ID, Guns and the Cops

I have been reading and hearing a lot in the news lately on people being harassed and even jailed for not showing ID when a cop ask them. Like a lot of things in the news, sometimes, we the viewer/reader do not get the whole “Scoop” on the situation that caused the Police to act as they did, so each individual situation needs to be investigated and judged on its own merit. In the age of the “sound byte”  and biased media outlets this should be standard operating procedure for the Civilian Operator. The underlying issue is the law can be confusing, even for the LEO, so I am going to approach this issue purely by the Law as it is written, that way a person can use his own objectivity to guide them through.

I found this article dated from last year on another very entertaining  Texas blog I read now and again, Grits for Breakfast. I am going to post the entire article, because I think it answers clearly what we are discussing, it also talks about a bill being proposed in the Texas House that would change the law as it stands. Currently, as of May 2011, the bill is stagnating in committee.

Creeping Totalitarianism: Identify yourself or go to jail

If this idea had been proposed in the 1950s, it would have been discarded as reminiscent of Soviet Communism. But state Sen. Dan Patrick has SB 843 up in front of  the Senate Criminal Justice Committee that would expand the offense of “failure to identify” to require people to identify themselves whenever they’re legally “detained” by police. Presently, you’re only required to identify yourself upon arrest, which has been the law for many years. Here’s the description of the legislation and its intent from the bill analysis:

Currently, it is a Class C misdemeanor offense for a person to intentionally refuse to identify himself or herself to a peace officer who has lawfully arrested the person.  It is a Class B misdemeanor offense for a person to intentionally give a false or fictitious name, residential address, or date of birth to a peace officer who has lawfully arrested the person or lawfully detained the person.  Both offenses are enhanced if, at the time of the offense, the actor was a fugitive from justice.

It is not currently an offense for a person to refuse to identify himself or herself to a peace officer who has lawfully detained the person.  Police officers routinely investigate persons found in suspicious places and under suspicious circumstances.  The law allows officers to detain these individuals for purposes of an investigation if the officer reasonably believes that the person may be engaged in criminal activity.  These detentions are known as Terry stops, referring to the United States Supreme Court case Terry v. Ohio, 392 U.S. 1.  Although it is well established that an officer may ask a suspect to identify himself during a Terry stop (see, e.g., United states v. Hensley, 469 U.S. 221, 229), it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer.  In 2004, the United States Supreme Court answered this question in the case ofHiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al.  The Hiibel court held that a state could prosecute a lawfully detained person who refused to identify himself or herself.

S.B. 843 would amend Section 38.02 (Failure to Identify), Penal Code, by creating an offense for a person who refused to identify himself or herself to a peace officer who lawfully detained them.

This is no small thing. In practice, the change amounts to a requirement to identify yourself whenever a cop demands it. That dramatically extends police power over the citizenry in day-to-day interactions where otherwise no arrest need ever result. (The Texas House in 2007 dramatically rejected similarlegislation on third reading by a vote of 116 to 23, but the Senate gave approval to Patrick’s bill in 2009. See the extraordinary 2007 House debate here beginning at the 1:53 mark; Rep. Senfronia Thompson was amazing that day.)

Arresting people for no other reason than refusing to give their name? So much for the right to remain silent. How can you tell the cop your name if you’re silent, and if by law you must break silence any time a cop detains you, how can one be reasonably said to have a “right” to it? Where are the “limited government” conservatives when you need them?

Though there’s no explicit amendment in the Constitution authorizing it (except the utterly disregarded 9th), what about the right to be left alone if you’re not doing anything wrong? Must I really answer questions from police, subject myself to background checks, etc., just because a cop chooses to detain me without cause? Why can’t one simply say, like Bartleby the Scrivener, “I would prefer not to,” and go on one’s way unmolested? “None of your business” should still be a valid response when the state pokes its nose into your affairs without justification. Until now in Texas, you had the right to tell the cops to “buzz off” and if they don’t have cause to arrest you, there’s no requirement you tell them your name or any other damn thing. This bill would make people who merely refuse to identify themselves subject to arrest. (Even though it’s a Class C misdemeanor, there’s little doubt the detainees would be arrested because they wouldn’t have a name to put on the ticket.)

The reference to Terry v. Ohio is particularly significant. So called “Terry stops” are Fourth Amendment exceptions that the Supreme Court created to justify detention of individuals when law enforcement specifically does not have probable cause to arrest. (“Terry frisks” are pat downs allowed without probable cause, ostensibly for the officers’ safety.) But this bill changes the dynamic of such stops significantly. Before, officers could stop you but you didn’t have to cooperate. If SB 843 passes, mere noncooperation would subject you to arrest. (As though crowded jails in the larger counties have anywhere to put such petty offenders.) Indeed, the bill analysis focuses on situations where officers have reasonable suspicion, and testimony in 2009 in favor of the same bill gave examples like people taking pictures of nuclear power plants. But the legislation is really much broader than that. Officers are also allowed to “lawfully detain” people merely to check on their safety – so-called “welfare checks.” So under this bill, an officer could legally detain me to check on my “welfare,” ask my name, and if I don’t give it she could arrest me. That dynamic gives the concept of a welfare check a decidedly Orwellian flair.

This is creeping totalitarianism, and I have a hard time wrapping my head around the fact that it’s being promoted by one of the most ardent small-government advocates in all of Texas politics. Heaping more power on government agents in routine encounters with citizens is not my idea of “limited government.”

So as we can clearly see, ignorance of the law in this matter (if the law is amended) could land you in the slammer. Just another sad symptom of big government and the Nanny State.

So what about if you have a CHL? What are the explicit rules concerning that? If they did not go over this in your CHL class, shame on the instructor..but for you Texas guys and gals, here is the latest law on the books:

Texas  Government Code Section 411

Sec. 411.205.  REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder’s person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder’s driver’s license or identification certificate issued by the department and the license holder’s handgun license.

Two things here: Noticed the underlined part guys. You are not required to show your CHL with your DL when you are not packing. Some people make a bigger deal out of this than it needs to be IMO because ultimately, this really breaks down to an issue of courtesy and not law, since in Texas at least, when the LEO runs your DL it will list your CCL also. But as I always remind my kids (and at times local cops) Courtesy is a two way street!

 Secondly, in Texas in 2007 the Motorist Protection Act passed. In a nutshell, this allows a citizen to carry a Handgun  inside or directly en route to a vehicle that is owned by the person as long as it is concealed in the vehicle. Some people have confused this with Texas Senate Bill 378, which is an amendment to the Castle Doctrine. This bill extends the rights of the Castle Doctrine to your automobile and workplace. It also abolishes the duty to retreat, cementing the “Stand your Ground” rule which Martin Zimmerman (aided by the lib-tard media machine) advertised nationally in Florida a while back, even though the case had more to do with bad decisions and discretion than standing your ground.

Responsible citizens have the duty to stay up to date on their local, state and Federal laws; Ignorance of the law can be taken advantage of much too easily. Understand, that the nature of the legal system is in a continuous state of flux, so sometimes the LEO themselves will not know the revised law. As we have discussed before, the 2nd Amendment is not just a right, it is a privilege. When you decide to carry a weapon legally for self-defense, you just signed up to be more responsible, studious, courteous and aware than the average joe.

 

Stay Alert out there.