How so?
The issue isn’t a statute requiring carrying of identification. The issue is whether or not you must produce an identification card upon request. The words “if available” could easily be interpreted to mean “if one has been issued to you.” As I noted earlier, under such an interpretation, a response that you don’t have identification would presumably be an obstruction of justice.
anson, there is simply no realistic constitutional argument that would preclude forced identification. It is a myth that such a requirement would be unconstitutional; as Wooden Taco says, “How so?” And, in reality, we are fast approaching the point where the issuance of a Social Security Number is, in all practical effect, the issuance of a national ID card.
But only in the instance that the state you are in has passed a “Stop and Identify Law”. With no law on the books, under what authority could you be arrested for “failure to identify yourself” ?
And the other comments in Hiibel seemed to take a dim view of a statute which would require the carrying of ID. But no poster here has showed any state law which requires the carrying of a state issued ID for simply being in a public place…
Well, I guess I wasn’t thinking so much about the idea of a national ID card as I was about the idea of being required to have proper identification in order to travel (“walk the sidewalk”). Several constitutional issues were raised in Gilmore v Gonzales – first, fourth, and fifth amendment issues – and I don’t think the appeals court’s ruling dismissed those issues at all. They said that the constitutional arguments didn’t apply to Gilmore’s particular case, because his refusal to provide ID didn’t result in his being arrested, just being denied boarding.
I agree that the idea of a National ID is constitutional – that we might all be required to present one in order to do certain things like board a a plane or open a bank account. But I’m not sure we can be required to carry one at all times and be punished simply for failing to produce one. I don’t think that’s constitutional. In fact, Hiibel makes the distinction between requiring someone to identify himself and requiring him to produce a certain document, like a driver’s license.
Seems pretty clear you have to identify yourself if you are in public, but what if someone is trying to “live off the grid”? I live near St. Louis and 90 miles southwest in the Ozarks or 60 miles southeast in southern Illinois, there are folks (a small number, granted, not to mention even more remote places in Arkansas, the Appalachian area, Montana, Idaho, etc.) who have a tradition of low interaction with government and society in general, basically isolated from “modern” society from the get go or are deliberately trying to get away from it.
If these people don’t register with SS and don’t have a drivers permit, but somehow came to the notice of the authorities, how does the government require them to identify themselves?
They ask you your name and you tell them.
Nobody is required to have any particular form of identification. You need a license to drive. You need a passport to cross the border. You need a SS card to get a job. If you don’t want to engage in those activities you don’t need those items.
The authority to stop you in cases where an officer has a reasonable suspicion that you are committing or have committed a crime exists even without a Stop and Identify statute; the Supreme Court has established that in such cases an officer has the ability to briefly detain you (Terry v. Ohio, 392 U.S. 1 (1968)). During this detention, the officer has the ability to ask you for identification. Since he is lawfully detaining you in the course of the investigation of a crime, your failure to offer identification can be construed (depending upon the specific statute a given state has) as obstruction of justice. Thus, it was not relevant to the outcome in Hiibel that there was a Stop and Identify statute; Mr. Hiibel’s conviction for obstruction of justice could have been sustained even in the absence of the statute.
As to making inferences from the language in Hiibel, I caution against drawing too many. Mr. Hiibel (or his attorneys) made much of a footnote in the Koleder v. Lawson, 461 U.S. 362 (1983) (footnote 9) case which stated, “To the extent that 647(e) criminalizes a suspect’s failure to answer such questions put to him by police officers, Fifth Amendment concerns are implicated. It is a “settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.” Davis v. Mississippi, 394 U.S. 721, 727, n. 6 (1969).” But in Hiibel, the Justice Kennedy, writing for the Court, discounted this theory entirely, stating that Hiibel had not shown that answering the question would in any way potentially incriminate him. So, the moral is, don’t make assumptions about what the Court would do based upon inferences from obiter dicta and/or the tenor of an opinion.
