Proving real ID if accused of fake?

Factual Questions
41

My state allows stores/bars to sue an underager who comes into their establishment and buys/gets served alcohol:

C. A licensed alcohol beverage retailer may bring a civil action against a person who violates the state’s underage drinking law, if the following conditions are met:
• The conduct must occur on the retailer’s premises
• The retailer must mail notice of the intent to bring action to the underage person or the underage person’s parent, as applicable at least 15 days prior to filing the action
• The retailer must not have been convicted of, received a citation for, or been charged with a violation of the underage drinking law
• The retailer must have reported the suspect-ed conduct to law enforcement at or near the time when the conduct was first discov-ered
This provision does not apply if the underage per-son was employed by or assisting a law enforcement agency in carrying out enforcement to determine compliance with, or investigating poten-tial violations of the prohibition on underage persons in licensed premises. A retailer prevailing in the civil action shall be awarded $1,000 in dam-ages and the costs of bringing the civil action. (Sec. 125.07(4)(f), Wis. Stats.)

42

Yes, it does.

Theft (like many crimes) is more than just having something that isn’t yours. Your mental state matters. Generally, it requires that you’re knowingly taking something that doesn’t belong to you.

For example, if you accidentally get in the wrong car and drive it away, that’s not theft. It’s a mistake.

If the clerk has a legitimate and reasonable belief that the license is fake, then he doesn’t think that he’s taking your legitimate property. He thinks that he’s seizing contraband. Therefore: not theft.

Destroying a government id is probably a separate crime. But holding onto it if you think it’s fake until the police sort it out likely isn’t. It’s maybe possible that you have some sort of civil claim against him for wasting your time.

43

In the scenario I gave in the O.P. where my driver’s license is legit, the “confiscate/give to police” solution leaves me … with no way to leave. (At least, not legally, assuming I drove myself.)

The cops aren’t going to rush over for a non-violent situation. Probably be a couple hours at least. So, now what? I just hang around, loitering, glaring at the clerk who took my driver’s license, just because I look youngish?

44

I had this happen to me when I was 20, buying some cigarettes. Some of it is well remembered, some of it not so much after a couple of decades.

I went to the convenience store next to where I worked that I went to nearly every night to pick up a couple of packs on my way home. They had a new person working that night.

I went to the counter with my 12 pack of mountain dew, and asked for 2 packs of Kamel Reds.

She gives me a dirty look, and asks for ID. This is when I first noticed that this was not one of the people that I had dealt with on numerous occasions before.

I say, “Certainly.” and I pull it our and hand it to her. She looks at it, looks at me, and says, “This isn’t your ID. There’s no way that you are 20.”

I say, “Yes, it is my ID. I live at #### like is says on there.” Thinking that confirming my address would give some reason to believe me.

She says, “I can sell you the pop, but not the cigarettes.” I say, “Fine, I’ll just go somewhere else.” and I hold out my hand for my ID.

She puts it in the drawer, closes it, and says, “No, you’re not getting this back.”

Well, now I’m in a bit of a bind. She’s got my ID, and I kinda need it. If nothing else, I probably will be carded when I go somewhere else, and I was very low on smokes, not to mention being rather uncomfortable with the idea of operating my motor vehicle without having my license on me.

I tell her I’m not leaving without it. If she doesn’t want to make a sale, that is one thing, but I will not leave until she returns my ID. To this, she says “Okay.” then walks away and proceeds to ignore me. (This is nearly 2 in the morning, so I’m the only one in the store.)

Now, I’m actually a bit angry at the position that she has put me in, so I raise my voice a bit, telling her that she is not going to blow me off like this, and that she needs to return my property. At this, she now threatens to call the police, to which I agree is a great idea, I tell her that they can come down here, sort this out, and when they do, they are going to give me my ID back, and I am going to ask them if there is anything we can charge her with for her theft of my property.

So, she calls the police, and, while glaring at me, says that I am trespassing, and won’t leave, even after she has asked me to. I suppose this gets the police there faster than if it’s just a dispute over an ID.

