Our right to be left alone
By ROBYN E. BLUMNER, Times Perspective Columnist
Unless you are willing to live like Unabomber Ted Kaczynski, it is nearly impossible these days to go about your business anonymously. Every time you pull out your credit card, peruse the Internet or roll through a toll booth with an E-Z pass you leave a trail that can be traced. Take money out of an ATM, buy a newspaper at a Seven-11 or walk down a certain city street and a security camera will be watching and recording. And if you want to get on an airplane, well, just don't carry anything you would be embarrassed to have dumped out on a counter.
So what does it matter if a law says police can demand identification when stopping someone during the investigation of a crime?
A case out of Nevada, asking this very question, will be heard by the U.S. Supreme Court this term.
In Hiibel vs. Dist. Ct., the court will decide for the first time whether we have a right to anonymity as we go about our lives, or whether the government can demand to know who we are whenever we are out in public.
Not to overstate this, but nothing less than the very fabric of American liberty is at stake.
Here are the facts: Larry Hiibel was approached in 2000 by a deputy sheriff of Humboldt County after a bystander reported seeing a man strike a female passenger inside a parked truck. According to the deputy, Hiibel appeared intoxicated and refused to identify himself when asked. Hiibel was arrested, and after the battery charge against him was dropped, he was found guilty of delaying a public officer by refusing to cooperate and fined $250.
Hiibel challenged his conviction on the grounds that he had a right to remain silent in the face of police questions. His public defender wrote in a filing, "It is inimical to a free society that mere silence can lead to imprisonment."
In December 2002, the Nevada Supreme Court sided with police in a 4-3 decision. The majority opinion made it seem a relative trifle to be forced to disclose one's name when police demand it. "Reasonable people do not expect their identities - their names - to be withheld from officers," wrote Chief Justice Cliff Young. "Rather, we reveal our names in a variety of situations every day without much consideration."
Young balanced this "minor imposition" against the public interest served by the disclosure. He described the 9/11 attacks, the anthrax mailings and high school students who "randomly gun down their fellow classmates and teachers," then breathlessly wrote: "We are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled." For these reasons, he said, it is reasonable to require that we disclose our identities to police when they are suspicious of us.
Come on. Eric Harris and Dylan Klebold were well known at Columbine High School but that didn't stop a thing. Does Young think they would have put down the guns in order to comply with a police order for ID?
The ruling used sophistry to justify a handoff of extraordinary new power to police over the lives of innocent Americans. If the high court agrees, it will wipe away one of the last vestiges of what Justice Louis Brandeis called our "right to be let alone." We may give up our names and identification easily when using a credit card at the mall or meeting new business associates, but these voluntary actions are a far sight from being forced to through the coercive power of the state.
Police already have broad authority to ask anyone questions in the course of investigating a crime or mollifying a suspicion. They can also pat down a suspect to determine whether he or she is carrying a weapon. But what separates our free nation from those that are not, is that no one can be compelled to affirmatively answer police questions. While most of us would probably cooperate with police, we cannot be forced to do so. This difference is not the trifle Young suggested, it is the whole megillah of liberty.
Just ask Edward Lawson, an African-American man who was arrested repeatedly while walking in a San Diego suburb in the mid-1970s because he refused to identify himself. The police stops were obviously racially motivated. And in 1983, the U.S. Supreme Court ruled the statute Lawson was arrested under unconstitutionally vague. But the court should have gone further and declared that each of us has the right to be anonymous in our wanderings. That omission should be rectified in the Hiibel case.
"What's in a name?" Shakespeare asked.
Only the entirety of American freedom.
But he will make it clear that they are just that, opinions. Case Law and precedence decides how we are interpreting the law as of right now. Any judge in a higher court can counter a lower courts decision. Even SCOTUS has been known to reverse itself.