The Hiibel Rorschach

I called upon the Supreme Court, when considering the case of Larry Hiibel, arrested merely for not showing an I.D., to consider our increasingly databased world when judging whether a police request for someone to identify themself is reasonable.

In the Washington Post Sunday, Anne Coughlin called upon them to consider race:

If identification laws become routine features of state penal codes, what criteria will police use when deciding to stop people and ask them their names? History suggests that the police will rely heavily, and sometimes exclusively, on race. The police will invade the privacy of people who are young, male and black (or, perhaps, these days, men who look Middle Eastern) and they will leave the rest of us alone. And, at least as construed by the current court, neither the Fourth nor the Fifth Amendment has much, if anything, to say about that.

Over the past few years, data on traffic violations collected by researchers in a number of states have supported what African American drivers already knew: Police officers are more likely to enforce the traffic code against black drivers than white ones. Consider the ways in which identification laws may extend and exacerbate the potential for racist policing. The identification requirement applies only to one subset of citizens, those whom the police reasonably suspect of having committed crimes. Who are these suspicious people going to be? The same people whom the police target when enforcing the traffic laws. By definition, at least at some times and in some places, minority drivers, for no reason other than physical appearance, will be found by police to give rise to a reasonable suspicion of crime.

My concern is that, if the court uses the Hiibel case to affirm the police's authority to demand ID from suspicious people, we'll end up with a system that amounts to national ID cards for minorities only.

Let's hope that the potential for racist enforcement is on the justices' minds as they decide Hiibel.

Race, databases--let's hope something causes the Supremes to decide properly on this case. But a combination of first-hand reports from a legal-eagle friend in D.C. and Dahlia Lithwick's report in Slate lead me to fear the justice's are only giving the most superficial consideration to the important issues involved here.

Comments

[Jennifer]

Don't forget the growing anti-liberty attitude which staes that so long as the government doesn't actually kill or torture you, nobody should complain. I can hear the arguments now: "C'mon, is getting pulled over THAT big a deal? Hmmph. 200 years ago you would have been a slave, and here you are whining because the cops made you ten minutes late to a dinner party? If you were an Arab woman you wouldn't be allowed to drive at all. Ever think about that, Whinypants?"

Et cetera.

[BoomerSooner]

And don't forget my personal favorite these days: "If you haven't done anything wrong you don't have anything to hide!!" Everyone say it with me now..Ihre papiere gefallen.

[Hydroman]

After the 5th cir. ct. destruction of our 4th amendment I totally agree with Matthew. Now what`s
next?

[The Lonewacko Blog]

"The police will invade the privacy of people who are young, male and black"

Anecdotes about the coppers pulling over black lawyers aside, this whole DWBorB thing is not so much a race thing as a potential-for-having-committed-a-crime thing. Young, male, black gangstas are generally more liable to commit crimes than elderly white people. In some areas, white guys driving mini-trucks are the favored target.

In any case, Keep Fighting The Oppression.

[Jennifer]

"this whole DWBorB thing is not so much a race thing as a potential-for-having-committed-a-crime thing. Young, male, black gangstas are generally more liable to commit crimes than elderly white people. In some areas, white guys driving mini-trucks are the favored target."

Doesn't matter. The whole point about being American is that you're supposed to fear the cops only if you've COMMITTED a crime, not if you are in the same ethnic group as someone who's committed a crime.

I haven't seen the cops pull over white guys in suits after the Enron and WorldCom scandals, which suggests that racism is indeed the motive.

[joe]

It isn't "Driving While a Young Male Black Gangsta," wacko, it's "Driving While Black." Nice leap you made there.

[BoomerSooner]

Jennifer - white guys in suits typically arent committing the crimes (or non-crimes) that these cops are looking for. Their motive may be racism but if it is I dont think this proves it. I think a lot of the problem here can be attributed to the War on Drugs. Many of these arrests are just for drug posession (a non-crime). So the cop plays the odds..he looks at who sells the drugs and who uses the drugs (ok so he doesnt look at EVERYONE who uses the drugs..just the ones without great lawyers). This could be the thought process there..it isn't right but it also isn't racism.

[Greg]

Maybe rich white guys get audited more often. White collar criminals typically don't carry weapons or other evidence of their crimes in their cars.

