"I Suppose You Legally Have a Right Not to Give Your ID [to Police],"

"but then you probably are making a judgment call that you need to let a judge make"—reasoning from a New Mexico trial court judge, recently reversed by an appellate court.

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From City of Las Cruces v. Flores (N.M. Ct. App.), decided Mar. 11 but only posted on Westlaw this week:

Defendant was charged under the LCMC [Las Cruces Municipal Code] for the offenses of evading an officer and concealing identity.

The evidence presented below is undisputed. The trial testimony established that two officers were in Defendant's neighborhood investigating a report of a stolen car. Defendant, apparently believing the officers were attempting to catch and ticket traffic violators just to generate revenue, recorded the officers on his cell phone and yelled that they were wasting taxpayer dollars and should go collect revenue elsewhere.

At some point, Defendant's neighbor came outside and spoke with one officer while the other officer remained with Defendant. The neighbor stated that he came outside because he heard his dogs barking, not due to Defendant's yelling. The neighbor testified that he saw Defendant holding up his cell phone like he was recording the officers and verbally criticizing the police about his belief that police waste taxpayer money. The neighbor told the officer that Defendant was not bothering him but said that Defendant was "always yelling." He further testified that Defendant was talking in a "high tone of voice" and in an excited, but not agitated, manner. There were no complaints from other neighbors.

Following his conversation with the neighbor, the officer approached Defendant, who was standing with another officer, and asked him for identification. Defendant turned his phone toward the approaching officer, held up his other hand in a gesture to stop and told the officer "step back." As the officer continued to approach, Defendant said "stay away from me." The officer told Defendant "if you keep yelling and you keep screaming, and you keep causing people to come outside, you will be arrested for disorderly conduct."

The officers repeatedly demanded Defendant provide his identification. Defendant responded, "I don't need to identify myself to you, because I have not committed [a] crime." One of the officers replied, "The crime is disorderly conduct." According to the officers, Defendant was obstreperous with them, denied their repeated request to produce identification, and ultimately started to walk away into his yard.

The officers ran after Defendant and once in Defendant's yard, pushed Defendant to his knees, tased him, and pepper sprayed his face. Defendant was handcuffed and arrested. Following a bench trial, Defendant was convicted of two counts of resisting, evading or obstructing an officer and one count of concealing identity. Defendant now appeals….

{Because we conclude that the officers were without reasonable suspicion to detain Defendant, we need not address Defendant's argument that his conduct was protected by the First Amendment.}

[A.] Reasonable Suspicion as an Element of the Charges

Like its state statute counterpart, one of the essential elements of the LCMC crime for evading an officer is that "the person committing the act of … evasion has knowledge that the officer is attempting to apprehend or arrest him[.]" Our Supreme Court in State v. Gutierrez, stated that the definition of "apprehend" in Section 30-22-1(B) means a "seizure[ ] in the name of the law" and equated such an apprehension "to include a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion." Hence, our Supreme Court concluded that the presence of reasonable suspicion is crucial to a determination of sufficiency of the evidence for evading and eluding an officer because if the detaining officer lacked reasonable suspicion then he also lacked the legal authority to detain the defendant.

Further, like the state statute, one of the elements of concealing identity pursuant to Las Cruces, N.M., Code of Ordinances, art. I, Section 19-4 requires proof that the officer is acting "in a legal performance of his duty." In Ortiz, this Court recognized well-established law that "[a]n officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment." Reasonable suspicion is required for such a seizure. Consequently, we held that absent reasonable suspicion to detain, the seizure of the defendant was unlawful, and the prosecution failed to prove that the officer was in the legal performance of her duty…..

[B.] The Officers' Lacked Reasonable Suspicion to Detain Defendant …

The district court—apparently without regard to the neighbor's testimony—concluded that the officers had reasonable suspicion to investigate disorderly conduct based on the fact that Defendant loudly criticized police. Disorderly conduct consists of: "[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace[.]"Conduct is not criminal, or suspicious, simply because it is boisterous or unreasonably loud; the conduct must also tend to disturb the peace.

