Amicus Curiae Brief — Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.

eee Mg f Supreme Court.U.S.

get FILED

a No. 03-3554 DEC 15 2003

) OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

¢

LARRY D. HIIBEL,

Petitioner,

v.

THE SIXTH JUDICIAL DISTRICT COURT

OF THE STATE OF NEVADA, IN AND FOR

THE COUNTY OF HUMBOLDT, et al.,

Respondents.

¢

On Writ Of Certiorari To The

Supreme Court Of Nevada

¢

BRIEF OF AMICI CURIAE

PRIVACYACTIVISM, CYBER PRIVACY

PROJECT, AND FREETOTRAVEL.ORG

IN SUPPORT OF PETITIONER

¢

WILLIAM M. SIMPICH

(Counsel of Record for

Amici Curiae)

1736 Franklin Street,

Tenth Floor

Oakland, California 94612

(510) 444-0226

LINDA G. ACKERMAN

DEBORAH S. PIERCE

PRIVACYACTIVISM

4026 18th Street

San Francisco, California 94114

(415) 225-1730

ROBYN E. WAGNER

FREETOTRAVEL.ORG

Box 4913

San Jose, California 95150

(877) 623-7066

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

SIT UII sccrcednernsunaaieneeininiedenenenennentenens i

, ND Teen eR TEEN ili

Statement of Interest by Amici Curiae..................... 1

Summary of the Argument ...............ccccssccssssscesceseeees 2

Ee eceiiniinnincninnnnnnenitanenienesanseneemepieenemeninene 3

I. Under Nevada’s Ruling, a Terry Stop Becomes

an Identification Checkpoint, Invasively Re-

quiring Innocent Pedestrians to Divulge Their

Identities or Face Arrest ..............cscccceseeseeeeeeeeees 3

II. Free Movement and Anonymity Are Essential

Elements to the Exercise of Many First Amend-

TT eee En 6

I< 6

i: ‘iI ospnsscasssesseeepuismuininaieininatemmssennention 7

C. Compelled Identification During Terry

Could Circumvent Well-Established First

Amendment Freedom ...................s0ccceeseeees 10

D. High Standards Exist for Overcoming

Anonymity in Other Legal Areas................. 12

III. A Requirement that a Detainee “Shall Identify

Himself” is Too Vague to Enforce.....................+. 15

A. Verbal Identification is Vague and Largely

Gta ncinitencetuinnnbncnicnuninnanbienmeneenennnness ve 15

B. Requiring a Credential Document is Vague,

Requires Due Process on Credential Issu-

ance, and Exposes Large Amounts of Irrel-

evant and Damaging Information............... 18

ii

TABLE OF CONTENTS - Continued

Page

C. No Reasonable Interpretation Can Be

) | NT

IV. Compelled Identification Schemes _ are

Historically Harmful .................:ccccccccccceeeeseeeeeeee

V. A Bright Line Rule Will Help Citizens Know

and

Conclusion

Defend Their Rights.......................0cccccsssoses

TABLE OF AUTHORITIES

Page

CASES

Bates v. City of Little Rock, 361 U.S. 516 (1960)................ 9

Bostick v. State, 554 So. 2d 1153 (Fla. 1989)..................... 25

Branzburg v. Hayes, 408 U.S. 665 (1972).........ceeceeeeeeees 14

Brown v. Socialist Workers’ 74 Campaign Comm.,

a. sscrenonoconononscs 9

Chicago v. Morales, 527 U.S. 41 (1999)... eeeeeeeeeee 6,7

Coffin v. United States, 156 U.S. 432 (1895)... eee 5

Columbia Insurance Co. v. Seescandy.com, 185

EE 13

Dendrite International, Inc. v. Doe, No. 3, 775 A.2d

756 (N.J. Super. Ct. App. Div. 2001) ...........ceeeeeeeeeeees 13

Florida v. Bostick, 501 U.S. 429 (1991) .......... cece eeeee eee 28

Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982)................. 21

Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th

i... cssonesenesonenecscnnsocs 27

Hiibel v. Sixth Judicial Dist. Court, 59 P.3d 1201

i ccrccenactancdasdccscevesdvosscooosooseoes passim

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ................ 9

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

a. sascsnensnsnnsonnocacee 9

Kolender v. Lawson, 461 U.S. 352 (1983).......... 5, 10, 18, 20

Loadholtz v. Fields, 389 F. Supp. 1299 (M.D. Fla.

a __... ssssmsnsnnpnrssasoosoocnsoes 14

iv

TABLE OF AUTHORITIES — Continued

Page

Miranda v. Arizona, 384 U.S. 436 (1966) ...........ccceceeeeeeee 26

NAACP v., Alabama ex rel. Patterson, 357 U.S. 449

CUI hcicnsncciivasahdeneoenphleeetdibibdeilil teint dialed 10, 11

Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala.

Sia rp cneeicsnenniesspanvediamciecndsineiasgibeiaiaaniiailiiibiditeiasitiadibbiiatiniaiiiaaas iii 14

Shelton v. Tucker, 364 U.S. 479 (1960)... eeeeeeeeeeeeeeee 9

State v. Kerwick, 512 So. 2d 347 (4th Fla. Dist. Ct.

SI, FE cvcnmisaninitahteiiieddbiinietiiadipiabeemtinspiattadh tate 21, 26

Talley v. California, 362 U.S. 60 (1960).........:ccccccccseseeeeeeees 9

Saray Oe. Grew, SHB TE. 0 Ca ecccccecccccensesesseressvcssins passim

United States v. Lanier, 520 U.S. 259 (1997) .........ccccccceee- 20

Watchtower Bible & Tract Soc’y of N.Y., Inc. v.

Village of Stratton, 536 U.S. 150 (2002) ...........cceeeeeeees 9

STATUTES

Nevada Revised Statute 171.123(3) .........cccccceeeeceeeeeeee 15, 20

Nevada Revised Statute 483.850.............ccccccscsssssssssseseeees 19

Nevada Revised Statute 483.860..............ccccccsscsssssesseeeeeees 19

OTHER AUTHORITIES

Annie I. Anton, National Identification Cards (Dec.

