HB 1049: Mandatory self-identification

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http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB1049

Full Text

Mandatory self-identification. Provides that any person, when he is lawfully detained by a law-enforcement officer under circumstances that reasonably indicate that the person has committed, is committing, or is about to commit a crime, and is requested by the officer to identify himself, shall do so. Any such person who refuses to identify himself is guilty of a Class 1 misdemeanor.


Interestingly, the new portion requires the LEO to explain to the subject "the reason why he is being detained and questioned". That part might be new!

TFred

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TFred wrote:

http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB1049

Full Text

Mandatory self-identification. Provides that any person, when he is lawfully detained by a law-enforcement officer under circumstances that reasonably indicate that the person has committed, is committing, or is about to commit a crime, and is requested by the officer to identify himself, shall do so. Any such person who refuses to identify himself is guilty of a Class 1 misdemeanor.


Interestingly, the new portion requires the LEO to explain to the subject "the reason why he is being detained and questioned". That part might be new!

TFred

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A class one misdemeanor:uhoh:..

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This needs to be slapped down hard!

We do not have a stop-and-identify statute at the state level. We do not need one.

And even if some politician who wanted police support for political reasons at the expense of what is left of Rights couldwrongly persuade others that it was justified,we damned sure don't need a statutethat is a freaking Class One misdemeanor.

I hope Mike and the Fairfax Co Privacy Council are on this.



The effect of this heavily onerous because no citizen will be able to know for sure whether the LEO has genuine RAS for detention. Deciding whether RAS exists is in the court's realm, which means it cannot be decided until after the detention. If the citizen, during the detention, guesses wrong about whether the cop has genuine RAS and refuses to identify, the citizen is in trouble. And, even if the citizen is right, it isn't going to get sorted out until he goes to trial on the Class One misdemeanor charge for failing to identify. You know the police are going to charge it, thinking they have RAS, or willing to push the envelope, or just using the old "arrest him, let the judge sort it out" approach.

The upshot is that everybody will have to identify themselves to the cops just to play it safe.The only recourse will be "charges dropped"or a 5A (right against self-incrimination) lawsuit for a rights violation if the cops don't charge the failure to identify. And we know how many people can afford to follow up witha lawsuit just to win next to nothing.

This is tantamount, literally, to saying everyone--every single person--has to identify themselves to an LEO upon request.

Bad, bad, bad, bad idea, fellas. We need to get this one batted down hard.

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Citizen wrote:

This needs to be slapped down hard!

We do not have a stop-and-identify statute at the state level. We do not need one.

And even if some politician who wanted police support for political reasons at the expense of what is left of Rights couldwrongly persuade others that it was justified,we damned sure don't need a statutethat is a freaking Class One misdemeanor.

I hope Mike and the Fairfax Co Privacy Council are on this.



The effect of this heavily onerous because no citizen will be able to know for sure whether the LEO has genuine RAS for detention. Deciding whether RAS exists is in the court's realm, which means it cannot be decided until after the detention. If the citizen, during the detention, guesses wrong about whether the cop has genuine RAS and refuses to identify, the citizen is in trouble. And, even if the citizen is right, it isn't going to get sorted out until he goes to trial on the Class One misdemeanor charge for failing to identify. You know the police are going to charge it, thinking they have RAS, or willing to push the envelope, or just using the old "arrest him, let the judge sort it out" approach.

The upshot is that everybody will have to identify themselves to the cops just to play it safe.The only recourse will be "charges dropped"or a 5A (right against self-incrimination) lawsuit for a rights violation if the cops don't charge the failure to identify. And we know how many people can afford to follow up witha lawsuit just to win next to nothing.

This is tantamount, literally, to saying everyone--every single person--has to identify themselves to an LEO upon request.

Bad, bad, bad, bad idea, fellas. We need to get this one batted down hard.

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Please read the full text. This is not a stop and identify law, and it specifically requires the LEO to explain to the subject why they are being detained and questioned.

I really thought this was already in place, perhaps the penalty has been changed.

TFred

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TFred wrote:

Citizen wrote:

SNIP This needs to be slapped down hard!

We do not have a stop-and-identify statute at the state level. We do not need one.