Not that it changes anything about your points. Cops are wrong whether its DWB or Driving While Looking like a Gangster that gets you pulled over.

[The Lonewacko Blog]

The L.A. Times (yeah, I know they're just a Tool of The Oppressor, but keep reading) ran a story a while back written by at least one Reporter of Color. They went out and interviewed Youths of Color about DWBorBorAorNAorAPIorInuit, and most of them said something like "as soon as I stopped dressing like a gangsta I stopped getting stopped so much."

[Jennifer]

"Maybe rich white guys get audited more often."

Nope. Remember about a year ago, the big brouhaha when the IRS admitted that poor taxpayers were statistically more likely to be audited than rich ones?

[Jennifer]

How about a simple law stating that if the cops pull you over, question you, ask for ID anything like that, and then it turns out you are NOT who they were looking for, they have you compensate you for your lost time at a rate of $20/hour? That should either reduce the number or Driving While Black incidents, or else make black people the richest ethnic group in America.

[Mo]

Lonewacko,
Since the way you dress is a form of expression, is it fair that they get pulled over/stopped more for expressing themselves? If there was vandalism in your area that said something to the extent of "Mexicans go home" and there was no evidence linking you to the crime. Would it be fair for them to investigate you simply because of your stated views?

[Anonymous]

How about getting pulled over because they are driving like assholes? Perhaps endangering those around them? Nah, that couldn't possibly be it. Does racism occur in the police department? Sure, but it doesn't mean that every black individual that is pulled over is being pulled over simply because they are black. Statistics like the one posited in this "study" don't ask the right questions, like, "Was the individual speeding at the time they got pulled over?" "Was the person evading capture?" "Did the individual match the description of someone wanted in a crime?" etc. No, the only relevant question in this study appears to be "What is your race?"

No one wants to talk about it, but hey, did anybody ever consider that perhaps minorities get pulled over more cause they are committing the alleged traffice violations? Oh wait, that would actually imply that cops aren't racist and that's not the point of this blog right?

[Mo]

Anonymous,
Usually when I'm on the freeway, there is no shortage of people driving like assholes. In fact I've been pulled over for speeding when there were cars driving as fast and some even faster than I am. I don't blame it on driving when brown.

But could you please explain to me why the proportion of black people arrested for drug related crimes is significantly higher than the proportion of black drug users relative to whites? Or are black people just more obvious when they do drugs?

[Andrew]

I recall reading Hunter Thopson's "The Hell's Angels" a long time ago. In an eary chapter he recounts how the CHP all but destroyed the Angels in the late 50's/early 60's by focussing lots of attention on them whenever they went on runs, and enforcing innumerable road stops and petty violations-- Angels disappeared from the roads and were drifting towards dissolution.

Then a more relaxed atmosphere emerged in the Summer of Love and the Angels blended for a while into the Youth culture. Today the Angels are a well-entrenched, Mafia-style gang, and a major target of the Feds.

Alas.

[Jennifer]

Andrew, the problem with you analogy is that all Hell's Angels are willing members of a criminal organization; all black people are not. Are you able to understand this distinction?

[Jennifer]

Andrew, there's a teensy-weensy problem with your analogy: all Hell's Angels are voluntary members of a criminal organization; all black people are not. Do you understand this distinction? Apparently the cops don't.

[Cranky Whitey]

I'd say outfitting your car with a 750 watt sound system and playing bass-heavy hip hop loud enough to knock down a tool shed would qualify as probable cause for arrest. Let's see...who fits that description...?

[Dink]

Jennifer,

So now you're posting your rough drafts?

[The Lonewacko Blog]

"Since the way you dress is a form of expression, is it fair that they get pulled over/stopped more for expressing themselves?"

Usually dressing in (real) gangsta clothing, sporting (real) gangsta tattoos, and making (real) gangsta hand signs are indicative of someone belonging to a youth violence gang. It's really not that difficult, you know? The cops in, say, the Rampart area know who the gangs are and they know who the gang members are. There's very little chance of them thinking someone is a gangsta when they aren't. That doesn't mean they might not falsely accuse someone, just that they do know the difference.