17, 1996), available at http://www.cc.gatech.edu/

computing/SW_Eng/people/Phd/id.html.............0......000. 23

EDWIN BLACK, IBM AND THE HOLOCAUST: THE STRA-

TEGIC ALLIANCE BETWEEN NAZI GERMANY AND

AMERICA’S MOST POWERFUL CORPORATION (2001).......... 22

Vv

TABLE OF AUTHORITIES — Continued

Lord Devlin, THE CRIMINAL PROSECUTION IN ENG-

i BS CI, cccccnsnscnsccccnecntensentnencinasansianeeheosasmnensnsenanens 26

THE FEDERALIST PAPERS (Clinton Rossiter, ed.,

James Fussell, “Group Classification on National

ID Cards as a Factor in Genocide and Ethnic

Cleansing,” Yale University Genocide Series,

DRowammber 16, BOGL ...cccccrccccecscecosccccsccocssccsscssossssenosccsoness 23

RAUL HILBERG, THE DESTRUCTION OF THE EUROPEAN

JEWS 54 (1961)..............cccercccccscscssccsscenscccercrsessrssssssoooces 22

RONALD HINGLEY, THE RUSSIAN SECRET POLICE:

MUSCOVITE, IMPERIAL RUSSIAN AND SOVIET Po-

LITICAL SECURITY OPERATIONS (1971)............eceeceeeeeeeeeeee 22

Rex Huppke, Name Can Set Off Bells with Airport

Security: David Nelsons Need Extra Time, Pa-

tience, at U.S. Checkpoints, CHI TRIB, June 29,

BIE, GB Bi seccccnccccccenisscnistiinininincsacnninnnentsnnsianmesineninaascases

Amy W. KNIGHT, THE KGB: POLICE AND POLITICS IN

on

THE SOVIET UNION (1990) ..............ccccccccssccesccceccssscccscscsecoas vat

Tracey Maclin, Seeing the Fourth Amendment from

the Backseat of a Police Squad Car, 70 B.U.L.

REV. 543 (1990)) (reviewing H. RICHARD UVILLER,

TEMPERED ZEAL (1988))............cssscssssoscccsccsccrerccrsesseseseees

MopDEL CODE OF PRE-ARRAIGNMENT PROCEDURE

© 19D.2 CIDTED a...cecccceeccccccserccccsecccavecsssoosssoonsesoseosoossosces

Wayland Pilcher, The Law and Practice of Field

Interrogation, 58 J. CRIM. L. CRIMINOLOGY &

POLICE SCI. 465, 491 (1967) .........cccccsesssesessrereseeseseeeeeees

vi

TABLE OF AUTHORITIES - Continued

Charles A. Reich, Police Questioning of Law Abid-

ing Citizens, 75 YALE L.J. 1161 (1966)................0000

ROGER OMOND, THE APARTHEID HANDBOOK: A GUIDE

TO SOUTH AFRICA’S EVERYDAY RACIAL POLICIES,

Fe CP csiniipeincncnneducumsicineniieeniinticiemmenistsineniaaininene

Jeffry Scott, Nation Divided: Tohono O’odham

Campaign for Citizenship, ARIZONA DAILY STAR,

iil epee etna ala

Donna Seaman, Identity Cards; Trumped Again,

ECONOMIST, Feb. 5, 1994, at 61.............ccccccceseseeseeeeee

Robert Ellis Smith, A National ID Card Violates

American Traditions, PRIVACY J., Mar. 1991, «t 1....

Richard Sobel, The Demeaning of Identity and

Personhood in National Identification Systems,

15 HARV. J. LAW & TEC 319 (2002)... 0... occ ececcececeeeceee

Potter Stewart, The Road to Mapp v. Ohio and

Beyond: The Origins, Development and Future of

the Exclusionary Rule in Search-and-Seizure

Cases, 83 COLUM. L. REV. 1365 (1983)......ccccccccccccceee

JOSEPH STORY, Document 33 in COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES (1833).....

Sykes & Clark, Deference Exchange in Police-

Civilian Encounters, in POLICE BEHAVIOR: A So-

CIOLOGICAL PERSPECTIVE (J. Lundam ed. 1980)........

Eberhart Theuer, Identity Checks, Subsequent

Procedures and the Right to Anonymity in

Europe (December 10, 2003) (unpublished manu-

ee eieecieierhitniibainlnenatesitnatahainstiiitinaiianaaa ia ites aati

— — a ee

—

1

STATEMENT OF INTEREST

BY AMICI CURIAE'’

Amicus curiae PrivacyActivism is a non-profit organi-

zation dedicated to informing and empowering individuals

about their privacy rights on the Internet. Through a

mixture of education (using graphics such as posters and

video games), activism, and the law, we strive to make

complex issues of privacy law, policy, and technology

accessible to all. Because we feel that the ruling in this

case has not adequately taken into account the severity of

privacy and anonymity issues, we believe this ruling

should be reversed.

Amicus curiae Cyber Privacy Project (CPP) is a non-

partisan organization focusing on governmental intrusions

against Fourth and Fifth Amendment rights of personal

privacy, particularly in governmental databanks and

national identification schemes for work and travel, and

on medical confidentiality and patient consent. CPP

director Richard Sobel is a scholar of identity issues, and a

senior research associate at the Program in Psychiatry

and the Law at Harvard Medical School.

Amicus curiae FreeToTravel.org is an association with

the mission of protecting the constitutional right to travel

and more generally preserving freedom of movement.

Amicus educates policymakers, the press, and the general

public about travel issues, publishes archives of right to

’ Letters from all parties consenting to the filing of this brief have

been filed with the Clerk of this Court. No counsel for a party authored

this brief in whole or in part, and no person or entity other than amici

curiae, or their counsel, made a monetary contribution to the prepara-

tion or submission of this brief.

2

travel jurisprudence, and supports litigation to protect free

travel interests.

Amici believe that pedestrian identification require-

ments seriously inhibit free movement, free speech and

association, the ability to engage in these pursuits anony-

mously, and the right to remain free from unreasonable

searches. Consequently, Amici have a vital interest in the

outcome of this case and encourage this Court to draw a

bright line rule stating that compelled identification is

unconstitutional.

¢

SUMMARY OF THE ARGUMENT

In Nevada today, police officers may choose whether or

not to demand identification from pedestrians during

lawful Terry stops. If the pedestrian refuses to identify

himself, he risks arrest. The result is that innocent per-

sons, who would otherwise be free to leave after the brief

Terry detention, must now identify themselves as a condi-

tion of ending that encounter. This situation has a pro-

found impact that reaches beyond the guarantees of the

Fourth Amendment and falls squarely into the realm of

First Amendment abuse. A great deal of protected First

Amendment activity can appear suspicious within the

definition provided by Terry and its progeny. This Court

has already decided in cases based on such fundamentally

First Amendment-protected activities that requiring

participants to reveal their identities is too chilling to

permit.

