Classical Values :: But only a kook would refuse to show ID!

October 26, 2007

But only a kook would refuse to show ID!

Glenn Reynolds links a very thoughtful piece by Melanie Scarborough which brought back old memories for me. Apparently, Washington DC police are blocking off streets when they feel like it and then demanding ID from people who simply want to walk from place to place. Ms. Scarborough asks some good questions:

Which statute requires law-abiding citizens to produce ID to walk down a sidewalk? What law says that citizens must explain to police where they are going and why?

A call to the police departments general counsel asking that question was not returned. Unfortunately, there likely is some badly written statute that the Metropolitan police can contort into affording them sweeping powers -- similar to the Secret Service's ability to operate virtually unchecked by claiming it is protecting someone or something.

I can understand why the general counsel failed to call her back. If in fact there there is some badly written statute requiring law-abiding citizens to produce ID to walk down a sidewalk and explain to police where they are going and why, it is unconstitutional under a long line of United States Supreme Court cases.

In Brown vs. Texas 443 U.S. 47 (1979), the Burger court reversed the conviction of a man for:

refusing to comply with a policeman's demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request.

And in Kolender v. Lawson 461 U.S. 352 (1983), the court held that California Penal Section 647(e) (which "requires persons who loiter or wander on the streets to identify themselves and to account for their presence when requested by a peace officer") was unconstitutionally vague:

The statute, as drafted and as construed by the state court, is unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect 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 and must be permitted to go on his way in the absence of probable cause to arrest.

In order for the police to justify a stop, there has to be some reasonable suspicion of criminal activity. These "stop and identify" laws are unconstitutional, and the police know it. In all probability, they are abusing their powers and hoping most citizens will comply.

Melanie Scarborough argues that citizens should refuse to comply with such "laws" and claims of authority:

Such laws are more dangerous than any group of protesters.

Keep in mind that the Bill of Rights is essentially a list of impediments to police. The Founding Fathers understood that a free society can exist only when there are strict checks on police powers. It is not supposed to be easy for cops to corral citizens as they do -- and too few Americans object.

Instead of submissively behaving as if a policeman's word is law, Americans should demand to know why their movements are being restricted. When a police officer capriciously demands to see identification, the proper response is "no." That is not defiance toward authority; it is an obligatory defense of freedom.

I couldn't agree more. When I was a kid, we used be horrified by movies depicting life under totalitarian states, and one feature they all had in common was the Gestapo/Stasi/KGB guy coming up to people at whim, and demanding, "Let me see your papers!"

Well, this is exactly what Ms. Scarborough is describing, and I think it's appalling.

I helped work with Edward Lawson (who was arrested 15 times under 647(e) during the time I knew him) when I was a pre-law student, and I'm proud that I played a small part, as he handled the Kolender vs. Lawson case in propria persona before the ACLU finally got involved. Edward was the furthest possible thing from being a criminal; the problem was that the cops just plain didn't like his attitude, his race, or his dreadlocks (which frightened cops in those days). If asked for ID, he would pull out his notebook and start writing down badge numbers -- something which did not go over very well with people accustomed to having their authority go unquestioned. The thing was, he didn't drink or do drugs or anything, so he was always clean, and it drove the cops crazy, because they are so accustomed to everyone being afraid and having something to hide. He also had a great, booming, deep voice which sounded like a Harvard professor from the 1930s on steroids, with perfect enunciation and a very erudite manner of speaking (which many police officers interpreted as making them look like ignorant louts). Basically, he defied the stereotypes, would politely and patiently refuse to cooperate, and never budged on his rights, no matter how long it took.

It takes a real dedicated kook to do stuff like that, and it took him many years of dedication to get the law struck down.

We need more such kooks.

MORE: As seen on YouTube!

As recently as May 18, 2007, Edward Lawson still attracts undue police attention. The encounter Edward describes with a police tactical anti-gang unit in El Segundo is so typical of the sort of thing that used to happen to him when I knew him, and it will give readers an idea of what I was talking about.

I was surprised to find it on YouTube, maybe I shouldn't have been.

According to Edward, the police began the encounter by saying, "how many probation violations do you have?"

