Show Me Your Papers. Can Police Arrest You for Failing to Identify Yourself? Is history repeating? Can this be true in the United States?

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1 Show Me Your Papers Can Police Arrest You for Failing to Identify Yourself? Is history repeating? Can this be true in the United States? Fourth & Fifth Amendment Rights. What is the penalty range for Failure to Identify? The law says if I am lawfully arrested or detained. How do I know if the action by the peace officer was lawful? I was not detained or arrested, but a peace officer asked me questions thinking I was a witness to something. How do I know if they had good cause to believe that? Don t I have a right to remain silent? Doesn t that mean they can t force me to say anything? Free Publication by Self Defense Fund National Association For Legal Gun Defense

2 Show Me Your Papers Can Police Arrest You for Failing to Identify Yourself? Fourth Amendment Rights. Whether a particular type of search is considered reasonable in the eyes of the law, is determined by balancing two important interests. On one side of the scale is the intrusion on an individual's Fourth Amendment rights. On the other side of the scale are legitimate government interests, such as public safety. The extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure. Minnesota v. Carter, 525 U.S. 83 (1998). When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be commited, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions. Terry v. Ohio, 392 U.S. 1 (1968) & Minnesota v. Dickerson, 508 U.S. 366 (1993) Fifth Amendment Rights. The Fifth Amendment to the United States Constitution provides that a person cannot be compelled to provide self-incriminating testimony. In many instances, providing identification to a police officer would not be self- incriminating. However, in other situations disclosing one s name might alert the officer to outstanding warrants or criminal charges. The United States Supreme Court has not ruled on whether providing one s name in response to police questioning on the street constitutes testimony, thereby bringing the exchange within the protection of the Fifth Amendment. State courts have ruled inconsistently. So whether this defense would apply in a particular state depends on how that state s courts have ruled on the issue. How Much Information Must the Person Stopped Provide to the Law Enforcement Officer? While the answer varies by state, all states with stop-and-identify statutes require that the person stopped provide at least a name. Some states also require the person stopped to provide an address. Other states simply require that the person stopped not provide false information. In these states, the person stopped is not required to answer the law enforcement officer. Example of a True Case from Files: The very latest in outrage-inducing viral video comes courtesy of a Texas man who was recently arrested and dragged into the back of a squad car after police stopped him for jaywalking. It's unusual, to say the least, for police officers to arrest and drag around someone suspected of merely jaywalking, so on what grounds did these officers arrest this person? That very question was asked by a media reporter and the answer is something called "failure to identify. It's not exactly "Show me your papers, citizen," but in more than two dozen U.S. states, "identify" laws require residents to identify themselves to police officers who stop them. The laws make sense so long as you imagine them being applied exclusively to actual bad guys. They make less sense when you apply them too law abiding citizens.

3 If this sounds similar to the controversial stop-and-frisk policy that made headlines in New York City, that's because the two have similar roots. The U.S. Supreme Court gave its seal of approval to stop-and-identify laws in The case in question involved a Nevada police officer who was dispatched to investigate a roadside domestic violence incident. When the officer arrived, he found a woman sitting in a parked pickup truck and a man standing beside the vehicle. Whatever dispute witnesses had seen was apparently over, and so when asked to hand over his ID, the male suspect refused, claiming there was no evidence he'd broken the law. The officer explained that he was conducting an investigation, and that the man would be arrested if he didn't identify himself. Arrest me, the man said. The officer obliged, and he was convicted and fined for obstruction. He appealed his conviction all the way to the U.S. Supreme Court, arguing that the order to identify himself had violated his Fourth and Fifth Amendment rights. Five of nine justices disagreed on these grounds: 1.) Nevada's stop-and-identify statute granted police reasonable authority that, when exercised appropriately (like during a domestic violence call) outweighs the privacy of a suspect. 2.) Asking for ID is consistent with the "purpose, rationale and practical demands of a Terry stop." By arguing that the Terry ruling allows for stop-and-identify (it's also what allows for stop-and-frisk), the court rejected the idea that Nevada's law would allow police to demand ID without cause. There has to be a "lawful basis for the stop in the first place," and a domestic violence report falls in that category. And thus we get the Police stopping a man who they arguably had cause to stop - jaywalking being illegal and all - and then deciding to arrest him when he failed to identify himself. But were the officers really justified in arresting him? The Police Chief told the local media that he reviewed the stop - which began when the jaywalker recoiled after a police officer grabbed him while he was jogging across the intersection and saw nothing objectionable on the part of his officers. He added that if he'd been the one conducting the arrest, he "wouldn t have been as generous." Considering that the jaywalker initially jerked his arm away (witnesses have told reporters he appeared to be wearing headphones, and so was taken by surprise when the office grabbed him) and then refused to comply with the officers' requests. It's easy to imagine a city attorney coming to a similar conclusion, and arguing both obstruction and failure to identify. Yet when reviewed by the defense attorney pointed out that in Texas, failure to identify is only a crime if you're being arrested, but not if you've only been detained. That distinction is important, as the jaywalker was only detained when he refused to identify himself. As the defense attorney also pointed out that the jaywalkers decision to sit down while handcuffed likely wasn't an arrest offense, as Texas courts have concluded that "refusing to cooperate with being arrested does not constitute resisting arrest by force." The Failure to Identify crime in the state of Texas gives police officers the right to arrest you if they believe you have intentionally refused to give them your name and other identifying information (or if you give false information about yourself) when you have been arrested or

