Apocalyptic constitutional moment ahead.
The case of Dudley Hiibel, as Dahlia Lithwick describes it in her recent article, is not just about privacy and national hysteria in wartime. It's about a constitutional watershed and here's why: Hiibel was, you'll remember, the drunken cowboy parked alongside a Nevada highway who refused to reveal his identity to a policeman, after being told plainly that the cop was "investigating an investigation." Actually, the police had received a call describing Hiibel's truck and location and saying that a couple were apparently having a fight inside. So, yes, the policeman had a reasonable suspicion when he approached Hiibel. But he didn't share that information with the suspect.
The question for the Supreme Court this month is whether the police could demand Hiibel's identity, and without more than his refusal, arrest the cowboy for obstructing their work. Lithwick says, in effect, if the police could have frisked Hiibel on reasonable suspicion, which they probably could, then what's in a name, and why not arrest him for refusing to give it? She also chides the "hysterical" friend-of-the-court briefs on both sides, which see this as an apocalyptic constitutional moment.
But I think they might be right—the kind of folks lining up on each side of Hiibel are the same as those who fought so hard in Terry v. Ohio, the original stop-and-frisk case, which was, we can all agree, an apocalyptic moment in our history. Terry came down in 1968—the year Robert Kennedy and Martin Luther King Jr. were assassinated, cites burned, and Richard Nixon was elected on a law-and-order platform. That was the national backdrop when the Supreme Court upheld the forcible interaction of the police with citizens without having cause to arrest.
The Warren court—at its most liberal in composition—did this because the times were so parlous and the needs of law enforcement so great. But the court built into the case some careful restraints on this new Fourth Amendment interpretation. Under Terry, the encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most important, the suspect must be free to leave after a short time and to decline to answer the questions put to him. (That is Justice William Brennan explaining Terry in Kolender v. Lawson, where a statute something like the one being challenged in Hiibel was found unconstitutionally vague.)
Only Justice William O. Douglas dissented from the Terry holding—even with all its careful limitations—and warned of "the powerful hydraulic forces" that water down Fourth Amendment rights—particularly in a time of perceived national peril. He was certainly proved right. Here is a recent example for you: Police patrolling a high-crime area see a bunch of young black men on the street and one of them, Willie Wardlow (aka Sam) notices the police and runs.
The Supreme Court held that the police may chase him down, and when they catch him, they may touch him all over his body wherever they might find a weapon. The 2000 case Illinois v. Wardlow, holding that flight in and of itself, in the urban ghetto at least, can rouse reasonable suspicion, was a 5-4 decision, where each side of the court seemed to be living on a different planet in regards to the needs of law enforcement. It, too, attracted the passionate amicus briefs in much the same lineup as in Hiibel and Terry.
In yet another recent case, United States v. Arvizu, argued two months after 9/11, the court unanimously found reasonable suspicion to stop a vanload of adults and children near a border, mainly because they slowed down when they saw the police (and the children waved suspiciously also).
So assume that the court agrees with the state of Nevada in Hiibel—that giving one's name on demand of the police when they are legitimately investigating on reasonable suspicion, is a minor indignity at best. What will happen next?
First, many states and the federal government will pass statutes like Nevada's (many already have) making it a crime to refuse to identify yourself to the police on less than probable cause. Then, say during an orange-alert period for terrorist activity, police near an airport, or in a busy urban center, see a dark man looking around furtively, who turns and walks away rapidly. With Terry and Wardlow and Hiibel (if it is decided for the government), the police may run him down and—without suspecting him in particular of anything specific—demand his identity and arrest him if he refuses to give it. Is this America?
This will happen to thousands of dark young men, and I would venture not one suicide bomber will be among them. Or at least not one will be revealed without other investigation. Meanwhile, in the name of security, we will have abandoned our much-vaunted liberty to walk freely on the streets surrounded by a zone of privacy and even anonymity—not numbered and in place; not responsible to explain ourselves on demand by the government.
Barbara Allen Babcock is a professor at Stanford Law School. She is writing a book about Clara Foltz, the pioneer woman lawyer who invented the public defender.