I have to admit, this case is moderately baffling, in a way.
Hiibel Thumpers - The Supreme Court is suspicious. By Dahlia Lithwick: The Supreme Court hears oral argument this morning in the "drunken cowboy" case, a privacy dispute that has the conspiracy nuts in a tailspin and me in trouble with my Civil Procedure professor. The issue in Hiibel v. Sixth Judicial District Court of Nevada is variously described by the amicus briefs and the editorialists as whether the police have the right to demand your "papers"; mandate national identity cards; and impede ordinary citizens' freedom to roam free. But as the justices on the Supreme Court weigh in today, it's clear most of them don't see the case this way. One after another dismisses the national ID card debate as not at issue here. One after another suggests -- and to a rather frightening degree, at times -- that this case has nothing to do with innocent people, or ordinary people. This case has to do with "suspicious" people, and -- as you were no doubt aware -- suspicious people are not like you or me.
Here's the thing: most people are going to find it baffling that revealing your name means anything important, in this sort of circumstance. Especially when there are other ways of obtaining the information, such as running the license plate and asking whether or not this is your vehicle (and only a fool would answer that it wasn't his or her vehicle when asked ... although it's entirely possible that the response would be, instead, "Why are you asking?", which gets around answering the question, if not particularly effectively).
The problem with the Fifth Amendment approach, as I understand it, is that the only time offering up your name would be incriminating is if they do, in fact, have a warrant out for your arrest (or at least, for the arrest of a person with the same name). And I'm truly baffled as to how asking for someone's name could be considered a search in Fourth Amendment terms. This case is likely to be a very bad one for setting up any sort of hard, bright rule about, "Yes you MUST state your name at all times when asked" or "Here are the times when it's reasonable to withhold your names". (Let's face it: in this particular case, the police manifestly and grossly exceeded their authority ... and Mr Hiibel seems to be something of a yahoo looking for a dust-up. Well, he got it, didn't he? Mind, I am amazed that he's managed to keep the case going this long, and truly astonished that the state of Nevada, in a case involving what wound up being misdemeanors, agrees to keep going against its own interests and funding the public defender's office for this. Most states would have yanked the fiscal plug on this after the state supreme court decision, if not long before.)
We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves -- unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward -- to use Scalia's formulation -- and cooperate. This idea that the "suspicious people" (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police's historical treatment of them. It's a shame Justice Clarence Thomas doesn't speak today. One can imagine that he has at least some idea of what it means to hold "suspicious" people to a different constitutional standard.
Hmph. Justice Thomas has seldom, if ever, demonstrated that type of empathy and insight. To be as neutral as one feels like being regarding him (which is not very), he would not let how such things have historically been done stand in the path of his belief in what the constitution mandates should be done. Which tends to be hard on minorities of all stripes, for obvious reasons.
Posted by iain at March 23, 2004 12:27 PM