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Please read the full text. This is not a stop and identify law, and it specifically requires the LEO to explain to the subject why they are being detained and questioned.

I really thought this was already in place, perhaps the penalty has been changed.

TFred

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Thanks. I did go back and read the full text, something I omitted the first time, taking the link to be the text. So much for skimming a post and hitting the link without reading the rest carefully.

Oh, yes. It is a dyed-in-the-wool stop-and-identify statute. It has all the elements required by Hiibel. As affected by Kolender.

No requirement to show an ID document (Kolender).

Cop has to have RAS (Hiibel). (This is the "stop" part).

Must identify, or penalty applies. (Ruled constitutional by US Supreme Court in Hiibel.)

The only difference is that the subject billrequires the LEO to declare the detention (implied) and give the reason--something not required under Hiibel as I recall.

And, as a Class 1 misdemeanor it would carry up to what? A $2500 fine and/or up toone year in jail? For freakin' exercising your pre-Hiibel 5A right to silence?

Wanta bet that part about theLEO explanations to the detainee gets deleted somewhere along the process? There's no way cops are going towillingly give up their "permissible deception", meaning theirability to legally lie or mislead a suspect. That or they are going to get real sneaky and do all their misleading and deceiving early in thedetention and not demand ID until late when the declarations have to be made.

Y'all are looking at a genuine attempted erosion of your existing 5A right to silence in VA. There are apparently some local jurisdictions that have stop-and-identify ordinances; but we have had nothing at the state level.

Remember what happened to forum memberTheseus in California. He was stopped and identified. They let him go after the detention, but later, since they knew who he was, when they decided they wantedtotwist the law about "public place" they went after him. The court agreed to twist the law on the meaning of "public place". He is in the appealsprocessnow. The unbelieveable irony is that the next to last sentence of Hiibel actually foresaw exactly what happened to Theseus. Also,if they had not been able to identify him, they wouldn’t have been able to go after him later once they looked up the law and figured out a way to twist the law.It was the damned identifying that made his wholemess possible.

This absolutely has to be stopped.



Hiibel v 6th Judicial District Court:

http://www.law.cornell.edu/supct/html/03-5554.ZO.html

Kolender v Lawson:

http://supreme.justia.com/us/461/352/case.html

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Citizen wrote:

TFred wrote:

Citizen wrote:

SNIP This needs to be slapped down hard!

We do not have a stop-and-identify statute at the state level. We do not need one.

Click to expand...

Please read the full text. This is not a stop and identify law, and it specifically requires the LEO to explain to the subject why they are being detained and questioned.

I really thought this was already in place, perhaps the penalty has been changed.

TFred

Click to expand...

Thanks. I did go back and read the full text, something I omitted the first time, taking the link to be the text. So much for skimming a post and hitting the link without reading the rest carefully.

Oh, yes. It is a dyed-in-the-wool stop-and-identify statute. It has all the elements required by Hiibel. As affected by Kolender.

No requirement to show an ID document (Kolender).

Cop has to have RAS (Hiibel).

Must identify, or penalty applies. (Ruled constitutional by US Supreme Court in Hiibel.)

The only difference is that the subject billrequires the LEO to declare the detention (implied) and give the reason--something not required under Hiibel as I recall.

And, as a Class 1 misdemeanor it would carry up to what? A $2500 fine and/or up toone year in jail? For freakin' exercising your pre-Hiibel 5A right to silence?

Wanta bet that part about theLEO explanations to the detainee gets deleted somewhere along the process? There's no way cops are going towillingly give up their "permissible deception", meaning theirability to legally lie or mislead a suspect. That or they are going to get real sneaky and do all their misleading and deceiving early in thedetention and not demand ID until late when the declarations have to be made.

Y'all are looking at a genuine attempted erosion of your existing 5A right to silence in VA. There are apparently some local jurisdictions that have stop-and-identify ordinances; but we have had nothing at the state level.

Remember what happened to forum memberTheseus in California. He was stopped and identified. They let him go after the detention, but later, since they knew who he was, when they decided they wantedtotwist the law about "public place" they went after him. The court agreed to twist the law on the meaning of "public place". He is in the appealsprocessnow. The unbelieveable irony is that the next to last sentence of Hiibel actually foresaw exactly what happened to Theseus.