This is particularly true when the conduct at issue is comprised of words alone. New Mexico courts have criminalized only limited classes of speech: "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

The public's sensibilities are tough enough that, typically, the act of yelling alone does not shatter public order or threaten to do so. Although the Legislature has not specifically defined "conduct that tends to disturb the peace," our Supreme Court has implicitly defined it as "a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." Our Supreme Court has instructed that we construe the disorderly conduct statute narrowly, and "unless the acts [that are alleged] fall clearly within the statute, they are not disorderly.

In its ruling that Defendant's conduct toward the officers provided reasonable suspicion to investigate disorderly conduct, the district court explained:

"[Y]ou're not allowed to be so boisterous and so loud to police officers, and accusing, and threatening—I think that was the disorderly conduct. When police officers approach us and want to investigate something, it's "yes" or "no, sir", or somebody can end up dead. … When a police officer approaches you and asks you for ID, you give it to them. That's the way that goes. Now if you're just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make."

Contrary to the district court's reasoning, our Supreme Court and this Court have applied the rule that in most instances "arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior." Merely yelling obscenities at an officer, without more, does not create reasonable suspicion to investigate or probable cause to arrest for disorderly conduct. {Although the district judge implied that Defendant's conduct was accusing and threatening, our review of the record and lapel tape is devoid of evidence that Defendant by word or action made any threats to the officers and neither party has asserted on appeal that Defendant's criticisms of the officers were threatening.}

"Police officers, by nature of their training, are generally expected to have a higher tolerance for offensive conduct and language." … "We are not indifferent to the officers in the case." These officers play an invaluable role in serving and protecting our community, and unfortunately, they are often subjected, as they were here, to ill-advised behavior. "However, it is because of their degree of skill, training, and experience that we rely on officers," not only to complete their duties, but "not to react to verbal provocation, at the risk of escalating a situation rife with conflict."

Without evidence of anything more than Defendant's loud remarks and cell phone recording of the officers, all of which occurred in their presence, the testimony did not give rise to an objectively reasonable suspicion that Defendant had committed or was committing the crime of disorderly conduct…. "New Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language…."

We next address the City's argument that, even in the absence of reasonable suspicion to investigate disorderly conduct, Defendant's repeated refusal to produce identification or, following this refusal, to respond to officer commands not to walk away justified Defendant's detention and arrest. While the City is correct that officers "do not need justification to approach a person and ask that person questions," this is true only so long as the person remains free to leave and is not required to answer their questions. "[A] person has the constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants to question the person[.]"A defendant who flees a seizure that is unsupported by reasonable suspicion cannot be punished for exercising his right to end the encounter and walk away. In sum, the officers did not have reasonable suspicion to detain Defendant and demand his identification….

Lastly, to the extent the City argues that it was reasonable for the officers to detain defendant to investigate his yelling and whether he was disturbing the tranquility of the community, we disagree. The evidence does not support a conclusion that it was reasonable for the officers to investigate Defendant's conduct as tending to cause "consternation and alarm."

Our review of the record does not reveal, nor does the City point to, any threatening behavior or violent conduct accompanying Defendant's verbal criticisms and cell phone recording of the officers. Additionally, the record does not reflect that Defendant's behavior toward the officers tended to have any effect on others at all, let alone that it rose to the level of tending to cause "alarm" amongst his neighbors.

While the testimony established that a neighbor came out of his home during the encounter between officers and Defendant, Defendant was not the reason that the neighbor came outside. The officers' testimony did not articulate any objective facts which would establish that Defendant's conduct tended to disturb the peace. Indeed, the record is void of any evidence that Defendant's yelling and cell-phone recording annoyed or bothered anyone other than the officers….

