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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
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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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