I walk outside at this, and go sit in my car until the cop shows up. He doesn’t look all that amused, and I see him walk inside and start talking to the clerk. At this point, I exit my car, and re-enter the building. He turns as I enter, and asks, “Are you the one that she called about?”

“I guess”, I answer. “She took my ID, and won’t give it back. I can’t leave without it.”

“She said that she told you to leave, and you refused, is this true?”

“Ummm, no. The first time she said anything about me needing to leave was when she called you guys, and told you that she had told me to leave. Before that, when I told her that I wasn’t going to leave without the ID that she took from me, she was ignoring me and refusing to respond to my request that she return my property.”

“I just need her to return my ID, and I will leave, and probably never shop here again.”

So, he asks her to hand over the ID, which she does, while looking at me smugly. The cop looks at it, looks at me, asks my address and my birthdate, and then hands it back to me.

I thank him, ask him if there is anything else he needs from me. He says no, so I head home, stopping on my way home at a slightly less convenient store to pick up my much needed (especially at this point) nicotine injection tubes.

All in all, it took a bit less than an hour.

I didn’t hold to my vow to not shop there again, as I never saw her again. I talked to some of the other clerks, and they weren’t sure what happened with her, but she wasn’t working there anymore.

45

A couple of hours seems pretty bad for a response there.

But… yeah, kinda. Occasionally people are dicks and waste your time and there’s not always a legal remedy. Not every way someone can come up with for being a bad person is criminal. Like I said, you might have a civil claim. I doubt that a criminal case would hold up.

Go back to my “accidentally drove the wrong car home” case. This isn’t a hypothetical; it does occasionally happen. It used to happen more with older cars that had relatively few key blanks and sometimes people would forget where they parked and their key happened to fit and start the wrong car. Not a lot, but it’s a big country. It’s happening more now that keyless ignition is a standard thing and sometimes people forget and leave their keys inside their cars and someone absentminded gets in and drives away because the car starts right up.

Probably an even bigger inconvenience to have someone take your car, but it’s generally not a criminal act.

46

In your example, you have the intent to permanently deprive the wallet owner of his lawful possessory interest in the wallet and have used deceit in order to have him hand it to you for that purpose.

There is no similarity at all to the examples above.

47

So taking someone’s property and refusing to return it when asked, IS theft.

If a barman takes my government ID and refuses to return it that is absolutely theft. I am reporting it to the police and ABC as such if it happens to me.

48

Did you read any of my posts? That’s not how criminal law works. By all means you should report it to the police. But what you should expect is to get your ID back, not to have the barman arrested for theft.

49

There’s a long article currently on DPReview.com about “camera stolen legally”. (Then they dropped “legally” from the title) The gist is he joined a cooperative camera rental group, someone “rented” his camera and never brought it back. Insurance called it “voluntary parting” and so it was not covered as theft.

Similarly, I read about a couple form Canada who were subletting their Texas winter home. The person arranging this gave the key to a prospective tenant to check out the place, then the guy moved in without an agreed lease and never paid any rent. The police declined to arrest or evict - “you gave him the key so it’s not break and enter, it’s a civil matter”.

If you voluntarily part with something, when does it become theft?

50

I’m not a lawyer, but I think in order to prove theft, you need to prove that the person who did so never intended to keep up their part of the agreement. Basically, you need to prove that the whole arrangement was fraudulent.

Also, in both of your examples, there are complicating matters.

In the first: losses that the insurance covers under “theft” and acts that fit the criminal statute of “theft” aren’t necessarily the same set. It’s possible that this does count as theft legally, but that it’s hard enough to prove that the police aren’t going to bother with it, but also that it isn’t covered under insurance.

In the second, there are a few things that complicate it. One, the guy hasn’t stolen anything. Like, he’s not claiming he owns the home. He’s just living in it without a lease, which is a thing that lots of people do. And two, there’s a large body of law that deals with “squatters” who are living somewhere ostensibly without the landlord’s permission, and it tends to strongly favor the assumed tenant. Primarily because there’s a history of nefarious landlords abusing their power by throwing people out onto the street who had a right to live there and nowhere else to go.

Imagine that someone came to test-drive a car you were selling, then disappeared with it. The police would not say that since you gave him the key, it was a civil matter.