_— --— ———— =. +

3

ARGUMENT

I. Under Nevada’s Ruling, a Terry Stop Becomes

an Identification Checkpoint, Invasively Re-

quiring Innocent Pedestrians to Divulge Their

Identities or Face Arrest.

Prior to the Nevada Supreme Court’s ruling, innocent

pedestrians were secure in the knowledge that if they were

stopped, pursuant to a lawful Terry investigation, they

would be free to resume their activities after a brief

detention. Under the Nevada rule, however, such persons

must now take an affirmative action to regain their

freedom —- they must identify themselves or face arrest. A

Terry stop under the Nevada rule thus becomes an identi-

fication checkpoint in which innocent persons are forced to

justify their very existence to officers, or be arrested.

Contrary to Judge Young's assertion, “[rJequiring

identification” is not “far less intrusive than conducting a

pat down search of one’s physical person.” Hiibel v. Sixth

Judicial Dist. Court, 59 P.38d 1201, 1206 (Nev. 2002). A

Terry frisk can be performed on anyone, is over quickly,

and leaves no lasting traces. An officer encountering the

same person the next day cannot frisk that person again

based on the previous night’s Terry stop. An identification

demand, however, cannot be satisfied by someone without

a credential. And if a credential is provided, nothing

prevents an officer from remembering the identity, writing

it down, or radioing it in to headquarters, actions consid-

ered good police practice. Nothing prevents the officer

from looking the suspect up in a database after the Terry

encounter has ended, or from recording the identities of

persons routinely Terry stopped, perhaps to trade notes

with other officers. Moreover, credentials seldom contain

just a name. Instead, every bit of information on the

4

credential, or tied to it in a database, now becomes acces-

sible to the officer and his colleagues. Home address, date

of birth, Social Security number, fingerprints, arrest

records, driving history, employment, banking, publica-

tions, Internet commentary, DNA samples, and health

history, are but a few of the details about a person which

could potentially be accessed.

Terry frisks must be limited to weapons detection.

Nevada suggests that “knowing the identity of a suspect

allows officers to more accurately evaluate and predict

potential dangers that may arise during an investigative

stop.” Hiibel, 59 P.3d at 1205. Nevada’s premise is spe-

cious. To be of any practical value, officers will not stop at

merely obtaining identification, but will verify it in com-

puterized databases and retrieve additional data, such as

a residence address. Officers will then be able to decide, on

a whim, whether a suspect “belongs” in the expensive

neighborhood in which he is Terry stopped, especially if his

listed home address is a housing project.

When identification may not be compelled, innocent

pedestrians whose faults lie solely in suspicious skin color,

hair styles, or clothing know that if they are stopped, they

may be twenty minutes late to their intended engagement,

and have to suffer the indignity of a pat down. Having

committed no crime, however, such pedestrians should be

secure in the knowledge that, while Terry stops are annoy-

ing and temporarily rob them of their right to walk the

streets unmolested, they will not ultimately be arrested

for merely appearing suspicious. Terry stops are especially

frequent for minorities in high crime areas. As a result,

|

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5

certain innocent persons, especially minorities, are un-

doubtedly accustomed to being routinely stopped by

police.”

Under Nevada’s version of Terry, however, those same,

ultimately innocent pedestrians are no longer secure in

the knowledge that they will merely be late to their

destinations. Instead, they must take the active step of

identifying themselves, upon pain of arrest. Their release

from a Terry stop is predicated on relinquishing anonym-

ity, presumably to the officer’s satisfaction that they are

not wanted or otherwise detainable further.

In Coffin v. United States, Justice White traced

presumption of innocence to an anecdote by Emperor

Julian demonstrating its use. 156 U.S. 432 (1895). At the

end of a trial, it was plain that the accuser, Delphidius,

had presented insufficient evidence upon which to convict

the defendant, who had maintained his innocence and

presented no evidence of his own. Delphidius exclaimed,

“‘Oh, illustrious Caesar! If it is sufficient to deny, what

hereafter will become of the guilty?” to which Julian

replied, ‘If it suffices to uccuse, what will become of the

innocent?” Id., at 455. Under the Nevada rule, a person

must prove his identity, and implicitly with it, his inno-

cence. This is clearly at odds with American notions of

* Edward Lawson typifies such a person. Lawson was stopped 15

times in a period of less than two years for sch reasons as “walking on

an otherwise vacant street because it was late at night, the area was

isolated, and the area was located close to a high crime area,” and

“walking at a late hour in a business area where some businesses were

still open ... because burglaries had been committed by unknown

persons in the general area.” See Kolender v. Lawson, 461 U.S. 352, n.2

(1983).

6

innocence and guilt. The assumptions behind a Terry

identification demand impermissibly reverse the presump-

tion of innocence and give police officers too much discre-

tion.

II. Free Movement and Anonymity Are Essential

Elements to the Exercise of Many First Amend

ment Activities. :

A. Free Movement.

Freedom of movement is a necessary condition for the

exercise of many First Amendment rights. Routine iden-

tity checks desensitize us to their authoritarian nature,

eventually eliminating the sense that it is wrong to have

to identify ourselves merely to pass from here to there. An

identification demand, of any kind, affects an individual’s

freedom of movement.

This Court has repeatedly found the right to move

about freely on public streets as one of the core liberties of

citizenship. It rests on personal security against unwar-

ranted searches and seizures and the right to be left alone

that this implies. As Chief Justice Warren observed in his

majority opinion in Terry v. Ohio, “[nJo right is held more

sacred, or is more carefully guarded, by the common law,

than the right of every individual to the possession and

control of his own »erson, free from all restraint or inter-

ference of others, unless by clear and unquestionable

authority of law.” 392 U.S. 1, 9 (1968).

In Chicago v. Morales, this Court affirmed that the

“right to remove from one place to another according to

inclination [is] an attribute of personal liberty protected by

the Constitution.” 527 U.S. 41, 53-54 (1999). An “individ-

ual’s decision to remain in a public place of his choice is as

7

much a part of his liberty as the freedom of movement

inside frontiers that is a part of our heritage, or the right

to move to whatsoever place one’s own inclination may

direct.” Id.