4 detained or if you are a witness to a crime. The punishment for this offense ranges from a Class C Misdemeanor to a Class A Misdemeanor, depending on the specific allegations. Failure to Identify is classified in the Texas Penal Code under Title 8 Offenses Against Public Administration, Chapter 38 Obstructing Governmental Operation. The crimes in this category are ones that generally relate to actions taken that work directly against government processes, such as administration of justice or incarceration. How can I be charged with the offense of Failure to Identify? Failure to Identify is defined in Section of the Texas Penal Code as follows: 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. 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: lawfully arrested the person; lawfully detained the person; or requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense. The Failure to Identify statute has two different facets. First, the law requires you to give your name, address and date of birth if you are placed under arrest by the police. Secondly, it criminalizes giving false or fictitious information to a peace officer, but this only applies if you have been lawfully arrested, lawfully detained or you are a witness to a crime. Note that it is not a crime to refuse to provide your name or other biographical information when you are questioned as a witness. Refusing to identify yourself can mean that you tell an officer you refuse to provide that information, or even just not saying anything at all. For example, if you are arrested by a police officer, and he asks where you live, if you were to say I don t want you to know. That would be a refusal to provide information. False or fictitious information means any sort of information that is not accurate, such as a nickname that is not your legal name or a home address that doesn t actually exist. For example, if you are detained by a police officer, and he asked for your name, if your real name is William and you said John Doe, you would have provided false information and would be guilty of the Failure to Identify offense. What about other states? I don t live in Texas. But this isn't just a Texas (or Nevada) thing. The NYPD made headlines in 2011 when it detained a woman for 36 hours under New York's version of stop-and-identify. Police found the woman and a friend, both of them visiting from Pittsburgh, strolling through Riverside Park after hours, and demanded to see their identification. The friend showed his ID, was given a ticket and then told to go on his way. But the woman had left her ID in her hotel room. Under New York's stop-and-identify law, she was arrested and detained for 36 hours before appearing before a judge, who immediately dismissed the ticket.

5 In some states, a person questioned by a law enforcement officer is not required to respond. However, many states have passed stop-and-identify laws. These laws permit a law enforcement officer to stop a person suspected of criminal behavior and ask for identification. Failure by the person stopped to respond is a violation of the law and can lead to arrest and charges. Some states do not have stop-and-identify statutes. Related statutes in these states vary, and some require a person to respond to the officer s request for identification, and some do not. However, if a person does voluntarily elect to answer, providing false information is usually a crime. In states that have stop-and-identify laws, the prosecutor has to prove two things in order to get a conviction: the law enforcement officer lawfully stopped the defendant, and the defendant refused to identify him or herself. What is the penalty range in Texas for Failure to Identify? If you are charged under Section (a) of the statute (which refers to refusing to provide information), it is a Class C misdemeanor, punishable by up to a $500 fine. 1 If you are charged under Section (b) of the statute (giving false information), it is a Class B Misdemeanor, punishable by up to 6 months in county jail and a $2000 fine. However, if you are a fugitive from law, which means you have a valid warrant issued for your arrest, the punishment is increased by one level. Therefore a Class C Misdemeanor for refusing to identify becomes a Class B, and a Class B Misdemeanor for providing false information becomes a Class A Misdemeanor. Another possible exception to the penalty range described above has to do with a minor representing that he or she is over 21. In that case, the punishment will be assessed under Section , Alcoholic Beverage Code. I was confused and did not intend to refuse to give information, or to give false information. Can I still be charged? According to the Texas Penal Code, you must intentionally refuse to identify yourself or intentionally give false information in order to be convicted of the Failure to Identify crime. So if you did not purposefully refuse to identify yourself or give false information, then you should explain this to your criminal defense attorney so that you can help defend against this charge. The law says if I am lawfully arrested or detained. How do I know if the action by the peace officer was lawful? If you try to argue with a police officer that your arrest was unlawful at the time you are being arrested and refuse to give your information on this basis, the officer may accuse you of the Failure to Identify offense. A lawful arrest is a legal concept that attorneys are trained to

6 evaluate based on the particular facts of each arrest. Whether the arrest was lawful will be determined after the fact, and there is no good faith exception to the offense. So be wary of relying on the unlawful arrest exception at the time you are being arrested. If you believe that your arrest was unlawful, it is important to let your criminal defense attorney know so that your attorney can investigate this. I was not detained or arrested, but a peace officer asked me questions thinking I was a witness to something. How do I know if they had good cause to believe that? Much like knowing whether an arrest or detention was lawful, it may not a good idea to assume that a police officer did not have good cause when questioning you. If you believe that a police officer did not have good cause to question you as a witness, notify your criminal defense attorney as soon as possible so that your lawyer can investigate this. Don t I have a right to remain silent? Doesn t that mean they can t force me to say anything? As you may have seen on television, when someone is read their rights, those rights include the phrase you have the right to remain silent. However, when this issue was brought before the Supreme Court of the United States 6, the Court decided that this right only applies to communication that is testimonial, incriminating, and compelled. The Supreme Court decided that this meant that names and biographical identifying information is not protected by the 5th Amendment right to remain silent. So your right to remain silent doesn t extend to giving your name, address, or date of birth, and if you are arrested, then under Texas law, you must provide it.