identification and to remain in the parking lot while he conducted the investigation. By refusing to present identification, Mr. Oliver refused to perform an act required by lawful order, necessary to effect the detention.
  • New Yorks "obstructing" law, NY Consolidated Laws Penal (PEN) §195.05, reads, in relevant part,
    A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function, or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act
  • In People v. Offen, 408 N.Y.S.2d 914, 96 Misc.2d 147 (1978), Judge Hertz stated,
    An essential element of the crime of obstructing governmental administration, to be charged in an information, must be an act of either (1) intimidation or (2) physical force or interference or (3) an independently unlawful act.
    Plainly, ignoring an officer’s request for identification is not a crime, nor does that act supply any such element. Though it is clear that such conduct risks pursuit and arrest, no crime has been charged here. — 96 Misc.2d at 150
  • See When Do You Have to Give Your Name at the RNC Protests? under External links for an analysis of New York’s "stop and identify" and "obstructing" laws by Just Law Collective lawyer Katya Komisaruk.
  • Colorado’s "obstructing" law, Colorado Revised Statutes §18-8-104(1), reads, in relevant part,
    A person commits obstructing a peace officer . . . when by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority.
  • Utah’s "obstructing" law, Utah Code §76-8-305, reads as follows:
    Interference with arresting officer.
    A person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
    (1) use of force or any weapon;
    (2) the arrested person’s refusal to perform any act required by lawful order:
    (a) necessary to effect the arrest or detention; and
    (b) made by a peace officer involved in the arrest or detention; or
    (3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.
  • In People v. Long (1987) 189 Cal.App.3d 77, Judge Agliano wrote,
    The voluntary display of identification is a routine experience for most of us. Measured against the obvious and substantial need for police recording the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. In addition, defendant’s oral statement of his name was suspect when he insisted he had no identification while appearing to carry a wallet and, in addition, he seemed intoxicated.
  • Shortly after Hiibel was decided, the Alameda County (California) District Attorney's Office provided a case analysis (PDF) in the 2004 edition of Point of View maintaining that refusal to identify oneself and provide written identification (if available) constitutes a violation of Penal Code §148(a)(1), resisting, delaying, or obstructing an officer.
  • The California Peace Officers Legal Sourcebook ("CPOLS"; written by the office of the California Attorney General) maintains that failure to identify oneself does not constitute a violation of California Penal Code §148(a)(1), resisting, delaying, or obstructing a peace officer:
    Unlike Nevada and 20 other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code Section 148. (Rev. 1/08, p. 2.14a)
  • In State v. Flynn (1979) 92 Wis.2d 427 [285 N.W.2d 710, 718], cert. den. 449 U.S. 846, the Wisconsin Supreme Court held that the Terry limitation of a search "to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (392 U.S. at 29) was limited to the specific circumstances of Terry. Chief Justice Beilfuss wrote,
    It is clear from the language itself that the court’s holding in Terry was limited to the precise situation before it. The court did not say that the sole justification for any search on less than probable cause is the protection of the police officer and others, but that that was the sole justification of the search in the situation then before it. The situation before us is significantly different.
  • In People v. Loudermilk (1987) 195 Cal.App.3d 996, Judge Low stated,
    Neither case [Kolender v. Lawson or Brown v. Texas] could be interpreted to prevent a police officer from demanding that a Terry suspect produce proof of identification. Further, nothing in those or other cases cited by defendant prevents an officer from seizing a wallet found during a lawful patdown search after that suspect has lied to the officer that he had no identification. — 195 Cal.App.3d at 1003
    Judge Low noted the similarity to Flynn, and continued,
    We must emphasize that we do not hold that a suspect may be detained and searched merely because he either refused to identify himself or refused to produce proof of identification. Nor do we hold that each time an officer conducts a Terry stop he may immediately conduct a search for identification. The rule we announce does not provide officers with unfettered discretion and does not open citizens to harassment. — 195 Cal.App.3d at 1004
  • In People v. Garcia (2006) 145 Cal.App.4th 782, Judge Yegan, noting State v. Flynn (Wis. 1979) and State v. Wilcox (N.J. 1981), stated,
    We need not look to other jurisdictions to decide this case. We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of Terry v. Ohio, supra, which we could not and would not undertake even if we were so inclined. Here, the record is devoid of any concern that appellant was armed and dangerous. The sole reason for the patdown was to gather evidence of identification.
    A fair reading of Terry v. Ohio, and its reference to the lower court opinion in State v. Terry show that the "frisk" allowable upon a proper showing was " ‘. . . only a "frisk" for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by requirements of the Fourth Amendment, and probable cause is essential.’ " (Terry v. Ohio, supra, 392 U.S. at p. 16, fn. 12 [20 L. Ed. 2d at p. 903, fn. 12.) Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161 [pat-down search "only" for weapons].) If stare decisis means anything (and it does) and if the word only means only (and it does), the trial court was required to grant this suppression motion as a matter of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) — 145 Cal.App.4th at 788
  • "Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers" (pdf). National Lawyers Guild, S.F. Bay Area Chapter; ACLU of Northern California; American Arab Anti-Discrimination Committee. August 2004. Retrieved 2012-02-07.
  • "Your Rights and the Police". ACLU of Northern California. Retrieved 2014-07-10.

