ID cards+law history; Kolender v. Lawson, 1983

[Xeni Jardin]

Some legal precendent on the matter, forwarded from the pho mailing list.
The Supremes struck it down in '83, citing 4th amendment violations... //
XJ

----- original message ---------

If you are interested in national ID card issues,
start with the 1983 Supreme Court decision in
Kolender v. Lawson, aka "The Walking Man" case
involving a California law that required
you to stop and identify yourself upon request,
struck down as unconstitutional with O'Connor writing the
majority opinion and Brennan penning a
broad warning for future attempts to legislate
in this area.  Brennan's opinion with this link to the
whole enchilada (technical legal term
for entire decision). In this  case, the court thought
the requirement vague? Would the same hold  true for
an ID card requirement imposed nationally? Brennan
says yes,  the others are less clear.


By the way, a sidebar to this case that
I found interesting. It was filed and briefed "pro se"
(representing himself as a non-attorney) by Mr.
Edward C. Lawson, a 36-year-old dreadlocked
businessman, using the Boalt  Hall Law Library
as his source. The Supreme Court would not allow Mr.
Lawson to argue his own case, as you will
find at Kolender v. Lawson,  459 U.S. 964 (1982).

-- Jim Griffin

http://usff.com/hldl/courtcases/kolendervlawson.html

Kolender v. Lawson, 461 U.S. 352 (1983)

CONCURRING OPINION
Justice Brennan concurring.

I join the Court's opinion; it demonstrates convincingly that the
California statute at issue in this case,
Cal.Penal Code Section 647(e), as interpreted
by California courts, is unconstitutionally vague.
Even if the defect identified by the Court were cured,
however, I would hold that this statute
violates the Fourth Amendment. [FN1]

Merely to facilitate the general law enforcement objectives of
investigating and preventing unspecified crimes,
States may not authorize the arrest and criminal prosecution of an
individual for failing to produce identification or further information on
demand by a police officer.

It has long been settled that the Fourth Amendment prohibits the seizure
and detention or search of an individual's person
unless there is probable cause to believe that he has committed
a crime, except under certain conditions
strictly defined by the legitimate requirements of law enforcement and by
the limited extent of the resulting intrusion on individual liberty and
privacy. See Davis v. Mississippi , 394 U.S. 721, 726-727, 89 S.Ct. 1394,
397-1398, 22 L.Ed.2d 676 (1969). The scope of that exception to the
probable cause requirement for seizures of the
person has been defined by a series of
cases, beginning with Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), holding that a police
officer with reasonable suspicion of
criminal activity, based on articulable facts, may detain a suspect
briefly for purposes of limited questioning and, in so doing, may
conduct a brief "frisk" of the suspect to protect
himself from concealed weapons. See, e.g.,
United States v. Brignoni-Ponce , 422 U.S. 873, 880-884, 95 S.Ct. 2574,
2579-2580, 2581-2582, 45 L.Ed.2d 607 (1975); Adams v. Williams , 407 U.S.
143, 145-146, 92 S.Ct. 1921, 1922-1923, 32 L.Ed.2d 612 (1972). Where
probable cause is lacking, we have expressly declined to allow
significantly more intrusive detentions or searches on the Terry
rationale, despite the assertion of compelling law enforcement
interests. "For all but those narrowly defined intrusions,
the requisite 'balancing' has been performed in
centuries of precedent and is embodied in the principle that seizures are
'reasonable' only if supported by probable cause." Dunaway v. New York ,
442 U.S. 200, 214, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979). [FN2]