Few rights guaranteed under the First Amendment

may be enjoyed without moving about. In order to associ-

ate with others in political activities or pursue religious

beliefs, one must be able to go to the place where one’s

associates meet. In order to assemble and participate in a

demonstration against a government policy, boycott a

business, or rally on behalf of a political candidate, free-

dom of movement is a prerequisite. Of course, one may not

speak to such a rally without traveling.

B. Anonymity.

Use of anonymous rhetoric has a rich history in

America dating to the founding of this country. The Feder-

alist Papers are perhaps the finest example of the impor-

tance of anonymity.’ Authored by James Madison,

Alexander Hamilton, and John Jay, under the moniker

“Publius,” the work may never have been published or

distributed had the authors been forced to reveal their

true identities. Similarly, the pre-Revolutionary War

“Letters of Junius” pseudononymously espoused a wealth

of constitutional rhetoric during the years 1767-1772,

* THE FEDERALIST PAPERS (Clinton Rossiter, ed., 1961).

8

including sentiment that ultimately influenced the content

of the Bill of Rights.“

For centuries, anonymity has also been employed

positively for more mundane purposes. In his autobiogra-

phy, Benjamin Franklin recounted how he employed

anonymity not to found a republic but to be printed in his

brother’s newspaper.’

A form of anonymity — substituting a number for a

name — is employed by many law journals when assessing

the writing skills of prospective journal members. Indeed,

this technique of “blinding” academic submissions is

similarly employed by law schools around the country

during examinations. Moreover, authors in general have a

history of adopting pseudonyms,’ for varying reasons.

* For example, in 1772, Junius wrote, “The liberty of the press is

the palladium of all the civil, political and religious rights of an

Englishman. ... ” JOSEPH STORY, Document 33 in COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES (1833).

* FRANKLIN, THE AUTOBIOGRAPHY OF BENJAMIN FRANKLIN (“[BJeing

still a Boy, & suspecting that my Brother would object to printing any

Thing of mine in his Paper if he knew it to be mine, I contrivd to

disguise my Hand, & writing an anonymous Paper I put it in at Night

under the Door of the Printing House. It was found in the Morning &

communicated to his Writing Friends when they call’d in as Usual.

They read it, commented on it in my Hearing, and I had the exquisite

Pleasure, of finding it met with their Approbation, and that in their

different Guesses at the Author none were named but Men of some

Character among us for Learning & Ingenuity.”)

* E.g., Mark Twain (Samuel Langhorne Clemens), O. Henry

(William Sydney Porter), Voltaire (Francois Marie Arouet), George Eliot

(Mary Ann Evans), Charles Dickens (sometimes writing as “Boz”), and

Dr. Seuss (Theodore Geisel).

a —

9

This Court has recognized the benefits inherent in

anonymity spanning this country’s history — particularly

among dissidents. Throughout McIntyre v. Ohio Elections

Comm’n, the Court eloquently referenced the “important

role in the progress of mankind” that anonymous litera-

ture in all forms has played:

Anonymity ... provides a way for a writer who

may be personally unpopular to ensure that

readers will not prejudice her message simply

because they do not like its proponent. [There is]

a respected tradition of anonymity in the advo-

cacy of political causes. This tradition is perhaps

best exemplified by the secret ballot, tre hard-

won right to vote one’s conscience without fear of

retaliation.

514 U.S. 334, 341-43 (1995) (quoting Talley v. Califor-

nia, 362 U.S. 60, 62 (1960) (internal quotations and

footnotes omitted). See also Watchtower Bible & Tract

Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150

(2002); Brown v. Socialist Workers’ 74 Campaign Comm.,

459 U.S. 87, 91 (1982) (holding that the “Constitution

protects against the compelled disclosure of political

associations”); Hynes v. Mayor of Oradell, 425 U.S. 610,

623-28 (1976) (Brennan, J., concurring in part) (asserting

disclosure requirements put an impermissible burden on

political expression); Shelton v. Tucker, 364 U.S. 479, 485-

87 (1960) (holding invalid a statute compelling teachers to

disclose associational ties because it deprived them of free

association rights); Talley v. California, 362 U.S. 60, 64-65

(1960) (voiding an ordinance compelling the public identi-

fication of group members); Bates v. City of Little Rock,

361 U.S. 516, 522-24 (1960) (holding, on free assembly

grounds, that the NAACP did not have to disclose its

membership lists); Joint Anti-Fascist Refugee Comm. uv.

10

McGrath, 341 U.S. 123, 145 (1951) (Black, J., concurring)

(expressing the fear that dominant groups might suppress

unorthodox minorities if allowed to compel disclosure of

associational ties).

Anonymity is also an important guarantor of other

First Amendment activity. “It is hardly a novel perception

that compelled disclosure of affiliation with groups en-

gaged in advocacy may constitute .. . restraint on freedom

of association. ... ” NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 462 (1958). “Anonymity is a shield from the

tyranny of the majority. It ... protect{[s] unpopular indi-

viduals from retaliation — and their ideas from suppres-

sion — at the hand of an intolerant society.” McIntyre, 514

U.S. at 357. It also protects innocent individuals from

unwarranted police intrusions.

C. Compelled Identification During Terry Could

Circumvent Well-Established First Amend-

ment Freedoms.

The effect of compelled identification on First

Amendment activity can be seen by removing rights to free

movement and anonymity from the exercise of those

activities, and evaluating the end results. Mandatory

identification schemes “implicate consideration of the

constitutional right to freedom of movement.” Kolender v.

Lawson, 461 U.S. 352, 358 (1983). As identification is

anathema to anonymity, such schemes also implicate that

right.

In NAACP v. Alabama ex rel. Patterson, a unanimous

Court noted with concern the “threat of physical coercion,

and other manifestations of public hostility” that NAACP

members would face if their identities were disclosed. Id.

11

at 462. The Court recognized that advocacy is enhanced by

association, and that the ability to speak and associate

freely relies on anonymity:

“We hold that the immunity from state scrutiny

... is here so related to the right of the members

to pursue their lawful private interests privately

and to associate freely with others in so doing to

come within the protection-of the Fourteenth

Amendment.”

357 U.S. 449, 465 (1958).

Compelled identification’s harm may be especially

pronounced in politically active places, such as at protests

or at minor political party meetings. “It is hardly a novel

perception that compelled disclosure of affiliation with

groups engaged in advocacy may constitute [an] effective

... restraint on freedom of association.... ” Jd. at 462.