Says Edward, "It's a cartoon. You're trapped in this Saturday morning cartoon."

Be sure to watch Part 2, in which they decide he's a "gang member," refuse to take a urine sample without explanation, take away his rented car, and finally tell him he "was" arrested for "being under the influence of a controlled substance." (Edward's "the last thing I am is a gang member" is a vintage classic.)

As for drugs, I knew and lived with Edward for years, and I can tell every reader that he did not take drugs. It's a matter of principle with him -- which Edward explains in Part 3. In part 3, Edward characterizes this as "racial profiling gone bad." and I agree. It began as ordinary racial profiling, and was then aggravated by Edward's refusal to fit the "profile."

And finally, there's Part 4.

"It has happened to me over and over and over."

(Yes, it has. I remember it back in the 70s.)

"Does this bother me? I've become used to it. That's worse than bothering me."

"Any cop who wants to can make up any story he wants and any jury would believe it."

Finally, he signed a form under duress in order to be released.

"These four deputies fabricated a crime against me because I was not the gang member they were looking for. How many more times are they going to do this on a daily basis?"

It's all so ridiculous, and all so typical of the encounters I remember. I guess not much has changed in all these years. (I have long suspected that the primary problem in most of these incidents is that Edward is smarter than the cops.)

What gives cops the right to arrest people for being under the influence when they are not, and refusing to give them a blood test? Can the police just accuse sober people of being "under the influence" because they don't like them? (Obviously they can.)

I remember walking down the street with Edward in Berkeley back in the 70s, when a police car drove by. In an ominous tone, the loudspeaker suddenly blared out (for no particular reason) "You're not a student, Lawson!"

Trust me, cops just don't like this guy. Not everybody does.

But what has that to do with law enforcement?

Apparently, everything.

posted by Eric on 10.26.07 at 04:49 PM

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Comments

Which is precisely why one should oppose a National ID.

Of course, most of us *drive.*--and no court is going to punish a cop for asking for one's driver's license when he stops you in your car. We long ago accepted "license and registration, please."

I've always found it fascinating how the invention of the automobile abrogated so many of our liberties. I imagine the founders would have been outraged at the idea of operator's licenses for their horses and buggies, or registration of same. Within the context of the time, they were every bit as dangerous as automobiles.

Brett · October 26, 2007 06:27 PM

I never considered myself a libertarian back in the days when police were doing such things to blacks with impunity. It was just a matter of simple justice with me.
One day while having breakfast at Foster's cafeteria at the triangle of 14th and San Pablo (across the square from Oakland city hall) a cop entered and tried to roust a man such as you describe who was simply having a glass of water while waiting for the AC Transit bus.
He had no ID.
He ended being pushed up against the squad car, clubbed in his groin 7 times (I counted every blow) and shoved into the back seat.

A rage I had never experienced overcame me.
I went out to the police car, wrote down the license number, and got the white cop's badge.
The all black employees of Foster's watched in silence through the plate glass windows.
They apparently felt that nothing could be done.
Still shaking, I walked across to city hall and tried to report this obvious case of police brutality. The black woman I was referred to sent me down to police headquarters.
I reported the incident to Internal Affairs.
Nothing -- for years.

5 years later I got a call from the Alameda county public defenders office. It seemed that the very same white cop had beat the crap out of another black man. Would I be a witness against him?
Of course. But the kicker was this. I would have to be brought down to testify from far northern California and housed with a family in Contra Costa county for my protection -- protection from the Oakland Police Department!

Because I would be a very credible witness all charges against the black man were dropped by the DA before I was called to testify.
Just to save the pigs ass.

This occurred about the time you were pre-law at Boalt Hall in the early '70s.

Apparently nothing has changed.

Frank · October 27, 2007 10:56 PM

What if I disguise myself to look very similar to a notorious criminal being sought by police, then parade about and, when apprehended, refuse to provide ID.
Will I be justified to complain about injustice? After all, I'm not guilty of a crime.

This is just an extreme case, but the whole idealistic concept of outlawing "profiling" by police is impractical and perverse. Everyone, including the police, tentatively profiles everyone they see or meet, and making people pretend they don't is quixotic.