-- Lonewacko, representing the Rollin' 192.168 Blogger Crew and keepin' it real. Y'all.

[Jennifer]

Dink-
This fucking computer is out to get me! I press post, nothing happens, I press cancel, bring the comment page back up, re-write and re-submit, then every attempt of mine shows up at once.

[Mo]

Cranky Whitey,
Uhhh, sounds like teenagers with too much cash to waste. You do know that 70% of rap music is purchased by whites. Loud music is more indicative of youth, not ethnicity. When I hear loud bass, the driver of the car is equally likely to be a member of any race. In fact, the only time I can predict the race of the person driving the car with any sort of accuracy is if the music is in a language that isn't English (no, ebonics is not a damn language).

Lonewacko,
There's a difference between actual violent gang members and kids that dress like gangstas just because it's the fashion of the day. I have no problem with known violent gang members being harassed ala Andrew's Hell's Angels story. I do have a problem thinking a black kid w/ his hat turned sideways being pulled over because some gang members have that. I would also have a problem with white people w/ NRA bumper stickers being pulled over because militant militia groups also happen to have them too.

I started having a lot less faith in the police once one of my friends joined the force and I heard the stories.

[Andrew]

Hell Jennifer you may be right...

but I am thinking that the cops may be pulling over a lot of "gang cars"

In Tucson, where I lived for some years, large swathes of the city were regularly "patrolled" by carloads of latino gang-members-- their presence was genuinely intimidating...and cops began to make a regular target of them.

This almost certainly generated a statistical anomoly of inordinate police stops for latino drivers. But you could have revealed the "pattern" with only a little more statistical refinement-- young, multiple passengers, no kids.

A working latino father, driving home and hitting the 7-11 for some groceries and lotto tickets was not particularly likely to be hassled for a broken tail-light, or a lane-change w/o a signal.

The police "policy" was actually fairly popular with the community...although activists wouldn't admit it.

A cycle hobbyist with his kid in a side-car wasn't likely to get pulled over, either. Lots of cops a motor-cycle buffs.

[thoreau]

Lonewacko-

The Rampart precinct might not be the best example of judicious use of law enforcement resources. Perez & Co. were so sleazy that they managed to make Bill Clinton and George Bush look honest. (See, I was bipartisan in my politician-bashing! 🙂

Try another precinct and your point might make more sense.

[Matthew]

I've lost faith in the Supreme Court's decision to render proper decisions, at least for the most part. They've allowed institutionalized racism (U of M), defined "commerce" to mean virtually anything, created penumbras and emanations to achieve political ends, and criminalized political speech. I don't see a lot of hope.

[Mark Fox]

Anybody consider that the blacks (or coloreds as we like to call 'em) probably expect more grief from the pigs, and thus get into more confrontational situtations? If Jennifer is rollin' down St. Claude at 45mph, she can probably show the right respect (fealty) to John Law to avoid the citiation. DJ Snoopy, on the other hand, with an axe to grind, gets the ticket and his ride searched, maybe leading to a drug arrest.

Stephen: Your guess on the particulars of Hiibel smell right. But if he was engaged in an unlicensed activity (standing by or sitting in the passenger seat of a vehicle), it seems the state has no justification to ask for his ID. I expect there is precedent that gives the state such an intrusive power. This is a good time to examine that, as we find ourselves on another slippery slope, this one leading toward citizens being required to show ID for standing on the sidewalk.

[Chainsaw]

My organization, Hell's Angels Motorcycle Club, is a club, not a gang. Thanks for allowing me to make that clarification.

[Stephen Fetchet]

That article is a pile of bullshit.

I have worked cases involving statistical studies of what cops do in traffic stops. By and large, most cops are fair, and stop people on a more or less statistically representative basis. There is always a percentage of cops who are truly bad - and the clean cops' attitude toward them vacillates between amusement and looking forward to the bad cops' comeuppance, and horror, condemnation and anger when the bad cops' behavior gives the clean cops - the vast majority - a bad name. Statistically based studies "proving" racial profiling is a widespread problem in traffic stops have thus far been shamefully unsound, featuring poor deising, no controls, and lousy analysis. Maybe it is a widespread problem - but so far the studies tend to show that it's a local problem - many instances of bad events, but not a systematic, national police policy. The math simply doesn't support the activist's claims. (Believe me, if it did, there would be money there, and I would be on it like white on rice). Perhaps the popularity of the myth has something to do with most lawyers' distate for math problems; or the interest of many traditional civil rights groups in drumming up business, headlines and donations.