Terry and the cases following it give full recognition to law enforcement
officers' need for an "intermediate" response, short of arrest, to
suspicious circumstances; the power to effect a brief detention for the
purpose of questioning is a powerful tool for the investigation and
prevention of crimes. Any person may, of course, direct a question to
another person in passing. The Terry doctrine permits police officers to
do far more: If they have the requisite reasonable suspicion,
they may use a number of devices with substantial coercive
impact on the person to whom they direct their attention,
including an official "show of authority," the
use of physical force to restrain him, and a search of the person for
weapons. Terry v. Ohio, 392 U.S., at 19, n. 16, 88 S.Ct., at 1879, n. 16;
see Florida v. Royer, --- U.S. ----, ----, 103 S.Ct. 1319, 1324, 75
L.Ed.2d --- (1983) (opinion of WHITE, J.);
United States v. Mendenhall, 446 U.S.
544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1979) (opinion of Stewart,
J.). During such an encounter, few people will ever feel free not to
cooperate fully with the police by answering their questions. Cf. 3 W.
LaFave, Search and Seizure Section 9.2, at 53-55 (1978). Our case reports
are replete with examples of suspects' cooperation during Terry
encounters, even when the suspects have
a great deal to lose by cooperating. See, e.g.,
Sibron v. New York, 392 U.S., at 45, 88 S.Ct., at 1893-1894; Florida v.
Royer, supra, --- U.S., at ----, 103 S.Ct., at 1326.

The price of that effectiveness, however, is intrusion on individual
interests protected by the Fourth Amendment. We have held that the
intrusiveness of even these brief stops for purposes of questioning is
sufficient to render them "seizures" under the Fourth Amendment. See Terry
v. Ohio, 392 U.S., at 16, 88 S.Ct., at 1877. For precisely that reason,
the scope of seizures of the person
on less than probable cause that Terry
permits is strictly circumscribed, to limit the degree of intrusion they
cause. Terry encounters must be brief; the suspect must not be moved or
asked to move more than a short distance; physical searches are permitted
only to the extent necessary to protect the police officers involved
during the encounter; and, most importantly,
the suspect must be free to leave after a short time
and to decline to answer the questions put to him.


"[T]he person may be briefly detained against his will while pertinent
questions are directed to him. Of course, the person stopped is not
obliged to answer, answers may not be
compelled, and refusal to answer furnishes no
basis for an arrest, although it may alert the officer to the need for
continued observation." Id., at 34, 88 S.Ct., at 1886 (White, J.,
concurring). Failure to observe these
limitations converts a Terry encounter into the
sort of detention that can be justified only by probable cause to believe
that a crime has been committed. See Florida v. Royer , --- U.S., at ----,
103 S.Ct., at 1325 (opinion of White, J.); id. , at ----, 103 S.Ct., at
1330 (opinion of Brennan, J.); Dunaway v. New York ,
442 U.S., at 216, 99 S.Ct., at 2258.

The power to arrest--or otherwise to prolong a seizure until a suspect had
responded to the satisfaction of the police officers--would undoubtedly
elicit cooperation from a high percentage of even those very few
individuals not sufficiently coerced by a show
of authority, brief physicaldetention,
and a frisk. We have never claimed that expansion of the power of police
officers to act on reasonable suspicion alone, or even less, would further
no law enforcement interests. See, e.g., Brown v. Texas , 443 U.S. 47, 52,
99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). But the balance struck by the
Fourth Amendment between the public interest in effective law enforcement
and the equally public interest in safeguarding individual freedom and
privacy from arbitrary governmental interference forbids such expansion.
See Dunaway v. New York, supra; United States v.
Brignoni-Ponce , 422 U.S., at 878, 95 S.Ct., at 2578-2579.
Detention beyond the limits of Terry without
probable cause would improve the effectiveness of legitimate police
investigations by only a small margin, but it would expose individual
members of the public to exponential increases in both the intrusiveness
of the encounter and the risk that police officers would abuse their
discretion for improper ends. Furthermore, regular expansion
of Terry encounters into more intrusive detentions, without
a clear connection to any specific
underlying crimes, is likely to exacerbate ongoing tensions, where they
exist, between the police and the public. See Report of the National
Advisory Commission on Civil Disorders 157-168 (1968).