[T]here must be evidence that those who heard a defendant's remarks were negatively affected by or reacted to the statements in order to show that remarks were likely to incite listeners to breach the peace because "[t]o hold otherwise would be to allow police routinely to add disorderly conduct charges to any underlying charges because it is not uncommon for those being arrested to become belligerent and for crowds to gather at the sight of an arrest[.]" … Without more, Defendant's loud criticism of the police and his act of recording them on his cell phone were not enough to provide an objectively reasonable suspicion to investigate Defendant for disturbing the tranquility of the community.

Absent reasonable suspicion establishing the officers' legal authority to detain Defendant, there was insufficient evidence to support Defendant's convictions for evading arrest and concealing identity. Accordingly, we do not address the remaining elements of the charges.

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  1. The link in the first line is broken.

    My dad, a defense attorney for over 60 years, always told me that it was such a beautiful thing that we lived in a country where an ordinary civilian could yell at cops and not be charged with a crime for doing so. It would appear that the higher court agrees.

    At the same time I think that a majority of us (including me) would like to back up the oridnary, non-corrupt and non-hostile police officer. They deal with a-holes so we don’t have to. They deal with the mentally damaged among us so we don’t have to. Knowing who people are in the community is part of their job.

    Although I think the decision was correct (with the facts stated) I just hope that the police officers involved don’t become discouraged by it.

    1. Cops have become authoritarian assholes who think every civilian is a criminal, and their job is to uncover whatever hidden criminality has kept them out of jail. The number one crime any undiscovered criminal can commit is disrespecting their authority.

      The problem with this attitude is that any slight, the barest insult, eats at them and aggravates their attitude.

      Imagine a world where cops actually thought most civilians were honest people who wanted to do the right thing, and that being slighted by civilians was not the end of the world, where unless they had actual reasonable suspicion, they’d rather just wave at people, say hello, ask how they’re doing, and whistle on their way. They wouldn’t take their frustrations it being disrespected home with them and beat up their kids and spouse, they wouldn’t be alcoholics as a way of coping, they’d just be actual nice people, and civilians who met them on the job wouldn’t have a learned instinct to avoid the sons of bitches.

      Yeah, never happen as long as they have no accountability.

      1. It sure sounds like you were raised as a white person.

        1. “It sure sounds like you were raised as a white person.”

          Nice bit of virtue signalling there. Typically people comment here to advance the conversation, flesh out nuances, etc. Not the reverend of course, but most. You might try it sometime.

          Not all cops act the same, but there are definitely some who’s egos are unnaturally inflated by the power of the badge and gun. It would be nice if the majority did in fact as if they were there to support the citizenry. So I’m struggling to understand what was so objectionable in his comment.

          For what it’s worth, anti-white snarkery doesn’t carry much rhetorical weight. I mean, you can continue to indulge but don’t be surprised if no one finds it persuasive.

          Cheers.

    2. They should have ignored him — and I know a lot who would have. (My guess is they asked the neighbor his name, and ran it for outstanding warrants.)

      And what bothers me is that they physically assaulted him, arrested him, and forced him to pay a bleepload of money on attorneys — with impunity. What is the punishment on the cops?

      At least in Massachusetts, they’d been paid much-coveted overtime (four hours minimum) for each and every time they had to show up in court regarding this. That’s a reward, not punishment….

      What’s to prevent them from doing something similar to the next person???

      1. “And what bothers me is that they physically assaulted him, arrested him, and forced him to pay a bleepload of money on attorneys — with impunity. What is the punishment on the cops?”

        Presumably, he can get at least one attorney interested in doing the paperwork for a civil rights lawsuit now If the attorney who takes it on is very good, he might even win it.

        1. Which still wouldn’t constitute punishment on the cops since they’ll be indemnified by their department.

    3. Personally, based on the facts stated, I do hope that the police officers involved become discouraged by this decision. I reach this conclusion because the facts stated suggest that those particular cops were not the “ordinary, non-corrupt and non-hostile” police officers you (and I) want to support. Based on the facts presented, these cops were authoritarian jerks who should not be trusted with police powers and who should be looking for some other job.