A good example of how bad math leads to bad public policy is the New Jersey State Troopers' case, in which a couple shady U-Penn studies were the basis for DOJ action to restructure the Department's operations. The troopers protested that they knew a few bad cops, but that most cops were making legit stops, without bias. A few squads were considering race, along with a number of other factors allegedly linked to high bulk drug traficking - Southern licence plates, rental cars, high speed. This is in accordance with the law as laid down by the Supreme Court under the 14th Amendment - law enforcement (outside of the federal government, by policy) can consider race as one factor in determining who can be stopped, under some circumstances). But most New Jersey cops argued they were neutral in their choice of stops, and never paid attention to race - an argument which was borne out in later studies.

But that doesn't matter. More importantly, the Penn studies used baselines that didn't correspond to the demographics of the drivers - and concluded that the cops were a bunch of racists. Nor did the Penn studies consider whether the drivers stopped were breaking the law, or how badly they were breaking the traffic law. Their only finding, when it boiled down to it, was that the proportion of minority drivers stopped was out of whack, compared to a baseline that didn't correspond to the demographics of the drivers on that portion of the NJ Turnpike.

The NJ state government knuckled under to the DOJ, and did everything in its power to reduce the number of Black drivers stopped, and bring it into line with the studies' irrelevant baselines.

Yet another study performed roughly a year later, made the controversial finding that Black drivers on the Turnpike were far and away the worst lawbreakers on that portion of the highway, comprising a disproportionate supermajority of drivers engaged in reckless driving (20 MPH over the limit). That study was not perfect, but it was sufficient to demonstrate that, had the U-Penn studies been baselined on actual drivers engaged in serious breaches of the traffic code in that section of the Turnpike, that most of the Troopers would have been found to be relatively fair, with respect to race, in their traffic stops.

As for this Hiibel case, Mr. Hiibel is not the clean-as-the-driven-snow libertarian saint he is made out to be. Nevada police were called to the scene of a domestic dispute - a man was hitting a woman in a truck. He was alleged to be trying to get her out of the truck, so he could drive drunk. The police showed up, and there was a slightly tanked Mr. Hiibel, standing next to a pickup truck, with his daughter (bruised up) sitting inside the truck.

Again, having worked around criminal law a bit, I'm pretty clear on what happened. The daughter declined to press charges, Mr. Hiibel wasn't actually driving the truck while intoxicated... so the prosecutor and cops reached for the next nearest thing, the Nevada statute that requires persons stopped in a police investigative stop to produce ID. So, since the stop was valid, and the guy was probably bashing his daughter's face in just before the cops rolled up - they did the next best thing to an assault charge, and tried to nail him for some minor violation, to send a message that they didn't want him driving drunk or beating his daughter. This isn't pretty, but I'd submit to you that it is an approximation of justice.

And I know we all have our panties in a wad about this issue, but really, there are much bigger civil liberties problems that we ought to be worried about right now. This particular type of stop contemplated by Nevada is the "Terry stop", which requires police to have some reasonable suspicion that criminal mischief is afoot. It does not permit cops to just walk up to you on the street, and demand you produce ID and stick around to answer questions. The doctrines relating to most aspects of the stop are well established in Constitutional law.

So the question is a lot narrower than "can the cops walk up to you and demand ID?" It's more like "if you are stopped based on reasonable suspicion, can the cops demand you identify yourself, or produce ID?"

I am worried about the creeping infringement of Terry stops on the general presumption of liberty - that "reasonable suspicion" standard is awfully watery. But as for the demanding you ID yourself part, if there really is reasonable suspicion (and not just a trumped up excuse to stop you) then I don't see the ID issue as the screaming civil liberties problems that a lot of activists do.

Personally, I'd be more worried about Louisiana's statutory attempt to vastly expand the exigent circumstances exception to the 4th Amendment warrant requirement. (Incorrectly referred to by commenters in these parts ass the 5th Circuit's vetoing of the 4th Amendment.)