So here's something weird: If you checked blogdex last week, you were likely to find a link to this site somewhere up at the top. Not so usual to see Web sites dedicated to pending Supreme Court litigation rocking the Internet world ... but then, the case of Dudley Hiibel is not your everyday piece of pending litigation. Hiibel has thus far been flying under the national media radar; a Nexis search turns up fewer than 50 stories in two years—including some on the unrelated exploits of a runaway bear cub in Reno. But the case, which will be argued March 22, is gaining traction in the media because its facts offer the perfect storm of a cause—combining our national fascination with rugged Western individualism, declining civil liberties in wartime, and simmering paranoia about government surveillance. In a case about privacy after 9/11, Dudley Hiibel is Jose Padilla meets the Marlboro Man.
The legal issue is simple: Do the cops have the right to demand your ID before they have ascertained that you've done something wrong, and can you be arrested for refusing to comply? At a moment when the discussion of national ID cards simmers, the notion that the state can swoop down in black fedoras and demand your papers for no reason strikes terror in the hearts of liberals and conservatives alike. But while law professors may fret about privacy in the pages of the New York Times Book Review, it took a while for the rest of us to settle on a national champion—other than the dark-skinned men wasting away in military brigs for trying to blow up Americans.
So meet Dudley Hiibel. He's an honest-to-goodness cowboy. Check him out. After you do that, watch the video of his arrest here. My colleague David Edelstein would likely agree that it's a bit thin on plot, and the dialogue can be repetitive. (Hiibel appears to be hammered and belligerent, but then, maybe it's just righteous constitutional fury.) You can read the John Wayne-style transcript here.
The growing national attention to Hiibel's case mainly reveals what the backlash against the Patriot Act promised: that people on the right and the left can all get along when it comes to fear of the state, especially when it involves persecuted librarians or—even better—a red-blooded American guy with a pickup. Here's a recent Washington Times editorial arguing that cowboys shouldn't have to hand over drivers' licenses to jackbooted cops as we ride our horses freely over the wide-open ranges at sunset. You almost want to call Dwight Yoakam to set the thing to music.
The facts of the case are largely undisputed, thanks to the video footage. Police outside Winnemucca, Nev., were advised by a dispatcher that a man was hitting a woman in a truck. The cops pulled up to the truck—stopped abruptly on the roadside—and found Hiibel leaning in the passenger-side window having a smoke and his daughter, Mimi, 19, inside. Hiibel appeared to the officer to be drunk. The officer asked Hiibel for identification. Hiibel asked why. The office gave a flip answer. Hiibel became annoying and combative (or heroic and valorous). Back and forth they went 11 times, with the cop seeking ID and Hiibel refusing. Hiibel said again and again that the cop should arrest him, and the cop finally took him up on it. The daughter was then yanked ungently from the truck, and both were taken away. Hiibel was found guilty on a misdemeanor charge of resisting arrest. The charges involving the alleged assault on his daughter were dropped. He was fined $250.
Nevada law NRS 171.123 provides that the police "may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime." And that "[a]ny person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer." (Various states have similar laws, as you can see in the appendix here). Hiibel challenged this law in the district court and at the Nevada Supreme Court, * arguing that it violates the Fourth and Fifth Amendments to arrest someone for refusing to identify himself to a cop. But the Nevada Supreme Court upheld the law as constitutional.
The case law begins with a wee hiccup Terry v. Ohio—a Supreme Court case from 1968 involving two suspicious-looking guys who were only semisuspiciously casing a store. The police didn't have probable cause to believe they were committing a crime but just a hunch that something was wrong. The court held that cops could conduct a very limited search based on that something, called "reasonable suspicion"—including a brief frisk and pat-down, chiefly to protect their own safety. The court intimated in a concurrence by Justice Byron White that suspects did not have to answer police questions during such searches and couldn't be arrested for failure to do so.
The Nevada ID statute seems to cut against that hiccup in Terry, as well as two subsequent Supreme Court cases—a 1979 case, Brown v. Texas, in which officers were held to have violated the Fourth Amendment when they demanded the name of a guy who was merely walking in a high-crime area, and a 1983 case, Kolender v. Lawson, in which the court found a California law requiring vagrants, on demand, to provide "credible and reliable identification" unconstitutionally vague.
Then, last year, the 9th Circuit Court of Appeals decided a case involving a man falsely accused of cheating (with a Get Smart-style shoe-computer) at a Nevada casino. He was arrested when he refused to give his name to the gaming authorities. In Carey v. Nevada Gaming Control Board, the 9th Circuit held that the Nevada ID statute violates the Fourth Amendment because "compelling an individual to identify himself violates the 4th Amendment." The Nevada Supreme Court found the analysis in Carey to be unpersuasive—which has become something of a cottage industry.
The Nevada high court started off by pointing out that "Fundamental to a democratic society is the ability to wander freely and anonymously, if we so choose, without being compelled to divulge information to the government about who we are or what we are doing." And that this "right to be let alone" (as Justice Louis Brandeis once characterized it) is protected by the Fourth Amendment. But the court went on to parse the "reasonableness" requirement in the Fourth Amendment's ban on "unreasonable searches and seizures" and found, by a 4-3 margin, that demanding ID even before there is probable cause for an arrest is perfectly reasonable.
The more hysterical op-eds tend to focus on the hysterical nature of the majority opinion: that the justices work themselves into something of a kooky lather about the dangerous world we live in—school shootings, terrorists, sex offenders, anthrax, none of which has anything at all to do with this case. The Nevada Supreme Court's majority did itself no favors by grounding any of its reasoning in the heightened need for police authority post-9/11. Their logic practically begged the Cato Institute to join with the ACLU in filing amicus briefs in this case. But if we can strip away the hysterical rhetoric on both sides of the issue—and let me assure you that the Cato brief is as loopy in places as the Nevada Supreme Court's exercise is paranoid—it's worth recalling that this case isn't about the cops being able to arrest you for failing to wear a yellow star. The case isn't about "the entirety of American freedom." The issue is simply whether the state has a right to know who you are once it's established that you are behaving suspiciously.
It would be easier to credit the Cato and ACLU arguments if we didn't already have to hand over our ID to borrow a library book, obtain a credit card, drive a car, rent videos, obtain medical treatment, or get onto a plane. So the stark question then becomes this: Why are you willing to tell everyone but the state who you are? It's a curious sort of privacy that must be protected from nobody except the government. Is there something about stating your name or handing over a driver's license that differs from being patted down or frisked, which is already constitutional for Terry purposes?
I, for one, would rather hand over my driver's license to a cop than be groped by one.
The slippery-slope arguments—that this leads to a police state in which people are harassed for doing nothing—won't really fly, although I guarantee that you'll hear more and more of them in the coming weeks. These statutes are triggered by an officer's reasonable suspicion that you've done something wrong. Hiibel forgets to mention on his Web site—and his fans neglect in their editorials—that someone saw him punch his daughter and that an officer reasonably believed he was driving drunk.
I know I must be wrong on this issue. Wrong or Canadian. And I count on you to tell me why. But I can't help but feel that we're more overheated on this question than it warrants. The notion that there is an inviolate privacy interest in the neutral, non-incriminating disclosure of your identity—akin to the privacy interest in what you do behind your closed door—is simply not borne out by modern life.