51

Your test-drive counterexample is so strong that I can’t help wondering whether the Texas cop in the story referred to above wasn’t just passing the enforcement buck.

That might be because the officer was unreasonably wary of the aforementioned body of law dealing with squatters’ rights, or maybe because he/she simply didn’t feel like dealing with the situation at hand. But I find the argument that “hey, you gave the person a key, so the police can’t touch this” highly unpersuasive.

(I’m neither a lawyer nor a cop, so I’d love to hear from members of either profession on this one in case I’m way off base).

A woman who is divorcing her husband may give him a key so he can get his stuff out of the house, but if he’s not on the lease/deed and he tries to stay indefinitely, I imagine most cops would chase him off. Trespassing can happen even when a key is involved.

The police have tremendous discretion about which laws to enforce and how rigid that enforcement should be. They obviously make mistakes with that discretion from time to time, as any human being would. Sometimes that discretion is abused in less innocent ways, but that’s another subject altogether.

52

I lived in Santa Fe, NM for four years. New Mexicans often have to deal with people thinking they don’t live in the USA. It’s not because people hear “Mexico” instead of “New Mexico;” it’s because they’re unaware that the US includes a state called New Mexico.

I once had a catalog company CSR refuse to sell me something because “we don’t ship outside the US.” I was naïve in thinking that once I explained that New Mexico was part of the US, she’d relent. Nope. She refused to look at a map, and in a tone that made it clear that she was too clever to fall for my little ruse. I asked to speak to a supervisor, who sold me whatever I was buying without a problem.

In both that case and in the case of overzealous bartenders who destroy IDs, it sounds like a little power has gone to their heads. I know the Stanford prison experiment basically shows that almost all people will abuse power under the right circumstances, some people seem more eager than others to demand that one respect their authoritah.

53

I had a really unfortunate experience where I paid to go see John Fahey in concert at the Oxford Hotel in Denver. Upon attempting to enter, they rejected my ID for the venue. It was during one of those times where they gave you a paper ID to serve until your plastic-encased ID arrived in the mail; it was a legitimate ID. They wouldn’t letme in.
But…they were letting nine-year-old children in to hear John Fahey. So I complained.
THey said yeah, but these kids aren’t going to drink.
I said I wouldn’t drink. They said no deal. Because how did they know I wouldn’t drink? They wouldn’t even think about serving alcohol to a nine-year-old kid but they would to me.* They also wouldn’t refund my ticket.
I told my husband to go on in and not waste the ticket and I went outside and had a temper tantrum in the snow, which culminating with me throwing my purse at a Volkswagen.
Then I went inside to the actual bar–where you could hear the music but you couldn’t see the musician–and had three gin and tonics. That bar, also attached to the Oxford Hotel, those cretins, did not even ask for an ID.
When I went to pay, I didn’t have my wallet. No ID, no money.
I went back to the Volkswagen, and my wallet was kind of lodged in the windshield well, covered with snow.
All this while John Fahey was playing away.
This made me mad on so many levels. The cops would have accepted my legal ID. They wouldn’t have shut the place down for letting me in with that ID, because it was a legal ID.
I’m still pissed, actually. Now John Fahey is dead and I never got to see him live–so close, but no–and it’s the goddamn Oxford Hotel’s fault. And their excuse was their liquor license, but they didn’t have to let me drink–but they did let me drink. Just not in the room where I had paid to be.
The Oxford Hotel was not in any trouble.** Funnily enough the guy who wouldn’t let me in came walking through the Cruise Room while I was sitting there getting snockered, and I glared at him, and he saw me. He just kept walking. I hope he got the flu.

*This must have been some weirdo thing with Colorado’s liquor law at the time. We took my stepdaughter out one night and as we went in, the server asked to see her ID. My husband said, “She’s 14, she doesn’t have an ID.” The server said, oh, okay. The clear message there was that if she had been old enough to have an ID and hadn’t had one she couldn’t have gotten in. So I guess I should have told the guy at the door that I was 14 and didn’t have an ID, and then I could have seen John Fahey. Too bad I didn’t think of that till 10 years later.
**Except for various anonymous complaints about rats to the health department in subsequent years, and there were rats

54

It’s the same thing with airport security. You don’t have to have an ID if you are under 18. But I always wondered how you then prove you are under 18 and don’t need to show an ID.