Would protestors bother painting picket signs and travel-

ing to a demonstration if officers had the power to compel

their identities upon mere suspicion of wrongdoing? If the

protest’s theme were shared by a large portion of a com-

munity, they might. If the message were unpopular,

however, compelled identification might be more likely —

due to officer concern that contrarians intend mischief -

and ultimately more stifling to the cause. Large numbers

of NAACP members may thus have been intimidated into

passivity, derailing the civil rights movement, had police

been able to demand identification of people participating

in NAACP events. Such an intrusion into the free move-

ment of its members might have driven the organization

underground, robbing it of the high visibility that was an

element crucial to its success.

12

The NAACP Court also noted that compelled identifi-

cation can “induce members to withdraw from [an] Asso-

ciation and dissuade others from joining it because of fear

of exposure of their beliefs shown through their associa-

tions and of the consequences of this exposure.” Jd. at 463.

To a diligent officer, attendees of a nighttime Alcoholics

Anonymous meeting or an inner-city adult literacy class

may appear suspicious as they travel to or arrive at their

destination. If program participants could be compelled to

identify themselves, they may well refrain from attending.

The ability to physically attend meetings and protests,

rather than merely read about them, or watch them on

television, is generally taken for granted. If identification

checkpoints were encountered en route, however, the

importance of the “right to wander freely and anony-

mously” in enabling First Amendment activity would

become abundantly more apparent. Hiibel at 1204.

D. High Standards Exist for Overcoming Ano-

nymity in Other Legal Areas.

Judge Young argues that “we reveal our names in a

variety of situations every day without much considera-

tion,” implying that the decision whether or not to reveal

one’s identity is of effectively “nominal” consequence.

Hiibel v. Sixth Judicial Dist. Court, 59 P.3d 1201, 1206

(Nev. 2002). Such an assertion is plainly contrary to the

amount of litigation on the topic, especially outside of the

context of Terry and in the recent development of jurispru-

dence governing Internet defamation. Higher equivalent

standards than reasonable suspicion outside of the crimi-

nal justice area suggest how inadequate reasonable

suspicion alone is for permitting an identity search.

13

Dendrite International, Inc. v. Doe, No. 3 is recognized

by many as the seminal case defining the proper stan-

dards for when an Internet Service Provider (ISP) must

honor a subpoena for the identity of an anonymous or

pseudononymous user. 775 A.2d 756 (N.J. Super. Ct. App.

Div. 2001). The Dendrite defendant used the name,

“xxplrr,” to post nine comments to a Yahoo! bulletin board

about supposed accounting practice changes at Dendrite,

as well as an attempt by the CEO to sell the company. The

court noted the importance of “striking a balance between

the well-established First Amendment right to speak

anonymously, and the right of the plaintiff to protect its

proprietary interest and reputation through the assertion

of recognizable claims based on the actionable conduct... .”

~Id. at 760. Building upon the framework set out in Colum-

bia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.

Cal. 1999), the Dendrite court held that an ISP should only

be required to provide subscriber identity information: (1)

when the court is satisfied, by evidence or pleadings; (2)

that the subpoena requester has a legitimate, good faith

basis to conten] that it may be the victim of conduct

actionable in the jurisdiction where suit was filed; and (3)

the subpoenaed identity information is centrally needed to

advance that claim. It is difficult to find an exact fit

between this civil rule and criminal procedure require-

ments. Nonetheless, Dendrite plainly demonstrates that

people’s interests in their identity should not be overcome

upon mere allegations of wrong-doing by an allegedly

aggrieved party. The weak requirements of reasonable

suspicion are analogous to the mere allegations rejected in

Dendrite, and thus reasonable suspicion provides an

insufficient base for an officer to gain identity information

from a pedestrian during a Terry stop.

14

Whether or not identity can be compelled is also

central to evaluating the boundaries of a reporter’s ability

to keep a source confidential. As argued in Branzburg v.

Hayes, reporters’ relationships with informants rely

primarily on trust that those informants’ identities will

not be revealed. 408 U.S. 665, 671 n.5 (1972). Journalists

thus routinely attempt to quash subpoena motions for

their sources’ identity, to avoid revealing that information

in both civil and criminal cases. The policy interest often

advanced by journalists is that the ability of news report-

ers to collect, assemble, and distribute news to the public

is central to the free flow of ideas, and compelling identifi-

cation would chill those efforts. See, eg., Pinkard v.

Johnson, 118 F.R.D. 517, 520 (M.D. Ala. 1987). The emerg-

ing standards for compelling information from reporters,

whether in civil, or criminal proceedings, do not treat

sources’ identities as “nominal” bits of information. Rather,

courts weigh “the paramount interest served by the

unrestricted flow of information protected by the First

Amendment [against] the subordinate interest served by

the liberal discovery provisions. ... ” Loadholtz v. Fields,

389 F. Supp. 1299, 1300 (M.D. Fla. 1975). Civilly, the

appropriate test requires the seeking party to show: (1) the

identity is relevant; (2) there are no other means for

obtaining the identity, or all other means have been

exhausted; and (3) there is a compelling reason for the

identity. Id. Such a standard is significantly higher than

the requirements of reasonable suspicion.

|

15

Ill. A Requirement that a Detainee “Shall Identify

Himself’ is Too Vague to Enforce.

A. Verbal Identification is Vague and Largely

Useless.

-

The core rationale given for the identity exception is

that it would help protect officers by alerting them that

their detainee is potentially dangerous. See Hiibel, 59 P.3d

at 1205. But, if Section 171.123(3) is truly limited to verbal

identification, little information and little safety is gained.

In a small town, it is likely that the name of someone not

personally known to the officer will not help that officer

assess the danger. In cities, many people may have the

same name. In a highly mobile society, a stopped “David

Nelson,” may be any one of hundreds or thousands of other

individuals with the same name.’ Verbal identities offer

the officer little safety, but a large degree of discretionary

power.

One could interpret Nevada Revised Statute

171.123(3)’s “shall identify himself” language to compel

only a verbal identification, and not the production of

credentials. However, many Americans today equate

“identification” with a credential such as a driver’s license,

ID card, or passport, rather than just a verbal act. Even

" According to Pdom.com, an Internet business which researches

public records databases and registers personal domains, there are

5,200 persons named David Nelson in the United States. Professor

David Nelson of Northwestern University and others, including the son

of TV stars Ozzie and Harriet, have been frequently stopped at airports

because a David Nelson appears on a government no-fly list. See Rex

Huppke, Name Can Set Off Bells with Airport Security: David Nelsons

Need Extra Time, Patience, at U.S. Checkpoints, CHI TRIB, June 29,

2003, at 1.