Of course there are examples of police abuse as well as examples of police inability to promote justice due to idealistically conceived restrictions on police behavior. Citing umpteen examples of either type is not a means of making a cogent point about what national policy should be.

As for the conventional explanations of why people oppose national ID, it's anachronistically self-righteous theater. In modern societies there is a clear need to identify people for innumerable reasons, and if you insist on putting a fig leaf over the need, then you will just end up with make shift inefficiency such as the use of social security numbers. Look around the world and you will see that personal ID is almost ubiquitous, and where it's absent society suffers.

I consider the examples given here of teasing the police to be comparable to an adolescent's desire to piss on a Buckingham palace guard.

Anonymous · October 28, 2007 06:27 AM

When I lived in the Boston area many years ago, there were a number of occasions when I had to kill time waiting for someone/something by sitting in a car reading a book for protracted periods in suburban/residential locations and was interviewed by police.

Not having a chip on my shoulder, I showed them my ID and explained why/what I was doing. If I was trying to show I was "smarter than the police" i could have wasted my time and the police's time by trying to make some kind of point about "the letter of the law."
Or if I were of some particularly intimidating ethnic or apparel-fashion group then I might try to attribute the police's suspicion to "prejudice."

Ideally, I consider the situation from the police perspective (and the local community's perspective) and try to make their job easier, thereby also making my life easier.
If I'm sure these particular police are merely looking to harass people for their own amusement, that's a different issue calling for a different response. But I should at least start by considering whether the police might just be trying to do their job as best they can.

Information is a two-edged sword, it can help society protect itself from criminals, and it can help bad societies persecute nice people.
If I want to emphasize the former, I'll talk about the actual use of ID by most societies.
If I want to emphasize the latter, I'll talk about the use of ID by the Nazis, Stalin, Castro, and Pol Pot.
The point of the anti-ID people is that "society can be bad, so we should make society impotent".... Whereas it would be better to make society competent and ethical.

Look at Iraq, you have people such as Electronic Privacy Information Center EPIC, that
http://www.harpers.org/archive/2007/08/hbc-90000905
will say that if the US army uses an ID system for Iraqis, it lays the basis for genocide as in Rwanda (mentioning South Africa in passing)... so their point is that there should be no ID system despite the evidence that such systems are greatly improving security. Such anti-ID activists focus on the potential downside and are too lazy to try and compare that potential with the upside. That's too hard? Not their job? Well why should we listen to people who don't even try to compare the costs and benefits of ID?

Nate · October 28, 2007 07:15 AM

Anonymous:

If in claiming there is a need for the state to identify individuals on an ad hoc basis, you are referring to security issues (and on cursory consideration, I can't think of another reason), I contend that it is never necessary for state or private security operatives to know who you are, only whether you are trustworthy.

This can be easily made manifest without resort to identification through a simple certification process which can be made entirely volutnary and supported by user fees.

Not to mention quite a bit less expensive than the security theater we currently have -- which does not increase security, yet does diminish civil liberty.

Mark Alger · October 28, 2007 07:40 AM

To Mark,
If you have a method of promoting security by identifying who is trustworthy and not trustworthy, I and other readers would be curious to know what it is.

I would suppose security issues are the main reason for the need for ID, but then again, such issues aren't black and white; in most cases people are somewhat trustworthy at various level vis a vis different kinds of security issues, including financial issues. So would your simple certification process distinguish between compulsive gamblers, pedophiles, and religious terrorists as well as combinations of such groups?

My guess is that as you refined the system, you'd end up edging increasingly close to identifying people's actual identity and actual record of trustworthiness.

And the voluntary aspect would seem to be feasible only for such voluntary/optional items as plane travel.... how would you deal with people who didn't voluntarily get an ID?
How would society deal with me if I didn't help society differentiate between myself and various criminals I resemble?