55

This is a good theory too.

The set of illegal things and the set of things you can get a cop to actually arrest someone for are not identical.

56

Isn’t the “someone” in these circumstances the state, though, not you? Does the state believe it has been a victim of theft if one of its ID cards is held by a cashier who genuinely believes it to be fake?

57

Which states would you like cites for? It is illegal to merely possess a fake ID in many states. Some states you can get charged for both possession and attempting to use in as separate charges in the same incident.

In my state of MA the general laws are a misdemeanor for possession and a felony for attempting to use it. A lot of times kids will get charged with the lessor charge which is a $200 dollar fine, however what not made clear is when admitting guilt and paying the fine the state automatically informs the RMV who will subsequently suspend thier license for 180days.

58

As to the debate as to whether a clerk can confiscate an ID. They effectively can without recourse because the police are not going to charge a clerk with theft for holding your suspected fake ID and there is nothing you can do to force the police to press charges. If a clerk confiscates your ID you and/or the clerk can call the police who will eventually come down to mediate the dispute. The state has interest in finding fake IDs and prosecuting the offenders, attempting to prosecute a clerk for being wrong doesn’t serve the states interests. The clerk may get a lecture from the police on how to identify the difference. If the clerk takes your ID and runs out the door with it the police may view that differently.

59

You can keep saying that, but repeating it does not make it any more true than it was the first time you said it.

Theft, or larceny is defined typically as “the trespassory taking of an item with the intent to permanently deprive the other of the item.” This also may be accomplished by trick or deception. If I ask to see the new watch you bought and run off with it, I didn’t take it from you, but I deceived you (saying I just wanted to see it versus keep it) into handing it to me, again I have to repeat it, with the intent to permanently deprive you of the item. This intent of permanently depriving you is essential for the crime of theft or larceny to have occurred.

This intent can form after the taking. If you let me borrow your car and I borrow it with the full intent of returning it, but after a couple of days I decide to keep it, then I am guilty of larceny.

Applying these principles, it is clear that the store clerk in the above example has not committed theft. He requested to see the ID for the purposes of verifying that you are old enough to buy liquor. Upon examination, he believed that it was fake. He kept it, presumably to call the police to investigate the veracity of the ID. If the ID was legitimate, the police would return it to you. If not, they could press criminal charges against you.

Nothing about the above shows that the clerk had an intent to permanently deprive you of the fake ID. If he took it in bad faith or because of sheer stupidity, then perhaps some other legal doctrine might come into play given different facts, but theft or larceny of the ID is not one of them.

The camera “rental” example: Will the facts prove to a jury that at some point in time, the “renter” of the camera formed an intent in his mind to keep the camera? If so, you can prove larceny. What makes these cases difficult is proving this intent. Maybe he just wanted to keep it for a couple of weeks more? In relation to cars, my state has a law against “Failing to Return Leased Property” to cover this situation of keeping a rental car for weeks and weeks because, again, the intent to permanently deprive cannot be proven in many instances.

The squatter example: That is a bit different because we are talking about real property instead of personal property. It would be a legal impossibility to “steal” a piece of real property. Trespassing, sure, but larceny only applies to personal property. Further, the police do not want to get involved in this because they are not privy to any arrangements you had with the person in your home. For all they know, that person has been paying rent to you on a month to month basis. They cannot just start jerking people out of houses. The police did not tell the homeowners that they were screwed; the police told them to take it to court.

This “you gave him the key/you gave him the item” is not dispositive of the situation, but is merely one piece of evidence in determining intent. At the end of the day, it will be up to twelve people sitting in a jury box to decide your intent.

60

Our favorite sushi restaurant doesn’t have a liquor license, but happily provides glassware for folks like us who BYOB (and no corkage fee).

One night two of my nephews, 19 and 20 at the time were dining with us. Our waiter asked them, “are you over 18?” They both answered, honestly, “yes”. He gave them wine glasses and I served them wine with their meal. The legal drinking age was 21.

I wonder who broke what law here?!