Judge Young switches back and forth from using the word

as a verb, when discussing the statutory language, to a

noun, when discussing identification in practice. Hiibel, 59

16

P.3d at 1205, 1206.

If the Court decides that only a verbal response is

required, then the statute’s wording as it stands would be

misleading. Officers will continue to demand that one

“identify himself,” and the public will almost uniformly

feel compelled to offer a credential, even when there is no

legal backing for such a demand. The interrogating officer

will certainly not offer a clarifying interpretation to the

victim of this deception.

Assuming, arguendo, that the statute requires only

verbal identification, it is nonetheless vague, because the

concept of identity is itself vague. What constitutes an

acceptable and sufficient response?

“Larry Hiibel.”

“I am Mrs. John Smith.” What if the person

is a married woman? Can she give her hus-

band’s name, maiden name, or must she give

the name she most often uses?

“Starchild Moonbeam.” What if the person

has long forsaken his given name, changing~

under common law but not by formal court

decree?

“My name is Jane.” “Dr. Jones, at your ser-

vice.” May one give only a first name, as is

customary in situations such as “meeting a

new acquaintance”? Hiibel, 59 P.3d at 28. Or,

may only a last name be given?

~ easels

17

¢ “Im Magic Johnson.” If a person is better

known by a nickname than by the name given

by his parents is this acceptable?

e “I live here and am walking my dog.” Can

people describe their lawful presence, rather

than providing formal names?

¢ “George Bush.” “I am J. Piermont Morgan.”

Must a person supply a middle initial or

middle name if his first and last name are

common? May initials be used in lieu of other

parts of a name?

e “My only name is Arvind.” There are people

who have only one name, because that is the

custom of their culture.

¢ “I am Abdullah Ahmad Badawi.” Must people

signify which parts of the name they give are

honorifics, which are the family name, and

which the personal name?

Must any other verbal identifying information be

given, such as a date of birth, residence address, telephone

number, Social Security number, citizenship, nationality,

or employer? If the officer is not satisfied with the initial

response and continues asking questions about identity, is

the suspect compelled to answer all of them? At what point

can he return to remaining silent without risking a legiti-

mate arrest?

If dissatisfied with the verbal identification, or lack

thereof, provided during a Terry stop, will an officer then

have the discretion to commence an identity frisk — for

example, by searching the suspect’s wallet, purse, or

briefcase for identifying information — though there exists

no constitutional basis for such searches?

18

The short statute does not answer any of these ques-

tions. It would take dozens of precedent-setting court

decisions in different factual circumstances to even pre-

tend to have answers for some of them. Yet innocent

citizens being detained must answer them, without guid-

ance, and upon pain of arrest if they answer incorrectly.

B. Requiring a Credential Document is Also

Vague, Requires Due Process on Credential

Issuance, and Exposes Large Amounts of

Irrelevant and Damaging Information.

Assume, arguendo, that the plain meaning of “shall

identify himself” instead requires that the detainee

produce a credential. Such a statute is still highly vague,

because the concept of credentials is almost as vague as

that of identity. A line of questions arises regarding what

credentials are acceptable that closely parallels the previ-

ous list of what verbal response would be acceptable.

To mention just a few:

¢ Is presentation of photo identification suffi-

cient or even necessary?

¢ Must the person present the “best” identifica-

tion available at the time, such as a passport

one is carrying, over shopping cards or credit

cards one is also carrying?

A clarifying construction of “credible and reliable”

identification was declared unconstitutionally vague in

Kolender v. Lawson, thus only a more precise formulation

has any hope of constitutionality. 461 U.S. 352, 354 (1983).

Nevada shares borders with California, Oregon,

Idaho, Utah, and Arizona. People may constitutionally

19

enter Nevada on foot or as passengers from any of those

states. Most non-Nevadans are not required to obtain or

produce any credentials by their home jurisdiction. Even if

Nevada were to accept “comparable credentials” from

other jurisdictions, vagueness concerns loom. If non-

residents risk arrest the moment they set foot in Nevada

without credentials acceptable to Nevada, the right of free

ingress and regress would be undermined.

A law that makes people subject to arrest unless they

follow certain rutes, without providing any way for them to

follow those rules, would clearly violate the Fourth

Amendment protection against unreasonable seizures and

raise serious due process concerns.

To obtain a Nevada identification credential, a person

must provide a great deal of private information, along

with underlying documentation which he may or may not

have.* See NRS 483.850; 483.860. The Nevada credential-

ing process also requires a physical or mailing address. Jd.

Many retirees are mobile, and have no residence address.

Citizens are not otherwise required to have a mailing

address, and many do not; yet Nevada law does not ac-

commodate those without addresses. If credentials are

required, people must be given ways to obtain those

credentials, and due process must attach to their issuance.

* For example, 7,000 citizens of the Tohono O’odham Nation, a

large Indian reservation in Arizona, have no birth records because the

tribe’s customs did not include writing down births. See Jeffry Scott,

Nation Divided: Tohono O’odham Campaign for Citizenship, ARIZONA

DAILY STAR, May 30, 2001.

20

If NRS 171.123(3) were interpreted to require a

credential, either the definition of acceptable‘ credentials

would be unconstitutionally vague, or many other parts of

Nevada law would also have to be reinterpreted to avoid

potential due process and equal protection concerns.

Neither alternative is acceptable.

C. No Reasonable Interpretation Can Be Made.

Section 171.123(3) demands that a detained pedes-

trian “shall identify himself, but may not be compelled to

answer any other inquiry of any police officer.” The stat-

ute, however, does not explain how a pedestrian shall

effect this identification, nor does it enumerate identifica-

tion methods that are unacceptable, nor does it provide a

procedure to follow should an officer be dissatisfied with

an identification attempt. In Kolender v. Lawson, the

Court held as impermissibly vague a statute requiring

“credible and reliable” identification upon being stopped

for one of several circumstances set out by California

statute. 461 U.S. 352, 354 (1983). At the outset, Nevada’s

statute is more vague than that struck down in Kolender,

because it provides even less guidance to officers and ~

pedestrians.

The Nevada scheme creates a broad range of ques-

tions, and the statute “requires the doing of an act in

terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its appli-

cation,” in clear violation of the vagueness doctrine. United

States v. Lanier, 520 U.S. 259, 266 (1997) (internal quota-

tion marks omitted).