    BABE OF THE DAY

    Wednesday, March 30, 2016

    Which one you want?

    Accessibility for screenreader Home Page Politics Opinions Sports Local National World Business Tech Lifestyle Entertainment Crosswords Video Photography Washington Post Live Live Chats Real Estate Cars Jobs WP BrandConnect Classifieds Partners washingtonpost.com 1996-2016 The Washington Post Terms of Service Privacy Policy Submissions and Discussion Policy RSS Terms of Service Ad Choices Wonkblog The feds have resumed a controversial program that lets cops take stuff and keep it

    OFF THE WIRE



    The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.
    The "Equitable Sharing Program" gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.
    The Justice Department had suspended payments under this program in December, due to budget cuts included in last year's spending bill.
    "In the months since we made the difficult decision to defer equitable sharing payments because of the $1.2 billion rescinded from the Asset Forfeiture Fund, the financial solvency of the fund has improved to the point where it is no longer necessary to continue deferring equitable sharing payments," spokesman Peter J. Carr said in an email Monday.
    While he didn't specify exactly where the new funding came from, Carr noted that the program is partly funded by the cash and other property seized under the program.
    "The Asset Forfeiture Fund acts in many ways like a revolving fund," he explained in a follow-up email. "Forfeited proceeds are being deposited throughout the year to replenish the funds that are simultaneously flowing out of the Asset Forfeiture Fund to pay for approved agency expenses." He noted that when the Justice Department announced the suspension  in December, it remained "very eager to resume payments as soon as it is fiscally feasible to do so."
    Asset forfeiture is a contentious practice that lets police seize and keep cash Asset forfeiture is a contentious practice that lets police seize and keep cash and property from people who are never convicted of wrongdoing — and in many cases, never charged. Studies have found that use of the practice has exploded in recent years, prompting concern that, in some cases, police are motivated more by profit and less by justice.

    A wide-ranging Washington Post investigation in 2014 found that police had seized $2.5 billion in cash alone without warrants or indictments since 2001. In response, then-Attorney General Eric Holder announced new restrictions on some federal asset forfeiture practices. These restrictions were meant to limit the ability of state and local law enforcement officials to choose more lenient federal forfeiture guidelines over state law.

    But critics say the reforms don't go far enough, and still leave discretion for local authorities to choose more permissive federal laws by acting as part of a joint task force with federal authorities.

    Asset forfeiture is fast growing -- in 2014, for instance, federal authorities seized more than $5 billion in assets. That's more than the value of assets lost in every single burglary that year.