This absolutely has to be stopped.



Hiibel v 6th Judicial District Court:

http://www.law.cornell.edu/supct/html/03-5554.ZO.html

Kolender v Lawson:

http://supreme.justia.com/us/461/352/case.html

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Unfortunately, you hit it dead on Citizen. Quite frankly, looking at a session I had high hopes for, far too much of the introduced legislation so far needs to be "Slapped Down" rather than supported.

To make it worse, generally the bills I am involved with are much different than ones that concern NOVA, with gun issues being the only common thread. This year even the majority of the weapons and civil rights bills are not in our best interest.

This may be a disappointing year for everyone.

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Citizen wrote:

Y'all are looking at a genuine attempted erosion of your existing 5A right to silence in VA.  There are apparently some local jurisdictions that have stop-and-identify ordinances; but we have had nothing at the state level.

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I really hope this gets put down, its ridiculous.

Do you have any Idea where I could find info on the localities that do have a stop and identify law? I live in Richmond and hope it does not, and just assumed that because the state didnt, Richmond did not.

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peter nap wrote:

SNIP Unfortunately, you hit it dead on Citizen.

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Thank you for the validation. It is not that I am some speedy legal analyst. It is that I have been over this territory before from the OCer's point of view with regard to RAS.

Thedeck is really stacked against a citizen when it comes to his making decisions based on whether the cop has RAS. Just a few off the top of my head:

1. The courts have reserved determining RAS to themselves. This means, among other things perhaps, that if you want to refuse to identify yourself:

2. You have to know all the little sets of circumstances that courts have already ruled amount to RAS.

3. If your set of circumstances hasn't already been ruled on, you have to guess what the judge you will face might rule.

4. Have to understand whether the courts will allow the LEO to draw reasonable inferences from the circumstances and evaluate them in the light of his experience as a cop. (I know, I just can't cite, thus I have to make it conditional.)

5. If the answer to #4 is a yes, then the citizen has to know whether any given circumstance has some connection to crime. For example, driving slowly through a high-burglary neighborhood might be RAS for a stop against a possible burglar casing the neighbor for his next job. The point being there might be dozens of little things criminals do that honest people also do that an LEO might evaluate as indicative of possible crime where a court might agree with him.

6. You have to get all your guesses exactly right, or you are open to a failure-to-identify charge and the penalties for the worst class of misdemeanor.

And even if you guess right, but the cop doesn't know it at the time, you get to defend yourself against the failure-to-identify charge in court, hoping the judge willrule the cop did not have genuine RAS.

Nope. No way. I am totally, completely, utterly opposed to this bill.

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frenchdl wrote:

Citizen wrote:

Y'all are looking at a genuine attempted erosion of your existing 5A right to silence in VA. There are apparently some local jurisdictions that have stop-and-identify ordinances; but we have had nothing at the state level.

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I really hope this gets put down, its ridiculous.

Do you have any Idea where I could find info on the localities that do have a stop and identify law? I live in Richmond and hope it does not, and just assumed that because the state didnt, Richmond did not.

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I don't want to go too far off on a tangent about which localities do or don't.

You might check the website (MuniCode?) about the jurisdictions that interest you. I vaguely recall that a city on the coast does (Norfolk?, VA Beach?). And I vaguely recall that Arlington County might.

If anyone has hard info on others please start a new thread or PM one another.

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The part that confuses me is "lawfully detained". I have been properly (at least I think properly) brainwashed by my reading here to quickly pull out the "Am I free to go?" line, as soon as any encounter even begins to smell like it is turning against my favor.

According to my understanding, if the answer to that question is "yes", then I am not lawfully detained, and therefore would not be subject to this requirement. And again as I understood it, if the answer was "no" as in I am not free to go, I thought I was already required to identify myself at that point.

I don't doubt your assessment that this is a bad bill, I just wanted to explain why I am confused.

And now that you have articulated it, I would agree that a Class 1 misdemeanor does seem rather harsh.

TFred

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TFred wrote:

SNIP As I understood it, if the answer was "no" as in I am not free to go, I thought I was already required to identify myself at that point.

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There is no state stop-and-identify statute.