    4. “My dad, a defense attorney for over 60 years, always told me that it was such a beautiful thing that we lived in a country where an ordinary civilian could yell at cops and not be charged with a crime for doing so.”

      Day after day, it hits me how this is an all-white blog with all-white commenters.

      1. take your whiney racism elsewhere. It does nothing good.

        Or would you rather these coppers got treated like so many do in CHicago or Baltimore…. get shot at, beat up, etc. After a while they just quit going into “those places” to stay alive. Fair enough.

        But in a city like Las Cruces, one would think life would be more normal than Chi Town or Balto. Maybe yuo wish Las Cruces would BE ore like Chicago in that regard?

        Bottom line, you have ZERO basis for your racism claim. Ditch it.

        1. Can you imagine a black dad saying such a thing to his son? If not, why not?

      2. This is a Republican blog. You expected something other than strikingly white and against-all-odds male?

    5. Orbital Mechanic: Thanks for pointing out the broken link — fixed it.

  2. Did the court actually write “I guess”, “you know”, and “I suppose” in some hoity toity formal opinion?

    1. It was a good opinion, sort of.

    2. I think you kinda have some liberties. Don’t forget to pay your taxes!

    3. I would imagine it was an oral ruling.

  3. Is this decision an invitation to sue under Section 1983?

  4. You have to issue the citation so that you can find out what’s in it.

    1. A clear and obvious case of contempt-of-cop. Just because you legally can, technically, spend your day yelling that the cops are lazy, corrup SOBs doesn’t make it a good idea to do it.

  5. Properly trained officers operate in pairs, so that one can yell “freeze! Don’t move!” and the other can yell “Get on the ground! Put your hands behind your head!”.
    That way you are certain to be “non-compliant” and justify as much violence and the magic eight ball calls for that day.

  6. “[Y]ou’re not allowed to be so boisterous and so loud to police officers, and accusing, and threatening—I think that was the disorderly conduct. When police officers approach us and want to investigate something, it’s “yes” or “no, sir”, or somebody can end up dead. … When a police officer approaches you and asks you for ID, you give it to them. That’s the way that goes. Now if you’re just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make.”

    Let me take a wild guess what this judge did for a living before being appointed to the bench.

  7. When police officers approach us and want to investigate something, it’s “yes” or “no, sir”, or somebody can end up dead. … When a police officer approaches you and asks you for ID, you give it to them. That’s the way that goes. Now if you’re just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make.

    ^^^This

    Above is what parents should tell their children. I have told my sons exactly this, multiple times, so it really sinks in. Just save it for the judge.

    1. But when the judge doesn’t do anything?????

      1. That is the prerogative of the Judge.

    2. Better yet.. how’s about the coppers leave that chip riding on their shoulders back home. It has NO PLACE out on the beat. Worst town I’ve ever been in as far as nasty coppers is Portland Oregon. Several times they have accosted me for nothing, or some situation into whcih THEY forced me (running me off the road, me on a road bike, they in their unmarked patrol car) or stopping me for an imagined/falsey claimed non-functioning headlamp…. both times, deliberatly provoking me to respond with violence (I actually HEARD two of them bragging about how they are trying to get me to “go off on them”. cold winter nght, my window still open, all six of them ((musta been a slow night) playing Pigs I could hear them easily.. forewarned, I REFUSED to take their bait, stood my ground, waited as they detained me well over half an hour. After they left I got out and took a set of photos date time stamped to prove all headlamps were working. Dirty copper never bothered to show up in court, so judge dismissed. A lesser man, or one in weaker control of his emotioins/pride, would have obliged them, and very possibley gotten himself shot,,,,, as happened a few times right about that time.
      I avoid PPB at all cost. Drive squeakey clean when I’m in that stinking town. These are the same dirty coppers that stood and watched as a news cameraman was moved against by a mob of HUGE antifa goons with weapons, surrounded, threatened, and pulled his concealed handgun to hold them off as he made his escape…. never fired, reholstered, and left the area. Cops caught up wiht him, busted him for felony endangering lives, ignored his claim of self-defense…. as soon as they stopped advancing on him as he retreated, he reholstered. Local city court upheld the charges, now on appeal. But PPB seemed to appreciate that the antifa were closing in on this guy as they clearly spoke VERY threatening words….. PPB were fine with that, Two of the bigger goons actually assaulted the guy, but that did not matter to the copper,s who saw it clearly.

