“What’s in a name?” asked Shakespeare’s Juliet. This week, the Supreme Court gave a partial answer to the question. Not, they insist, anything necessarily incriminating. If a cop wants you to give him your name and a state statute requires it, there are no constitutional protections to say otherwise.
When it came to the case of Hiibel v. Sixth Judicial District Court of Nevada, lots of people, including four members of the Supreme Court, thought differently. Thanks to the marvelous electronically connected world we live in, the interaction between copper and suspect that led this case to the Supreme Court is available online.
The details: A police officer in rural Nevada had a call in about a possible domestic fight, arrived near the scene and found Larry Hiibel parked by the side of the road standing outside his truck, with his daughter inside. The policeman said he was conducting an investigation — into what, specifically, he never said — and 11 times he asked Hiibel to identify himself.
Hiibel refused and said the officer might as well take him in if that’s what he wanted to do. After his arrest, Hiibel challenged the Nevada statute — Sect. 171.123 — that gave the officer the power to take him in for his stubbornness, and the case rose up the ranks to the Supreme Court, which ruled on it Monday. The court found in favor of Nevada.
It is also because of this marvelous connected world that many people filing amicus briefs for Hiibel, including the Cato Institute and the Electronic Privacy Information Center, believed the Court needed to think harder about what we are really doing when we give a police officer our name.
That name becomes a powerful key. It can be checked by police against the National Criminal Information Center database, which the Justice Department exempted last March from federal requirements that the info in it be “timely, relevant, complete, and accurate.” Names can also be checked against the Multistate Anti-Terrorism Information Exchange — MATRIX — which the ACLU believes contains some of the data-mining aspects of the controversial, supposedly mothballed Total Information Awareness program.
Telling an officer your name most certainly, by any reasonable definition, puts you in a situation discussed by the court in Kastigar v. United States (1972). Justice Anthony Kennedy used this quote from Kastigar himself in his majority Hiibel decision, although he came to a different conclusion about what it meant. The Fifth Amendment, the court declared in Kastigar, “protects against any disclosures that…could be used in a criminal prosecution or could lead to other evidence that might be so used.”
A name in the hands of a police officer with access to modern databases certainly “might be so used.”
IN HIS DISSENT, Justice John Paul Stevens notes that Hiibel, and other people pulled aside in what’s known as a Terry stop (after the 1968 case that first began establishing the legal principles that define what a cop may do when questioning you), now have fewer rights than an actual arrested suspect. An arrestee may refuse to answer any question without opening himself up to punishment. Hiibel could not.
Whenever one questions the rights or powers of the police to require us to identify ourselves, a very common response, and one implicit in Kennedy’s decision, is something along the lines of: “Only the guilty have reason to fear. What, exactly, are you trying to hide?” Kennedy, at the end of the decision, left it open that if indeed you had something very significantly criminal to hide, then having to give an officer your name might be a different matter — a matter for a later court to decide when confronted with a different set of circumstances.
But it is simply not true that only the guilty have reason to fear this world we are moving into — one in which all sorts of standard activities of a private citizen, from traveling by air to standing by one’s truck at the side of the road, leave you vulnerable to an officious police check on every bit of information any source — public or private — has gathered about you. Anyone concerned with his own privacy and dignity has reason to fear this decision.
The Electronic Privacy Information Center said it well in its brief in Hiibel’s case. A name, the center maintained, “is no longer a simple identifier: it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual’s life” If a person can be made to give this information to police, there go Fourth and Fifth Amendment protections.
Statutes like Nevada’s, which turn a Terry-stop suspicion plus the refusal to answer a question that one normally would have a perfect right to ignore into an arrest, in essence make a Terry stop equivalent to an arrest for anyone who wishes to preserve what a typical American might well think of as his right — to not be trapped in a “your papers, please” mentality on the part of police and courts.
The Hiibel decision does not say that one has to carry a state-approved I.D. It merely says that one is obligated, as the Nevada statute requires, to supply a name if a state statute so requires. However, the logic of the request demands that something more substantive and certain than a mere verbal declaration be given to satisfy an officer. You could, after all, merely identify yourself as “Heywood Jablome” and be done with it, but that wouldn’t satisfy the typical officer.
Indeed, a combination of Hiibel and the 1982 decision in Kolender v. Lawson — which decided that a California statute demanding I.D. was unconstitutionally vague since it didn’t specify what kind of I.D. is “credible and reliable” — both point toward a national I.D. card. In the eyes of the state, what could be more “credible or reliable” than that?
We’ve been approaching this sad destination from many byways now, and Hiibel will take us very close to the final destination.
Nowadays, most Americans will react to this with at worst a sigh and a “what do you expect? These are perilous times, requiring stern measures.” It may sound tired or clichéd to point out that a huge part of what made America great was it was a land where free men minding their own business could count on being able to tell our public servants to buzz off unless we were accused on probable cause of a crime, but that doesn’t make it any less true.