Yes, Police Can Arrest You for Failing to Identify Yourself
The very latest in outrage-inducing viral video comes courtesy a Texas jogger who was recently arrested and dragged into the back of a squad car after police stopped her for jaywalking. Captured last week by a student at the University of Texas at Austin, the footage shows 24-year-old Amanda Jo Stephen handcuffed, sitting on the ground, crying, and exclaiming that she did nothing wrong.
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 Stephen? The Daily Texan posed that very question to the Austin Police Department, 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, well, 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 watch the video below:
If this sounds similar to the controversial stop-and-frisk policy that's 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 2004. 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 Larry Hiibel was convicted and fined for obstruction. Hiibel 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 SCOTUS's nine justices—Anthony Kennedy, William Rehnquist, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas—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 in NY), 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 Austin PD stopping a woman who they arguably had cause to stop—jaywalking being illegal and all—and deciding to arrest her when she failed to identify herself.
But were the officers really justified in arresting Stephen? Austin Police Chief Art Acevedo told local media that he reviewed the stop—which began when Stephen recoiled after a police officer grabbed her while she 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 Stephen initially jerked her arm away (witnesses have told reporters she appeared to be wearing headphones, and so was taken by surprise when the office grabbed her) 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 Texas attorney Rob Daniel pointed out to me 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 Stephen was only detained when she refused to identify herself. As Daniel also pointed out, Stephen's decision to sit down while handcuffed likely wasn't an arrestable offense, as Texas courts have concluded that "refusing to cooperate with being arrested does not constitute resisting arrest by force."
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 21-year-old Samantha Zucker 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 ticketed, and told to go on his way. But Zucker 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.