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Tuesday, November 22, 2005

For the Crime of Using Public Transportation? (Updated)

Read this:

Meet Deborah Davis. She’s a 50 year-old mother of four who lives and works in Denver, Colorado. Her kids are all grown-up: her middle son is a soldier fighting in Iraq. She leads an ordinary, middle class life. You probably never would have heard of Deb Davis if it weren’t for her belief in the U.S. Constitution.

One morning in late September 2005, Deb was riding the public bus to work. She was minding her own business, reading a book and planning for work, when a security guard got on this public bus and demanded that every passenger show their ID. Deb, having done nothing wrong, declined. The guard called in federal cops, and she was arrested and charged with federal criminal misdemeanors after refusing to show ID on demand.

She hadn’t been accused of a crime--in fact, there was no cause to believe that she had committed or would commit a crime. Where is her obligation to produce identification, and the private information contained on the ID, to a security guard on a bus? And for what cause? Seriously, why did that security guard need to see her identification? Was he going to remove her from the bus if he didn’t like her name? What was the cause requiring him to check the ID of every person using public transportation?

Real security is taking measures to ensure that bombs, guns, and knives don’t get into the places where they will do the most harm. Real security is not capricious demands of citizens for no discernible cause.

The bus that she was riding did travel across Federal property--the Denver Federal Center--but the request for ID at a checkpoint is nothing but a compliance test. It’s a meaningless show of power since the only “pass” is producing the identification. The IDs aren’t checked for veracity or against any list of dangerous figures, and producing ID allows you to pass through the Federal property.

From another part of the site:

Through these charges, it appears that the Feds are claiming that people were on notice that they had to show ID.  Nowhere is this evident, unless ‘Public Welcome’ flags are bureaucratese for ‘Papers, please’.  In addition, Deb wasn’t even visiting the Denver Federal Center.  That the public bus transits the facility isn’t her fault.  If the Center really is Denver’s answer to Area 51, then public buses should be driving around — not through — the Center.

Sounds about right.

To tell the truth, after reading through the complaints and the site supporting her cause, I’m guessing this isn’t a person I would like. I’m guessing that she really was a little rude and not entirely respectful; that isn’t relevant when discussing whether she had the obligation to produce ID on demand.

The Supreme Court has recently said that police have the right to demand a name from a person who isn’t suspected of a crime (in this case that would seem to be similar), but I don’t have to believe that they decided correctly.

And, frankly, even that seems like a stretch since there was no accusation of criminal activity--with the exception of her refusal to show ID--on the part of Davis. Consider this, about the earlier case, from Talk Left:

The ruling arose in the context of a Terry stop—a (supposedly brief) detention for the purpose of investigating suspected criminal behavior.  The police are required to have an objectively reasonable suspicion of wrongdoing before making a Terry stop, but experience shows that officers conjure up all sorts of reasons for demanding that individuals halt and answer their questions.  The detained persons have the right not to incriminate themselves, but as of today, they don’t have the right to refuse to identify themselves—except in those states that have independently protected that right as a matter of state law.

Let’s be honest: I’m not a lawyer and my knowledge of law is limited to what I read on Volokh Conspiracy (since I automatically discount anything I see on TV or in the movies as being more based in drama than in fact). In fact, I’m sure that there is more to this than I could find with a few simple Google searches. For that matter, maybe someone can articulate a compelling reason that police should expect citizens to produce identification on demand, regardless of suspicion of illegal activities or any demonstrable security purpose.

I realize that my understanding of the intricacies is limited. So, hey, I’m listening.

Update: And don’t forget to read what Publicola has to say.

And be sure to read De Doc, too.

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Well at least Scalia and Thomas and Rehnquist were being consistent in their belief that there is no constitutional right to privacy.

All snarkiness aside, I agree with you. There is not even reasonable suspicion in this case. Being surly does not constitute acting suspicious. If it did, cops should be demanding each other’s identity all day long.

on Nov 22 2005 @ 05:37 PM

Well, from the snippet you posted, Jeralyn’s analysis isn’t quite spot on. Since you mentioned Volokh, let’s hear what Eugene had to say about the Hiibel ruling.