You may have picked up that impression from a local stop-and-identify ordinance where you live? Some cop, teacher,or TV show?

Maybe a confusion over Hiibel? Just in case: Hiibel does not require a person toidentify, it merely says that a state stop-and-identify statute that meets certain criteria is not unconstitutional. Somethingwith which I completely disagree. Just read the dissent in Hiibel.

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Citizen wrote:

TFred wrote:

SNIP As I understood it, if the answer was "no" as in I am not free to go, I thought I was already required to identify myself at that point.

Click to expand...

There is no state stop-and-identify statute.

You may have picked up that impression from a local stop-and-identify ordinance where you live? Some cop, teacher,or TV show?

Maybe a confusion over Hiibel? Just in case: Hiibel does not require a person toidentify, it merely says that a state stop-and-identify statute that meets certain criteria is not unconstitutional. Somethingwith which I completely disagree. Just read the dissent in Hiibel.

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No, that's not it, but maybe I am merging "lawfully detained" with "arrested." I was under the impression that at some point you are required to identify yourself - at least to state your name and address, if not provide actual ID.

Again, the difference to me here is whether or not you are "lawfully detained." I see a big difference between "lets go see who that schmuck is over there minding his own business" and "lets see who this person is that I have just stopped for .... whatever (presumably legitimate) reason."

I think I have a pretty good understanding of "stop and identify" meaning that a LEO can arbitrarily (meaning for no reason) stop you and demand your ID. I know that is not authorized on the state level, and I do recall a few months ago when we made a bit of an effort to figure out which local jurisdictions might have an ordinance on the books, but that effort never produced any results.

TFred

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TFred wrote:

SNIP I think I have a pretty good understanding of "stop and identify" meaning that a LEO can arbitrarily (meaning for no reason) stop you and demand your ID.

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It means "stop and identify" within the context of the law, as compared to doing something outside the law. It necessarily must mean that, or a whole bunch of police have been admitting to rights violations.

"Stop" refers to detention/seizure/Terry stop, and probably is a shortened version of "Terry Stop" just the same way other two-word terms get shortened to just one and everybodystill understands what is meant. All stops restricted by the 4A prohibitions against unreasonable seizure (of the person) as interpreted and modified bycourt decisions.

"Identify" refersobviously to identifying the detainee. Formerly restricted by 5A prohibitions against being compelled to incriminate oneself.A protection diminished by Hiibel. Yet, partially stillprotected by Kolender's prohibition on requiring an identity document. However, I've seen at least one state statute that authorizes a cop to demand an ID document, if the person has one--a nastyway of getting around the actual wording of Kolender.

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TFred wrote:

No, that's not it, but maybe I am merging "lawfully detained" with "arrested."

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I understand.

Just to comment on something you said, independent of the current discussion. I know of no law in VA that requires an arrestee to identify himself. Doesn't mean there ain't one. Just haven't come across it, yet. However, I imagine that the search-incident-to-arrest will usually turn up something if you are not "sterile" regarding carrying papers or documents (wallet stuff, etc) with your name on it.

I recall reading a court opinion, maybe Hiibel, where the opinion discussed a court needing to know the defendant's name. I thought that was a joke. The government has the body. They don't need the name. They can sentence an anonymous person and imprison him just as easy as if they know his name. They can hold the anonymous person a few days until his arraignment. No reason they couldn't skip bail (since the court wouldn't know who to name on the warrant to collect up a bail jumper), and hold him 'til trial. As long as they have control over his body, he ain't going anywhere--name, no name, or even wrong name.

The most important reason, from a freedom standpoint, for knowing who is arrested, is so the rest of society knows which citizen is caught in the jaws of Leviathan. But, even then, it is a matter wheregovernmentshould becompelled to report who is held (no secret detentions, trials, imprisonments--no disappeareds);not the arrestee being compelled to reportwhohe is.

I'm sure legal scholars can well explain from a law-enforcement perspectivemany reasons why an arrestee should be identified. I'm just commenting that the one's I've heard or read so far didn't hold water.

I'm convinced the government has thisfixation on being able to identify people so they can control them. If they have your name, they can track you down, compare you to lists, etc., etc., etc. Gives them more control, more ability to do things to people. Especially in our society, where if you haven't done anything, ain't on any lists, they have less opportunities to control you because you are presumed innocent.