Again, I am going to ask for a specific statement of what constitutional violation occurs by requiring either the procurement of identification or the production of same when otherwise legitimately stopped by an officer? Think this through.
Let us suppose that the State of Ohio passes a law requiring all adults (age 18+) to have a state-issued identification card, and to carry it on their persons any time they are outside their own domicile recorded on the identification card. Does this law violate the constitution, and, if so, how? What amendment is violated? How is it violated? You are not being forced to submit by this law to any search or seizure. You are not having your First Amendment freedoms abridged. You are not having your Fifth Amendment rights violated. What is unconstitutional about this statute?
Now, assume the statute is constitutional. Assume that the State of Ohio provides that failure to obtain such ID is punishable by fines and/or imprisonment, and failure to carry it with you also is punishable. I decide to walk down the streets of Toledo one day. My ex-wife, with an axe to grind, calls the local police department and tells them that I burned my identification card at a mass protest the day before, and, thus, have no identification on me. The department questions her enough to have a valid suspicion that I am, indeed, cardless on the day of my walk. So they send an officer out, and he approaches me, with a reasonable belief that I am violating Ohio’s ID Carry law. He stops me and asks me to produce identification. I tell him my name, my address, and nothing else. I do not produce an identification card. He arrests me for violation of the Ohio ID Carry law.
Explain, please, what the constitutional violation is, if any, that has occurred? The stop is clearly lawful under Terry, so if a violation has occurred, it can’t be because the seizure was unreasonable. Where, then, is the violation of the Constitution?
We live in a state that so far has not resorted to “Big Brother” tactics, not because the government is precluded from using them, but because it chooses not to use them. Presumably, this is because our society prefers it that way, though, at times, we have lost our convictions in this regard (see, for example, the McCarthy hearings). If we are to avoid the imposition of things like a national identification card, it will not be because some vocal minority points to the Constitution, because that document doesn’t stop the government from being “Big Brother.” It will be because we as a whole remain vigilent in opposing attempts by the government to convert our society and way of life to another paradigm. And if we are not vigilent in this regard, it will mean that society no longer prizes the freedom from strong state control of individual actions that has been our paradigm to this point.
And yes, Gilmore v. Gonzales is not apposite in any way. 
Very well stated. Thank you.
It could be construed as violating your right to privacy. However, I am certain that such a law would be challenged in the Courts, but not being a lawyer I don’t know exactly under what provisos or Common law decisions they would challenge it under or what the Courts would rule. Do you beleive such a law would not be challenged?
I think he’s saying the challenge would fail.
I’m not talking about a Terry stop at all. I’m talking about the hypothetical law suggested by silenus, where everyone would be required to a) have and carry a specific form of ID, and b) produce it on request or face prosecution. (That’s basically the same as the hypothetical Ohio law you described).
We both agree that state law can require you to identify yourself as part of a legal stop-and-frisk interaction. But if the police detain you without meeting the Terry criteria (or the criteria set forth in state stop-and-identify laws), it’s a fourth amendment issue. If the silenus law says that you need to present specific “papers” to be present in a public place, that’s a 14th amendment issue (see Chicago v Morales), and perhaps also a first amendment issue.
Well, the fact that there’s 50 states, some of them with a small very conservative population, and such a law has never AFAIK been passed might be an indication that it would not stand such a Court Challenge. In any case, “what ifs” go somewhat outside the scope of GQ into GD. I am certain such a law would be challenged, on what grounds and how successfully remains to be seen. Does anyone claim such a law would not be challenged? 
*Has *such a law ever been proposed? What was the reaction? Did they get advice saying “Don’t bother, it isn’t Constitutional”? Why wasn’t it passed?
Right.
Brown v. Texas, 443 U. S. 47 (1979): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=443&invol=47&pageno=52 (Emphasis added).
Then again, it might not. Hard to tell really.
I’m fairly certain it would be challenged. I’m less certain about the result of the challenge. Were I retained to represent the challenger, I doubt the argument quoted above would make it into my brief, and given the current disfavor for substantive due process and composition of the Court, I’d probably try to lead with something else. Thing is, there’s not much to work with.