In sum, under the Fourth Amendment, police officers with reasonable
suspicion that an individual has committed or is about to commit a crime
may detain that individual, using some force if
necessary, for the purpose of asking investigative questions.
[FN3] They may ask their questions in a way
calculated to obtain an answer. But they may not compel an answer, and
they must allow the person to leave after a
reasonably brief period of time unless the information
they have acquired during the encounter has given
them probable cause sufficient to justify an arrest. [FN4]

California cannot abridge this constitutional rule by making it a crime to
refuse to answer police questions during a Terry encounter, any more than
it could abridge the protections of the
Fifth and Sixth Amendments by making it
a crime to refuse to answer police questions once a suspect has been taken
into custody. To begin, the statute at issue in this case could not be
constitutional unless the intrusions on Fourth Amendment rights it
occasions were necessary to advance some specific,
legitimate state interest not
already taken into account by the constitutional analysis described above.
Yet appellants do not claim that Section 647(e) advances any interest
other than general facilitation of police
investigation and preservation of public
order--factors addressed at length in Terry , Davis , and Dunaway . Nor do
appellants show that the power to arrest and to impose a criminal
sanction, in addition to the power to detain
and to pose questions under the aegis of
state authority, is so necessary in pursuit of the State's legitimate
interests as to justify the substantial additional intrusion on
individuals' rights.

Compare Brief for Appellants 18-19 (asserting that s 647(e) is
justified by state interest in "detecting and preventing crime" and
"protecting the citizenry from criminal acts"), and People v. Solomon , 33
Cal.App.3d 429, 436-437, 108 Cal.Rptr. 867, 872 (1973) Section 647(e)
justified by "the public need involved," i.e., "protection of society
against crime"), with United States v. Brignoni-Ponce , 422 U.S., at 884,
95 S.Ct., at 2581-2582 (federal interest in immigration
control permits stops at the border itself without
reasonable suspicion), and California v. Byers
, 402 U.S. 424, 456-458, 91 S.Ct. 1535, 1552-1553, 29 L.Ed.2d 9 (1971)
(Harlan, J., concurring in the judgment) (state interest in regulating
automobiles justifies making it a crime to refuse to stop after an
automobile accident and report it). Thus, because the State's interests
extend only so far as to justify the limited searches and seizures defined
by Terry , the balance of interests described in that case and its progeny
must control.

Second, it goes without saying that arrest and the threat of a criminal
sanction have a substantial impact on interests protected by the Fourth
Amendment, far more severe than we have ever permitted on less than
probable cause. Furthermore, the likelihood that
innocent persons accosted by law enforcement officers under authority
of Section 647(e) will have no
realistic means to protect their rights compounds the severity of the
intrusions on individual liberty that this statute will occasion. The
arrests it authorizes make a mockery of the right enforced in Brown v.
Texas, supra, in which we held squarely that a State may not make it a
crime to refuse to provide identification on demand in the
absence of reasonable suspicion. [FN5] If Section 647(e)
remains in force, the validity of such
arrests will be open to challenge only after the fact, in individual
prosecutions for failure to produce identification. Such case-by-case
scrutiny cannot vindicate the Fourth Amendment rights of persons like
appellee, many of whom will not even be prosecuted after they are
arrested, see ante, at 1857. A pedestrian approached by
police officers has no way of knowing whether the officers
have "reasonable suspicion"--without which they
may not demand identification even under Section 647(e), id., at 1857, and
n. 5--because that condition depends solely on the objective facts known
to the officers and evaluated in light of their experience, see Terry v.
Ohio
392 U.S., at 30, 88 S.Ct., at 1884; United States v. Brignoni-Ponce , 422
U.S., at 884-885, 95 S.Ct., at 2581- 2582. The pedestrian will know that
to assert his rights may subject him to arrest and all that goes with it:
new
acquaintances among jailers, lawyers, prisoners, and bail-bondsmen,
first-hand knowledge of local jail conditions, a "search incident to
arrest," and the expense of defending against a possible prosecution.
[FN6]

The only response to be expected is compliance with the officers'
requests, whether or not they are based on reasonable suspicion,
and without regard to the possibility of later
vindication in court. Mere reasonable suspicion
does not justify subjecting the innocent to such a dilemma. [FN7]

By defining as a crime the failure to respond to requests for personal
information during a Terry encounter, and by permitting arrests upon
commission of that crime, California attempts in this statute to compel
what may not be compelled under the Constitution.
Even if Section 647(e) were not unconstitutionally vague,
the Fourth Amendment would prohibit its enforcement.