The question in today’s Hiibel v. Sixth Judicial District Court decision from the Supreme Court is: Once the police stop a person based on reasonable suspicion that he may be involved in criminal activity, may the police demand that he identify himself (backed by the threat of legal punishment should he refuse, or should he lie)?

The Court’s answer: “yes,” at least so long as (A) the demand is “reasonably related to the circumstances justifying the stop” (which will almost always be so), and (B) there is no “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” (it’s not clear how often this will be so). If condition (A) isn’t satisfied, then the person’s Fourth Amendment to be free from unreasonable seizures would be violated. If condition (B) isn’t satisfied, then the person’s Fifth Amendment rights to be free from compulsion to incriminate himself might possibly be violated.

The further question is under what law this security guard is checking IDs. Probably no specific federal regulation, although post-9/11, I wouldn’t be surprised. However, my suspicion is that it’s a policy, rather than a law.

As an aside, it’s a very poor policy on the part of RTD to run busses throught the Federal Center, if those busses are also carrying passengers with another destination. It’d be pretty easy to run a shuttle from the park-n-ride.

But back to Hiibel. Rich Lucibella, publisher of S.W.A.T. magazine, summed it up this way.

The REAL problem is simple:
Prior to Terry and Hiibel Americans could be expected to understand their rights: You do not have to speak to a police investigator under any circumstances; it [used to be] a guarantee of the 4th and 5th Amendments.

Today, you MAY not have to speak to them. It depends on how good a Constitutional Attorney you are. Here’s how it works after Hiibel and I challenge your Dept Attorney to come here and debate these facts with me. Stick with me, because it’s complicated and neither the Founders nor I made it so:

It’s not illegal to refuse to provide your name (ID?) to an LEO if it is NOT a Terry Stop, OR if your State jurisdiction does not provide for Terry Stops. Of course, there is no way to know if you’ve been stopped under Terry until you take the bust, hire an attorney and go to Court.

It’s not illegal to refuse to provide your name (ID?) to an LEO if it IS a Terry Stop, and your State provides for Terry stops, providing the officer cannot, at a later time, articulate his “Reasonable Suspicion” to make the Terry stop in the first place. (Remember, not too long ago, Pre-Terry, when the standard was “Reasonable Cause”?) Of course, there is no way to know if Officer Friendly had “Reasonable Suspicion” under Terry until you take the bust, hire an attorney and go to Court.

It’s not illegal to refuse to provide your name (ID?) to an LEO, if you are stopped under Terry where the provision of your name would provide a nexus to a crime you had committed. You’re protected by the 5th if you refuse to speak the words, “My name is Timothy McVeigh”, but you go to jail for refusing to state, “My name is Kevin McClung”. Of course you can never know if either position is safe, unless you take the bust, hire an attorney and go to court.

It is not illegal to refuse to provide your name (ID?) to a Federal Investigator if you can figure out your rights in such situation, but it IS a Felony if you answer questions and your answers are later determined to be “untruthful”. (Just take the bust. Skip the attorney and Court hassles.)

The further piece here, of course, is you have to know what constitutes a “Terry stop”.

So I think (IANAL) that part of the question before the court will be whether a “federal reservation” is or is not under the umbrella of Hiibel and Terry. Also, does the fedgov have the authority to deny entrance to a federal reservation? I suppose they do. But barring entrance and making an arrest are two different things.

It sounds to me as if this case doesn’t pass the “reasonable suspicion” test for demanding ID. However, that might not be the appropriate standard when talking about entering a federal reservation. And that’s what this is about, rather than just riding the bus.

on Nov 22 2005 @ 06:31 PM

Good thing I’m not looking for work in Denver. Geez.

on Nov 22 2005 @ 06:42 PM

The thing about that particular bus run is that it’s an east-west route that doesn’t actually spend much time in Denver itself. The Federal Center is (for those familiar with Denver or Google Maps) in Lakewood, basically at the northwest corner of Alameda and Kipling. The bus runs from the park-n-ride at 6th & Simms down to Alameda and out to Aurora Mall and points east.

It’s been about a decade since I’ve been on that bus, but I don’t remember it running through the Federal Center so much as making a stop just inside the gate, then coming right back out.

on Nov 22 2005 @ 08:19 PM
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