    Reformers had hoped that the suspension of the program in December was a signal that the Justice Department was looking for ways to rein in the practice. But that no longer appears to be the case.

    "This really was about funding, not a genuine concern about the abuses
    rampant in the equitable sharing system," said Scott Bullock, president of the Institute for Justice, in an interview. The institute is a civil liberties law firm that researches asset forfeiture and advocates on behalf of forfeiture defendants. It has reported extensively on what it calls the "profit motive" created by the Equitable Sharing Program: Because police get to keep a share of the items they seize, they have an incentive to take more stuff.

    Bullock said the suspension and return of equitable sharing demonstrate the need for Congress to act on the issue. "Changes to forfeiture policy can be swept away by the stroke of a pen," he said.

    But law enforcement groups dispute that the equitable sharing program is all about filling coffers. "It's not about the money, it's about public safety and doing the job," said Terrence Cunningham, president of the International Association of Chiefs of Police, in an interview.
    Cunningham said that funds from the equitable sharing program are often used to cover budgetary gaps when agents from a local police office are detailed to part of a federal task force. "Say I’ve got one officer assigned to a DEA task force," he explained. "A lot of times I have to backfill that vacancy by paying other detectives overtime. To be quite honest with you I could not afford to do that" without reimbursement from the federal agency, he said.

    Cunningham said that federal-local task force operations are often necessary to go after criminals who would otherwise be difficult to pursue via either local or federal efforts alone.

    Law enforcement groups appear to have had some successes in rallying members of Congress to their side. In January, New Hampshire Sens. Kelly Ayotte (R) and Jeanne Shaheen (D) called on the Justice Department to restore the payments.
    "We are seeing a lot more pushback from law enforcement," the Institute for Justice's Bullock said. "Even to the point where they are ... making budgetary appeals saying, 'we need this for our bottom line.' And that's something that's been unusual to see, and it goes to our point about what this is really about -- raising the revenue," he added.

    Other reform groups are also disappointed to see the program reinstated. "There was hardly time to celebrate the suspension of the Equitable Sharing Program before the government felt the need to put its hand back in the cookie jar at the expense of our civil rights," said Jordan Richardson, senior policy analyst at the criminal justice reform group Generation Opportunity, in a statement. "It's unjust for the government to seize assets from people who are not charged with a crime. It's disappointing to see a White House that claims to be a champion of criminal justice reform reinstate a program that so clearly works against it."

    Battle Creek, Michigan- The Ordeal Of Matthew Starkweather

    OFF THE WIRE
    agingrebel.com
    Matt Starkweather’s 50-month-long ordeal by prosecution continues to mock the ever more vague concept of “justice.”
    Starkweather, 36, is a member of the Battle Creek, Michigan chapter of the Iron Coffins Motorcycle Club. In the wee small hours of New Year’s Day 2012 he fell into an argument, during a party at the clubhouse, with former chapter president Lee J. “Leeroy” Taylor – allegedly over $2,500 that Taylor owed Starkweather. The men came to blows twice.. The first time Starkweather prevailed. The second time, Taylor emerged from a bathroom with a baton and a knife. He knocked Starkweather down and stabbed him in the neck. Two other chapter members, John Lindahl III and Mario “Paco” Barroso beat Taylor with the butt of a shotgun until he rolled off Starkweather.
    Taylor soon died. Starkweather called the police and was arrested for murder. In the coming weeks Lindahl and Barroso were also arrested. The case was both maudlin and banal but it was a motorcycle club case and motorcycle club cases glow. Homicide is homicide as iron is iron but motorcycle club cases glow as hot iron glows. Biker homicides and hot metal are both special cases and that seems to explain the continuing legal crusade against Starkweather.
    Barroso agreed to testify against both Starkweather and Lindahl in return for leniency but his testimony was disappointing and the charges against all three men were dismissed.

