USA Supreme Court upholds demand for traveller's name

The Supreme Court of the USA today announced its 5 to 4 decision in the case of Hiibel v. Nevada , upholding the criminal conviction of a person whose only offense was that, when stopped by a county sheriff while standing along a public right-of-way, he refused to “identify himself” in response to the demands of the police that he do so.

It’s a bad decision for many legal reasons. It’s also one of those cases that especially frustrate me because the “facts” on which the Court based its decision are not what really happened. The more levels of appeals a legal case passes through, the more likely this is. In every Supreme Court case in which I’ve had any knowledge of the circumstances that gave rise to the case, the decision has been based on counter-factual misunderstandings, misreadings of the “record”, and distortions introduced in the course of lower court proceedings and Supreme Court pleadings and argument. In effect, the tendency is for the Supreme Court to make its decisions on the basis of hypothetical circumstances, but for the results to be applied to real people in very different, but real, situations.

In this case, the discrepancies between the facts in the record on the one hand, and the situation described in the majority opinion on the other, are particularly apparent. The Supreme Court majority says, for example, that, “The officer approached the man and explained that he was investigating a report of a fight.” But the videotape of the conversation and arrest made by the police, and made part of the record in the case, shows that the sheriff told Hiibel that that the reason for his demand was that he was “investigating an investigation”.

The Court majority bases its decison on its finding that the Nevada law required only that Hiibel identify himself verbally by name. But, as the majority opinion itself notes, the videotape shows that the sheriff told Hiibel, “I need to see some identification” [emphasis added], making clear that the demand extended beyond verbal self-identification to include production of some sort of visible evidence of identity.

Yet the majority manages to find that Hiibel was not required to “give evidence against himself”, in violation of the Fifth Amendment to the Constitution of the USA:

One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.

Of course, that contradicts the claim in the same opinion that the legal requirement to “identify” oneself means only that one must state one’s name. An identity may be unique, but a name often isn’t, and certainly isn’t legally required to be. Many people use different variant forms of names, nicknames, or “aliases” for different purposes or in different contexts. I have one friend (a lawyer, as it happens) who is known to me and his friends as “Breakfast”, to his co-workers as “Ron”, and to the judges before whom he a appears as, “Mr. ______”. There is no law against this as long as one’s purpose isn’t fraudulent.

So the majority opinion in Hiibel is, at best, confused about the distinction between an identity, a name, and visible or tangible evidence of identity (typically credentials or other documents). It’s also confused, if not self-contradictory, about self-incrimination, as Justice Stevens makes clear in his dissent:

The Court [majority] reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him…. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”? If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy.

I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands. A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.”

And besides which, if one’s own statement, “My name is ________ ” isn’t (testimonial) evidence of one’s identity, what is?

Nevertheless, today’s decision isn’t nearly as bad for travellers and the freedom to travel as it might be. There’s a silver lining both in what the it decides and in what it leaves undecided.

First, the decision is limited to circumstances in which there is already a “reasonable suspicion that a person may be involved in criminal activity”, sufficient to justify a so-called “Terry stop” by the police:

Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement 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.

So today’s decision does not provide a precedent applicable to a universal demand for names, or a demand applied to people about whom police do not (yet) have a “reasonable suspicion” of criminal activity.

Whether a particular suspicion-generating mechanism such as the profiling component of the CAPPS-II airline passenger monitoring system would provide a sufficiently “reasonable” basis for suspicion to satisfy the Constitutional requirements for a “Terry stop” would require further factual inquiry. But at most, today’s decision in Hiibel could be used to justify a requirement only that those who have already been identified as fitting a reasonable profile of suspiciousness could be required to state their names.

Since an essential foundation of the CAPPS-II scheme is the planned new requirement that all would-be airline passengers be required both to state their names when making reservations, and to provide credentials or documentary evedence of their names when checking in for flights — before they could be profiled, and as an essential part of the basis on which the profiling and determination of their degree of suspiciousness would be conducted — today’s decision in Hiibel appears to call into severe question the Consitutionality of the pre-profiling, non-suspicion-based,identification directives on which CAPPS-II would depend.

Today’s decision similarly calls into question the Constitutionality of the MBTA’a plans to demand identification from “random” Boston-area rail transit passengers, without any prior basis of suspicion.

Second, the Court clearly distinguishes in its opinion (if not in the actual facts of the underlying case) between the legality of requiring someone to state their name, and the legality of requiring them to produce credentials or documentary evidence of identity:

[T]he Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver’s license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.

While that could be used to outlaw anonymous travel (at least by those who are already under “reasonable” suspicion), it provides no basis for a prohibition on psuedo-anonymous travel as Jane Doe, Mickey Mouse, Mr. or Ms. Anonymous, or a different name each time we fly.

And to the extend that the Court’s decision today is dependent on the “fact” that Hiibel could, in the majority’s opinion, have satisfied the requirements of the law by stating his name without producing documents, it leaves open the possibility that a requirement to produce credentials or evidence of identity might be found unconstitutional even if it were applied only to those who had already come under reasonable suspicion — and not, as is contemplated for CAPPS-II, of all would be air travellers.

Third, the only questions presented or decided in Hiibel were those arising under the 4th Amendment (not be subjected to unreasonable searches and seizures) and 5th Amendment (not be required to give evidence against oneself) to the Constitution of the USA.

The most important prior Supreme Court case on police demands for people to identify themselves, Kolender v. Lawson , was decided on vagueness and 1st Amendment grounds which would appear equally applicable to the law and the facts in Hiibel .

The Court in Hiibel was not asked to decide, and didn’t address — leaving it an open question — whether the Nevada law under which Hiibel was convicted is unconstitutionally vague , or violates any portion of the 1st Amendment, including “the right of the people peaceably to assemble”, as I would have argued and as was argued by friends of the court including PrivacyActivism and FreeToTravel.org in a brief drawing in part on my analysis.

The Court can, and sometimes does, decide questions other than those presented by the parties. So it’s not crazy for such issues to be addressed in amicus briefs. But the Court’s decisions can’t be used as precedent on issues they don’t consider. Vagueness and 1st Amendment freedom to travel challenges remain available, therefore, to other, similarly situated defendants, even under the same Nevada law as was at issue in Hiibel .