21

“That citizens can walk the streets, without explana-

tion or formal papers, is surely among the cherished

liberties that distinguish this nation from so many others.”

Gomez v. Turner, 672 F.2d 134, 143-44 n.18 (D.C. Cir.

1982). This Court should remind the Nevada Supreme

Court of this cherished liberty by embracing it fully, and

forbidding compelled identification schemes.

IV. Compelled Identification Schemes are Histori-

cally Harmful.

The ramifications of identification schemes were

eloquently described in State v. Kerwick, 512 So. 2d 347,

349 (4th Fla. Dist. Ct. App. 1987):

“(T]he evidence in this cause has evoked images

of other days, under other flags, when no man

traveled in his nation’s roads or railways without

fear of unwarranted interruption, by individuals

who had temporary power in the Government.

The spectre of American citizens being asked, by

badge-wielding police, for identification, travel

papers — in short a raison d’etre — is foreign to

any fair reading of the Constitution, and its

guarantee of human liberties. This is not Hitler’s

Berlin, nor Stalin’s Moscow, nor is it white su-

premacist South Africa.”

We agree. Historically, compelled identification was

used most prominently to isolate and gather Jews in

Germany and Nazi occupied territories before and during

World War II. All German Jews were required to apply for

identification cards by December 31, 1938, and were

22

required to carry those cards at all times.’ The identification

system “was a powerful weapon in the hands of the po-

lice. ... It enabled police to pick up any Jew, anywhere,

anytime. ... Identification had a paralyzing effect on its

victims. The system induced the Jews to be even more

docile.... ”” It was a society where “no one would es-

cape.... Never before had so many people been identified

so precisely, so silently, so quickly and with such far-

reaching consequences. The dawn of the Information Age

began at the sunset of human decency.”™”

In 1932, the USSR began requiring citizens to carry

internal passports. The Soviet police, or militsia, main-

tained the system of passports that virtually everyone over

the age of sixteen was required to have. In addition to

standard demographic information, such passports also

included employer’s name, employment beginning and end

dates, and criminal records.”

Beginning in 1958 for men, and in 1963 for women,

the South African government required blacks to carry

passes (“dompas”) that prohibited their moving freely

* See RAUL HILBERG, THE DESTRUCTION OF THE EUROPEAN JEWS 54

(1961).

° Td. at 58.

" EDWIN BLACK, IBM AND THE HOLOCAUST: THE STRATEGIC

ALLIANCE BETWEEN NAZI GERMANY AND AMERICA’S MOST POWERFUL

CORPORATION (2001), p. 104.

% See RONALD HINGLEY, THE RUSSIAN SECRET POLICE: MUSCOVITE,

IMPERIAL RUSSIAN AND SOVIET POLITICAL SECURITY OPERATIONS (1971);

see also AMY W. KNIGHT, THE KGB: POLICE AND POLITICS IN THE SOVIET

UNION (1990). :

wb 2h

23

about the country.” The official purpose of the pass was to

allow the South African black to prove that he had the

right to be present in a specific area. Rwandan massacres

of the Tutsi echoed the Holocaust, employing the “carte

d’identite,” developed when Rwanda was still a Belgian

colony,” to distinguish Hutus from Tutsis with devastating

effects.”

The existence of a national identity system does not

mean a government will necessarily engage in human

rights violations. Instead, it is a “facilitating factor, mak-

ing it more possible for governments, local authorities or

. militias to more readily engage in violations.”” As

Britain experienced after creating a national identification

system for rationing in 1939, temptation by police officers

to use it for routine law enforcement rose, with an increase

of identification demands.” Protests over routine police

* RoGER OMOND, THE APARTHEID HANDBOOK: A GUIDE TO SOUTH

AFRICA’S EVERYDAY RACIAL POLICIES, 122 (1986).

4 Id.

“In a recent survey of countries’ mandatory identification

schemes, Austrian comparative law scholar and identity expert

Eberhart Theuer stated that in Belgium and Germany carrying an

identity credential is mandatory, though without penalty of arrest,

while in Denmark not producing identification if there is a duty to do

so, constitutes an arrestable offense punishable by fine. See Eberhart

Theuer, Identity Checks, Subsequent Procedures and the Right to

Anonymity in Europe (December 10, 200°3) (unpublished manuscript).

* James Fussell, “Group Classification on National ID Cards as a

Factor in Genocide and Ethnic Cleansing,” Paper for the Yale Univer-

sity Genocide Series, November 15, 2001.

17 Id.

* See Annie I. Anton, National Identification Cards (Dec. 17, 1996),

available at http://www.cc.gatech.edu/computing/SW_Eng/people/Phd/d.

html.

24

identification demands contributed to the discard of the

national ID card when rationing ended.”

The historic abuses of identity demands and national

IDs in Nazi Germany and in other 20th century régimes

are mirrored today by uses in North Korea, Iran, Iraq,

Myanmar, and China of registration, identity demands,

and cards for social and population control. Used initially

for social services, identification schemes can breed

movement control and ultimately abuse.”

In stark comparison, government attempts to impose

national identification on New Zealand or Australia

citizens have been vociferously opposed.” Numerous

democratic countries, including Sweden, Norway, South

Korea, and India do not have national IDs.” At best,

national identification schemes beget an ever increasing

demand for that identification, for increasingly routine

and mundane aspects of daily life. At worst, compelled

identification can proliferate into a downward spiral of

full-fledged systems of social control, and ultimately,

oppression. “History demonstrates that the adoption of

repressive measures, even to eliminate a clear evil, usually

results only in repression more mindless and terrifying than

the evil that prompted them. Means have a disturbing

* See Donna Seaman, Identity Cards; Trumped Again, ECONOMIST,

Feb. 5, 1994, at 61.

* See Richard Sobel, The Demeaning of Identity and Personhood in

National Identification Systems, 15 HaRv. J. Law & TEc 319, 343-49

(2002).

* See Robert Ellis Smith, A National ID Card Violates American

Traditions, PRIVACY J., Mar. 1991, 1, 2, 36.

* Id. at 41.

25

tendency to become the end result.” Bostick v. State, 554

So. 2d 1153, 1158-1159 (Fla. 1989).

V. ABright Line Rule Will Help Citizens Know and

Defend Their Rights.