    David Gilbert

    Four months later a new prosecutor named David Gilbert was elected. He craved the heat in the case and in December 2014 he reopened it. He charged Barroso in March 2015 and charged him with murder. Even a blind man could see that Barroso was really being punished for failing to testify cogently enough to convict Starkweather and Lindahl. Gilbert’s argument was that Barroso was a murderer because he handed Lindahl the shotgun Lindahl used to beat Taylor off Starkweather as Taylor was stabbing Starkweather in the neck. Apparently the 67-year-old Barroso had a lawyer but he still agreed to plead no contest to a charge of manslaughter and last year he was sentenced to serve between 71 and 180 months in prison.
    Starkweather was charged with murder again in October 2015. He had already spent more than six months in jail after he was charged the first time. He knew in advance that he would be charged again and did not try to flee. But he was still  sent back to jail when he was rearrested, labeled a “flight risk” and denied bail again.

    United States

    The case against Starkweather has always been tainted as well as thin. Before he was elected Calhoun County Prosecutor Gilbert had been a close associate of the lawyer representing the third defendant, Lindahl. Lindahl’s lawyer was named Matt Glaser. And earlier this year Glaser told the current judge in the case, Circuit Judge John Hallacy, “I told Gilbert about the information from Lindahl. I gave related attorney-client privileged information to Mr. Gilbert.”
    Gilbert told Glaser he wanted to participate in Lindahl’s defense for the “good press” it would lend to his campaign for District Attorney. Gilbert also promised Glaser he would never prosecute the case. But, it turned out, the future prosecutor lied.
    Hallacy ordered a special prosecutor, a man named Victor Fitz, appointed to the case. By then, Starkweather had spent 349 days in jail and Hallacy order the accused man to be released to confinement at his parents’ home. At the time Judge Hallacy said that indefinite detention without bail was something that “happens in third world countries. This is the United States.”

    0.002

    Under the conditions of his release, Starkweather couldn’t leave his parents’ property, drink alcohol or associate with anyone in the Iron Coffins or anyone who was otherwise connected to the case.
    The morning after his release, Starkweather attended a mandatory probation hearing. He was given and flunked a breathalyzer test. For decades, the legal definition of alcohol intoxication was a blood alcohol concentration of 0.10. The legal definition of intoxication was eventually reduced 0.08. Starkweather’s test indicated he had a blood alcohol concentration of 0.002 which was probably because he brushed his teeth that morning. Starkweather had used Crest. Crest contains an alcohol called sorbitol. The breathalyzer test found the sorbitol.
    A deputy also claimed that Starkweather had left the confines of his parent’s home three times the previous night between two and five in the morning. He didn’t speculate why. Starkweather spent another weekend in jail before he got the chance to tell Hallacy “ I did not have anything to drink” and “I never left that house.”
    Hallacy told Starkweather to remember that he was “under a microscope” and let him go home again. A couple of days after that, Special Prosecutor Fitz admitted that Starkweather’s GPS monitor had “apparently” malfunctioned.

    No Trial Date

    But the case, and its magic glow, remains stuck in the mud. In arguing that Starkweather should be sent back to jail, Fitz told Judge Hallacy that Starkweather had stabbed himself in the neck to give himself a defense. Then last Thursday, Hallacy removed Fitz from the case after Fitz admitted he had been briefed by former prosecutor Gilbert on the information Gilbert had learned from Lindahl’s attorney Glaser.
    So Starkweather’s ordeal by prosecution continues while Hallacy searches all of Michigan for an honest prosecutor. It might take awhile. It shouldn’t be this hard.
    Yesterday, Easter, Starkweather was allowed to leave his parents’ home to go to church. Afterward, Matt Starkweather’s father Tom said, “No family should be put through anything like this. If the government has a case let’s go to trial tomorrow!”
    No trial date has yet been set since it turned out Special Prosecutor Fitz cheated and lied.