That is an interesting series of historical questions to which I don’t know the answers. I will note, however, that legislatures pass laws all the time over advice that they are, or could be unconstitutional, and that some even pass laws that clearly are unconstitutional according to controlling caselaw.
I see what you are driving at with regard to the “have papers or else” idea. And in general I agree that the police cannot under current interpretation of the Fourth/Fourteenth Amendments stand on the street corner and ask you to present your papers absent suspicion that you are involved in a crime. However, I will simply offer one word that would go a long way towards accomplishing that: checkpoints. 
As to the present the papers or else you can’t get in, I think that was pretty well disposed of in the Gilmore case we discussed above. And, if my memory isn’t playing tricks on me, I can think of at least one case where the fact that a person turned around rather than enter a checkpoint was used to support a decision to seize him lawfully (along with other factors). So, let’s assume that Ohio has instituted the “Must Carry ID” law, and conditions entry to certain public buildings upon presentation of ID. The fact that they can require the ID to obtain entry is established through Gilmore. The possibility of using a decision to turn away when ID is demanded as basis for formulating a particularized and reasonable suspicion that the person is breaking the Must Carry ID law … ?
The Chicago v. Morales, 527 U.S. 41 (1999) case you cite is not of any help either way. While the three liberal justices would have ruled the anti-loiter statute a violation of the Fourteenth Amendment, the rest of the Court refused to go along with that concept, focusing instead on the over-broad discretion given to the police, and the lack of specificity in defining what behavior was criminalized (applying Kolender). So Morales doesn’t stand for much of anything where the Fourth/Fourteenth Amendments are concerned.
Someone raised the issue of the “right to privacy.” Such a right in the U. S. Constitution, at least, has a very, very narrow (to date) scope. It is doubtful that the current Court would be in any way willing to extend the scope of that right. You will note that there is no enforceable “right to privacy” in the text of the Constitution; some people read it into the concept of “liberty” in the Fourteenth Amendment, though this is problematic in the sense that that would mean it wasn’t applicable as a right against the federal government, which, among other things, would mean a state can’t block abortions, but the federal government could (say WHAT?). However, some states have the right to privacy enshrined in their own consitutions (e.g. California). In such cases, the assertion that mandatory ID might violate such a right might get some play.
Interestingly, usually liberal California wasn’t far away from this concept, which is why the Kolender case, cited above, came about. The California Penal Code section in question stated “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (e) who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.” Now, obviously that’s not quite a “you must have ID” statute, but it IS an attempt to give a broad authority to police to establish a person’s identity and remove undesirables who can’t or won’t identify themselves. The statute was held to be unconstitutional because of it’s overly vague language, specifically, as interpreted by California courts, the requirement that a person present “credible and reliable” identification. Left unaddressed is what would happen if the statute had been re-written to specify exactly what identification was required (a la my hypothetical Ohio Must Carry ID law).
However, in general, just because some state hasn’t passed a law doesn’t mean it would be unconstitutional if passed, and that’s the reason it hasn’t been. As I have stated, I believe it is our society’s general abhorrence of the concept of “Big Brother” that has stood in the way of efforts similar to those we see currently adopted by the federal government to combat terrorism. After all, there are a goodly number of things states could pass laws about constitutionally that they don’t, some even having to do with things large segments of their population might want to see addressed.
IIRC, one of the spin-offs of *Ingersoll v. Palmer * (43 Cal.3d 1321 (1987) was that, as far as sobriety checkpoints were concerned, turning around to avoid one could not be used as probable cause to stop someone. I’ll see if I can find the specific cite.
In any case, it seems that “Let’s see your papers, old man” is still a ways away in this country. Maybe.
http://www.roadblock.org/statecases/necase.htm (Nebraska case).
http://sandiegodwi.com/sandiego-dui-checkpoint.html
ahhhh . . .
http://www.goinglegal.com/article_61345_18.html (discussing Ingersoll)
Those are the ones. Thanks.