Articles by Claire Guthrie Gastañaga
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Stop and Identify Laws Create Additional Concerns for Immigrants
Qué Pasa Washington, Vol. 1, Issue 3, October 2004, pp.11-13

While immigrant communities in Virginia are still struggling to understand the implications of the new state law giving state and local law enforcement agencies very narrow authority to enforce federal immigration laws (HB 570/SB 493), a recent decision by the United States Supreme Court may further complicate matters by encouraging Virginia localities to adopt so-called “stop and ID” laws. 

“Stop and ID” laws purport to authorize prosecution of a person simply for refusing to give his or her name to police when requested.  What is clear is that the issue is more complicated than many believe, and, particularly so for persons who are not lawfully present in this country.

On June 21, the Supreme Court decidedHiibel v. Sixth Judicial District Court of Nevada upholding the constitutionality of Nevada’s “stop and identify” statute.  Previous Supreme Court decisions had left unanswered the question whether a suspect stopped lawfully by a police officer can be arrested and prosecuted simply for refusing to identify him/herself after being asked.  In Hiibel, the Court answered the question with a resounding “yes.”

The Nevada statute at issue in Hiibel tracks earlier decisions of the Court that “recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.”  The Nevada law provides that a law enforcement officer 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.”The Nevada law further states that “Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”

Analyzing a case brought under this law, the Supreme Court held that, where the stop clearly is authorized, and the person detained is not required to do anything but state his name, the federal constitution permits the person to be prosecuted for refusing to provide his name.

The Court’s seeming endorsement of “stop and ID” laws in Hiibel breathes new life into efforts by localities in Virginia to adopt and enforce ordinances similar to the Nevada statute at issue in that case. Arlington County is one of a handful of local jurisdictions in Virginia that currently has a “stop and ID” law.   Others jurisdictions that passed such laws before the Court’s recent decision are the Cities of Manassas, Roanoke, Salem and Virginia Beach and Stafford County. New "stop and ID" ordinances are now under consideration in Richmond and Norfolk.

Immigrant communities and their advocates should watch these developments closely.  “Stop and ID” laws pose special dangers for undocumented immigrants whose identity alone could reveal their status.  As localities consider implementing these laws, it is important for policy makers to understand how these statutes could further erode the ability of law enforcement to engage in effective community policing in immigrant communities, and it is equally important for policy makers to be educated regarding the requirements that must be met for any “stop and ID” law to conform to the Court’s ruling.

First, any local ordinance and the actions of the police officer authorizing or effecting a stop or detention pursuant to the ordinance must clearly comply with the constitutional requirement that the stop be based on “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.”  “Stop and ID” laws are not a free pass to engage in stereotyping or biased policing nor do they authorize any officer to stop a person who is not engaged in criminal activity, for example, a person attending a sporting event or simply standing on a street corner.

It does not appear that the Arlington law (or other similar local ordinances) currently meet this standard.  The Arlington ordinance allows the officer to ask a person to identify himself or herself “if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.”  The language of the Arlington ordinance does not link the request for identification to a constitutionally justified stop, as was the case with the Nevada statute.
Second, the Court’s decision that the Nevada law was constitutional was based in part on its finding that “the statute does not require a suspect to give the officer a driver’s license or any other document.” Furthermore, the Court stated that “an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.” In other words, the request for ID may not extend beyond a request for a person’s name and that request must be related to the officer’s investigation of the suspected criminal activity that justified the stop in the first place.  Because the Arlington County ordinance (and other similar ordinances) requires the person to provide “a name and address,” it goes beyond what the Court approved in Hiibel and prior cases.

Finally, the Court left open a question in Hiibel that might have been answered differently for a person stopped who is an undocumented immigrant or other person not lawfully present in this country.  The Supreme Court refused to decide on the facts of the Hiibel case whether there are cases where simply requiring disclosure of the person’s name to the police would violate his/her right against self-incrimination protected by the Fifth Amendment to the United States Constitution.

In Hiibel, the Court held that the suspect’s refusal to give his name was “not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it ‘would furnish a link in the chain of evidence needed to prosecute’ him.”   The Court specifically held open the possibility that there might be a case where a suspect could claim that the Fifth Amendment would protect him from being prosecuted under a “stop and ID” law for refusing to give his name.  Where a person’s name is the first link in the chain of evidence necessary to determine a person’s citizenship or immigration status, one might reasonably ask whether that could be a circumstance in which the Court would hold that the person is protected by the Constitution from giving his/her name to a law enforcement officer.

The last issue deserves further review by immigration lawyers and constitutional scholars.  Regardless of the results of such review, however, the complexity of this issue and the potential for additional erosion in the trust between immigrant communities and law enforcement agencies argues for a skilled hand in drafting any such laws or ordinances and for care in analyzing the costs and benefits to localities and communities of passing and enforcing “stop and ID” ordinances in the current climate.

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