Citizens encountering police face hard choices. Their

dilemma is whether or not to assert rights such as refusal

to consent, assuming they are even aware of such rights. If

they assert their rights incorrectly, they may be arrested

and prosecuted for disobeying lawful orders. If they assert

no rights and meekly follow orders, they may consent to an

embarrassing or incriminating search they could other-

wise have refused. If they assert their rights correctly,

especially with vigor, they may be deemed “suspicious,”

receiving additional police attention, and possible punish-

ment. A bright line rule would help all parties know the

parameters of the encounter, promoting individual rights

and minimizing officer mistakes and liability.

People are afraid to assert their rights to police

officers. This is so, in large part, because officers “are

cloaked with special authority and obvious power.””

Confronting an officer is fundamentally different from

confronting another pedestrian. “There is authority in the

approach of the police, and command in their tone. I can

ignore the ordinary person, but can I ignore the police?”™

*® Sykes & Clark, Deference Exchange in Police-Civilian Encoun-

ters, in POLICE BEHAVIOR: A SOCIOLOGICAL PERSPECTIVE 91 (J. Lundam

ed. 1980).

* Charles A. Reich, Police Questioning of Law Abiding Citizens, 75

YALE L. J. 1161, 1162 (1966).

26

Empirical evidence confirms this assertion. In a study of

300 field stops in Chicago, Illinois, every person answered

the officer’s questions — no one refused.” “The only conclu-

sion is that the presence of a police officer, no matter how

pleasant his demeanor, implies the potential use of force —

force at least to effectuate the stop if not to compel the

answers.”” As noted in State v. Kerwick, “[t]his court

would ill-expect any citizen to reject, or refuse, to cooper-

ate when faced with the trappings of power like badges

and identification cards. And these officers know that —

that is one reason that they display those trappings.” 512

So. 2d 347, 348-49 (Fla. App., 1987).

In Miranda v. Arizona, the Court quoted with ap-

proval, “It is probable that even today, ... there is still a

general belief that you must answer all questions put to

you by a policeman, or at least that it will be the worse for

you if you do not.” 384 U.S. 436, 468 n.37 (1966) (quoting

Lord Devlin, THE CRIMINAL PROSECUTION IN ENGLAND 32

(1958)). Indeed, another reason why people fail to assert

their rights is because they fear that to do so would be

futile. “In the real world, people are afraid of the power of

the police and want to minimize the chances of that power

being asserted over them. People do not assert their rights

because they know the police are not always respectful of

those rights.””

* See Wayland Pilcher, The Law and Practice of Field Interroga-

tion, 58 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 465, 491 (1967).

** Id. at 473.

* Tracey Maclin, Seeing the Fourth Amendment from the Backseat

of a Police Squad Car, 70 B.U.L. REV. 543 (1990) (reviewing H.

RICHARD UVILLER, TEMPERED ZEAL (1988)).

27

Belief that asserting rights will create further suspi-

cion is also a concern.” Such concern is well-advised, as

evidenced in the recent case of Graves v. City of Coeur

D’Alene, 339 F.3d 828 (9th Cir. 2003). In that case, officers

at an Aryan Nation parade were persistently performing

consent searches on pedestrians’ bags. Jd. at 835. Plaintiff

Crowell was asked several times to submit to a consent

search of his backpack, but he refused each time, and

continued walking about the area. Crowell was ap-

proached again by an officer, who noted that Crowell was

carrying a heavy bag containing cylindrical objects, but

not otherwise suspicious. The officer continued to demand

Crowell consent to a search, and Crowell continued to

refuse, asserting his Fourth Amendment rights increas-

ingly loudly to officers and the “crowd of media people”

nearby. Id. at 836. The officer ultimately arrested Crowell

for refusal, citing “the tension in the air just getting

thicker and thicker around me, which I did not want” as

his justification. Jd. Crowell was arrested for refusing to

consent to a search in front of the media. His bag con-

tained peanut butter. Though the Ninth Circuit upheld his

rights, it refused to grant him relief against the officers

who violated his rights.

Justice Stewart explained that “(t]he inevitable result

of the Constitution’s prohibition against unreasonable

searches and seizures and its requirement that no warrant

issue but upon probable cause is that police officers who

obey its strictures will catch fewer criminals. That is not a

political outcome impressed upon an unwilling citizenry by

unbeknighted judges. It is the price the framers anticipated

** See MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 110.1, at

259-60 (1975) (citations omitted). -

28

and were willing to pay to ensure the sanctity of the

person, the home, and property against unrestrained

governmental power.””

In recent cases, this Court has seemingly suggested

that citizens’ rights are protected by the rule that refusal

to cooperate, without more, may not raise the level of

suspicion during a police encounter. See, e.g., Florida v.

Bostick, 501 U.S. 429. This Court has given insufficient

recognition to the realities of police encounters. Amici

respectfully ask the Court to consider the stressful and

unnerving situation that a police encounter presents to

even the most law-abiding citizen. This Court should aid

citizens by enforcing the rights that they already possess:

a bright line rule that identification may not be compelled.

Such a rule is the only way to breathe life back into the

citizen’s essential, but much abused, right to say “no.”

+

CONCLUSION

If citizens are required to identify themselves by name

during a Terry stop today, little prevents the government

tomorrow from expanding its notion of identity to include

any fact which makes up the bundle of what society

generally terms “identity.” If Americans must produce

credentials, nothing prevents officers from recording those

credentials, and entering or retrieving data based upon

them. Rights should be affirmed, not abridged, by this

Court. Americans have a fundamental right to wander

* Potter Stewart, The Road to Mapp v. Ohio and Beyond: The

Origins, Development and Future of the Exclusionary Rule in Search-

and-Seizure Cases, 83 COLUM. L. REV. 1365, 1393 (1983).

29

inside this country, to be left alone, and to speak or remain

silent, all without the government’s permission. Compelled

identification during Terry encounters will undermine

these freedoms with potentially devastating effects. The

only clear way this Court can protect its citizens is not by

subjecting them to yet another encroachment on their

liberties, but by giving them the proper tool to enforce

their rights: a bright line rule that identification may not

be compelled.

Respectfully submitted,

WILLIAM M. SIMPICH

(Counsel of Record for

Amici Curiae)

1736 Franklin Street,

Tenth Floor

Oakland, California 94612

(510) 444-0226

LINDA G. ACKERMAN

DEBORAH S. PIERCE

PRIVACYACTIVISM

4026 18th Street

San Francisco, California 94114

(415) 225-1730

ROBYN E. WAGNER

FREETOTRAVEL.ORG

Box 4913

San Jose, California 95150

(877) 623-7066