    3. “The only thing necessary for the triumph of evil is for good men to do nothing.”

      Police are not the only ones called to put their lives on the line in defense of our society. The rest of us have an obligation to stand up to and correct abuse and tyranny even at risk of our lives. I accept that not everyone will accept that responsibility. And it’s not necessary that everyone do just like it’s not necessary for everyone to be a policeman or fireman.

      I would be terrified if my sons stood up to a corrupt cop – and incredibly proud of them for doing it.

    4. Above is what parents should tell their children. I have told my sons exactly this, multiple times, so it really sinks in. Just save it for the judge.

      If you had a daughter, would you tell her that if someone grabs her in an alley, she should just give in without protest, and she can report the sexual assault later?

      1. No, see. As the appellate court pointed out, it isn’t. The little speech might be a good idea for a parent to tell their child as a pragmatic solution to power-drunk police officers. It might even be good advice by a judge to people in some forum other than the judge being asked to make that judgment call and, obviously, getting it wrong. He was at that time being asked to make that judgment call and he got it wrong, very likely because he was focused on whether the defendant acted in a way the judge thought was appropriate and wise. But that wasn’t the question. The question was whether the police could tackle, tase, and arrest the defendant for questioning whether the police were acting inappropriately and exercising his right not to give ID and not to submit to questioning when he had not committed any crime.

        It is disturbing that you don’t get this. But it is magnitudes worse that the judge didn’t get this. Presumably, he is a big fan of Judge Judy-style lecturing. Instead, he should just apply the law. Sometimes jerky citizens get to be jerks. However, it is a police officer’s job not to be a jerk and to tolerate jerks. That’s what they get paid for, it’s why we trust them with guns and tasers.

      2. Not sure why my comment posted here. I agree completely with you David.

        “Just save it for the judge.”

        You are going to file a lawsuit alleging that a police officer asked for your ID and you gave it to him and…..what? You think this judge is going to vindicate your rights on this? With a favorable ruling? And, what, $0.50 in Section 1983 damages? Be serious.

        1. Thanks for the clarification; I was wondering what I had said to elicit that response from you.

  8. My and my neighbouring states do not REQUIRE providing physical ID unless driving or carrying a weapon, in which case appropriate license is required when asked for by law. On a bicycle, they can ask, and I can decline, to produce my driving license. They don’t like it, but I tell them their state law does not REQUIRE I produce physical ID. I will identify myself, however…. and do when they realise I do know what I am talking about . Nor am I required to inform them when I am carrying a firearm. If THEY ASK, on their initiative then must produce and surrender the requieist Mother May I Card. In my state, this guy would have been fully within his rights in declining to produce physical ID as he was on foot. Maybe NM are differend…… but what about those tho simply are not doing anything to REQUIRE a government permissioin slip…. can they be out in pubilc without it if not driving or obvisouly armed?

    1. You mean like if he wanted to cast a ballot, or something?

  9. “I Suppose You Legally Have a Right Not to Give Your ID [to Police],”
    Very true, but you will probably be handcuffed, and taken to jail at the business end of a gun. Then spend a lot of time and money in court, just to prove you were correct. The cops know that, and they know that is why most people will give them their identification.

  10. Acquire the heightened sensibilities of a legally armed citizen.

    You may beat the rap but you WILL NOT beat the ‘ride’.

  11. “…Defendant was obstreperous with them…”

    Is that the new “furtive movement?”

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