The current situation is a security theater largely because the basic principles are not clear. There is a very vague concept of what it means to be not "profiled/discriminated against/have civil liberties abridged" and this concept is too vague and hedged with dangerous sandtraps such as accusations of racism for people to rationally deal with. Most people just don't want to be accused of the various hate crimes that are attributed to people who would recognize the obvious fact that some people are more suspicious than others for reasons they (sometimes may) have no control over and yet we have to accept reality and do our best to deal with reality rather than "idealistically" denying reality.

Terms such as "diminish civil liberty" really stump some people and not others because of implicit assumptions regarding the virtue of hiding such personal identity truths that may be considered embarrassing or inconvenient as illegal drug use, unconventional sexual behavior, wife beating, etc.... for those of us who have been teenaged since the late 60s, the illegal drugs are one of the first things to come to mind as a rationale for protecting our "civil liberties", no?

Is that the only concept of civil liberties that we have to balance against the obvious virtues of society being able to identify people?

Look at societies in general. Small communities where everyone knows each other will find it much easier to enfore societal rules, while large communities of highly mobile and anonymous people cannot lay a basis for trust.... how can you know who to trust when the potential repurcussions of abused trust are great? Is there a civil liberty founded on civil order, or is civil liberty only possible in the absence of civil order?

"Civil liberties" probably means many things to many people, but it's too broad a term.

Nate · October 28, 2007 08:32 AM

Try to think of an example in animal societies where anonymity is acceptable. If I were a chimp and tried to just hang about a chimp society without fitting into an identity from the perspective of the chimp tribe, would that be acceptable? Before accepting me, the chimps would want to know what to expect from me in terms of contributions and rivalry....

Or maybe a waterhole in the southern African plains.... anyone can come at their own risk, and no need to be identified or acknowledged by others at the waterhole.... but it's a good place to hunt and be hunted.

Modern human societies allow for an amazingly high level of individual anonymity while also providing for identification when necessary and sometimes perhaps more than absolutely necessary (assuming we can tolerate certain types of risks and losses) but the question that "civil liberties" advocates should address is how to explain what an ideal society of optimal civil liberties would look like. Has such a society ever existed? Was it the "wild West" or the Darwinian jungle or what?

Was the US abridging civil liberties when it started asking people's names at Ellis Island etc.?
Was the Hebrew God seeking to abridge liberties when he started giving names to the various items of the universe so early in Genesis?

To what extent are civil liberties advocates purposely avoiding defining what civil liberties really mean?

Anonymous · October 28, 2007 08:50 AM

Who let the sheep out?

Brett · October 28, 2007 09:17 AM

Brett: "Who let the sheep out?" is apparently an wink to others in a flock of self-styled "wolves" or "rebels," right?

Well is that an illuminating indication of a kind of romanticism underlying a generic passion for civil liberties? Is there an intellectually rational adjunct?
It's dandy and fine so long as you and your loved ones are not infiltrated by actual wolves.

Nothing is more fun than to live on the wild side of an orderly society; enjoying the freedoms that order brings without feeling beholden. I myself enjoy being "wild" and anonymous, but not without considering the societal karma.

I hope you are blessed with enough "sheep" about you so that you can continue to enjoy your wild self image in the manner of Hesse's "Steppenwolf," who ironically felt his affinity for bourgeois surroundings was ironic.

But the bourgeois sheep are fading boogymen; they don't cramp most steppenwolves' style much unless you ask them to. I would just ask you to try to imagine a nice society where everyone is anonymous, a sort of perpetual Mardi Gras party perhaps? A toga party in burqas?

Or can we identify an actual modern society that functions well without IDs? It would be useful to consider the circumstances of such a society.

I wouldn't fault you for romanticism, which is a nice filter for viewing life when enjoying life, but when considering what's desirable for society at large wouldn't it be better to also do a medium-term cost/benefit analysis? Nothing is free; anonymity might be worth the societal costs in some cases, but you shouldn't just ignore the costs and preach to the choir of fellow romantic wolves.

I would enjoy reading a speculative discussion of how personal ID might become actually oppressive over time due to the exposure of genetic predispositions, ubiquitous IT, etc., or of how to harmonize privacy with societal needs, but the issue of showing ID when driving, boarding planes, etc. is a romantic tempest in teapot.

Nate · October 28, 2007 01:23 PM