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ZE PAPERZ NOW!

This bullshit is a stepping stone to RealID and is just as much a threat to your 4A as 5A

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Another new and different twist on pre-existing common law. Cops and deputies in Virginia have "the powers of a constable at common law". That includes the power, but only at night time, to stop and question any person, who shall be required to state his full name and the address where he customarily resides. There's another statute that makes a violation of any law for which no punishment is specified punishable as a class-one misdemeanor. The word, "misdemeanor", after all, is not the name of a crime, but a synonym for "misbehavior". Any misbehavior that is an offense to the dignity of the Sovereign is punishable by up to twelve months in jail and a twenty-five hundred dollar fine, either or both.

So the misdemeanor thing isn't changed. What is changed is the obligation of the cop to have "probable cause" (common law didn't even require "reasonable suspicion"), but can exercise the stop and question power at any time, day or night.

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peter nap wrote:

Unfortunately, you hit it dead on Citizen. Quite frankly, looking at a session I had high hopes for, far too much of the introduced legislation so far needs to be "Slapped Down" rather than supported.


This may be a disappointing year for everyone.

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It is worse when the various bills are connected.

For example:
HB1049 + HB681 = Police State

Perhaps the Authorities Advocates asssume the citizens won't pay attention.

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Citizen wrote:

We do not have a stop-and-identify statute at the state level. We do not need one.

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Where would that leave the VSP, then? Perhaps it is intended to give them some form of identify authority?

I know in Virginia Beach one must provide ones name and address upon request to properly identified police officer (Sec. 23-7.1 Virginia beach Code of Ordinances).

I am not sure about the implications of this proposal are, but I agree that it cannot be sloughed off and ignored for lack of understanding or perceived pertinence. I cannot see where this would adversely effect my interests, but that's not what vigilance and duty are about.

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Virginia House Bill 1049 is bad legislation, plain and simple.

There are currently no Stop and Identify Statutes under Virginia Law.

In fact, no other State that bourders Virginia employs any type of Stop and Indentify Statute.

This bill would work well in conjunction with an-Anti Firearm proposal that would penalize carrying a Concealed Handgun and fail to display ones License, upon demand.

This bill is already prefiled as Virginia House Bill 52, which has already been forwarded to The State Committtee of Militia, Police, and Public Safety.

Therefore, if both House Bills were to pass, then, a Person who carries a Legally Cocealed Handgun, not to the common view of others, in The Commonwealth, very well could be charged with a Class 1 Misdemeanor and an additional $25 Civil Penalty for unwittingly not 'Identifying Himself to the content of a Police Officer'... on demand, of course!

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aadvark wrote:

Virginia House Bill 1049 is bad legislation, plain and simple.

There are currently no Stop and Identify Statutes under Virginia Law.

In fact, no other State that bourders Virginia employs any type of Stop and Indentify Statute.

This bill would work well in conjunction with an-Anti Firearm proposal that would penalize carrying a Concealed Handgun and fail to display ones License, upon demand.

This bill is already prefiled as Virginia House Bill 52, which has already been forwarded to The State Committtee of Militia, Police, and Public Safety.

Therefore, if both House Bills were to pass, then, a Person who carries a Legally Cocealed Handgun, not to the common view of others, in The Commonwealth, very well could be charged with a Class 1 Misdemeanor and an additional $25 Civil Penalty for unwittingly not 'Identifying Himself to the content of a Police Officer'... on demand, of course!

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You have a huge misunderstanding of HB 52. The purpose of HB 52 is to decriminalize the failure to carry your CHP on your person. As the law is currently written, in order to be exempt from the general prohibition of carrying a concealed weapon, you must obtain a CHP, and present it upon demand to any LEO. Failure to comply with the whole law leaves you subject to being charged with carrying a concealed weapon. If you get caught without your CHP twice, you are a felon.

HB 52 codifies a civil penalty much like that for forgetting your drivers license, a total separate violation than the much more serious one of driving without actually having a drivers license.

Some LEOs and some Judges may not push it that far, but it's a good idea to remove that option.

TFred