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Thread: Former Milwaukee Police Department homicide detective blasts Chief Wray

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    Former Milwaukee Police Department homicide detective blasts Chief Wray

    http://www.badgerwordsmith.com/sping...sidered-equal/

    SNIP

    It appears that, after the fact and facing the possibility of legal action from the open carry organization, the Madison Police Department sent detectives to re-interview the woman. Why these detectives were assigned follow-up to a complaint, that any objective person, having listened to the 911 tape would find baseless, I believe, points to some skillful posterior covering.

    But the police chief’s response goes further.

    In a September 22, 2010, news release, Noble Wray tells his officers that, “The individual [openly carrying a firearm] should be contacted, controlled, and frisked for weapons if appropriate. Officers should separate the suspect from any weapons in his/her possession during the encounter.”

    But what if the party simply being ‘contacted’ for conduct the Wisconsin Attorney General believes is lawful does not wish to comply and is then ‘controlled’ and their lawfully held property seized for examination? Wray’s memo seems to place his officers in the field between the proverbial rock and a hard place.

    You can bet that open carry advocates will continue to push the envelope and many of these issues will likely be decided in state and federal courts.

    In the meantime, taxpayers in the city of Madison—hang on to your wallets.

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    This is a post that was posted on The High Road forum by NavyLT. I think it contains a lot of useful information.

    Why it's important to not show ID to police when asked for no reason

    --------------------------------------------------------------------------------

    I am sure some of you have read this:
    http://www.thehighroad.org/showthrea...wpost&t=545739

    There is large argument about whether the subjects should have shown the officers ID when asked. In a situation such as this, where there is no stop and ID law, where there is no reasonable suspicion of any crime being or about to be committed, it is important that you NOT show ID to the officer during the initial encounter. Here is why:

    Using the Culver case referenced above as an example, the first determination in court will be whether or not the subjects were actually formally detained by the officers or whether it was a consensual encounter. IF it is determined that the initial encounter was consensual - that the subjects agreed to talk to the officers - their case becomes more difficult. IF it is determined that the initial encounter was a "Terry Stop", then the next question becomes if the officers had reasonable suspicion to justify a Terry Stop.

    So - on to my title. IF the officer asks you for ID and you immediately show it to him - now it is your word against his whether or not the encounter was consensual. It is up to you to prove that you were being detained. You now have the burden of proof. You will have to show, by a combination of circumstances/actions that the officer detained you and the you (reasonable person) did not feel free to leave. Number of officers, where they were standing, handcuffs, weapons drawn, etc. will all be a basis for determining if they were detaining you or the encounter was consensual.

    IF the officer asks you for ID and you refuse to show it, now the officers next actions will demonstrate, with no doubt, whether or not you were detained. The officer can let you go on your way and it's done OR the officer can keep you there - after you have obviously made it clear you do not desire to interact with the officer and, thus, it pretty much removes all doubt that you were detained. Now the burden of proof switches to the officer. The officer must prove he had reasonable suspicion to justify detaining you. If there is no stop and ID statute (and Wisconsin does not have one), refusal to show ID in now way indicates guilt or deception. It is the mere exercise of 4th amendment rights - just like remaining silent is the mere exercise of 5th amendment rights.

    Whenever an interaction occurs with a police officer, there is the possibility the situation will end up in court. It is important to realize this and to make sure, right from the beginning, that things are as much in your favor as possible. You need to take the action necessary to place the burden of proof onto the officer vice on yourself.

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    Quote Originally Posted by Captain Nemo View Post
    This is a post that was posted on The High Road forum by NavyLT. I think it contains a lot of useful information.

    Why it's important to not show ID to police when asked for no reason

    --------------------------------------------------------------------------------

    I am sure some of you have read this:
    http://www.thehighroad.org/showthrea...wpost&t=545739

    There is large argument about whether the subjects should have shown the officers ID when asked. In a situation such as this, where there is no stop and ID law, where there is no reasonable suspicion of any crime being or about to be committed, it is important that you NOT show ID to the officer during the initial encounter. Here is why:

    Using the Culver case referenced above as an example, the first determination in court will be whether or not the subjects were actually formally detained by the officers or whether it was a consensual encounter. IF it is determined that the initial encounter was consensual - that the subjects agreed to talk to the officers - their case becomes more difficult. IF it is determined that the initial encounter was a "Terry Stop", then the next question becomes if the officers had reasonable suspicion to justify a Terry Stop.

    So - on to my title. IF the officer asks you for ID and you immediately show it to him - now it is your word against his whether or not the encounter was consensual. It is up to you to prove that you were being detained. You now have the burden of proof. You will have to show, by a combination of circumstances/actions that the officer detained you and the you (reasonable person) did not feel free to leave. Number of officers, where they were standing, handcuffs, weapons drawn, etc. will all be a basis for determining if they were detaining you or the encounter was consensual.

    IF the officer asks you for ID and you refuse to show it, now the officers next actions will demonstrate, with no doubt, whether or not you were detained.
    Having examined and thought about this exact aspect of police encounters for about three and a half years, I think the subject needs a little more treatment for new readers.

    NavyLT covers some very important points in his first paragraph--no stop-and-ID statute, no RAS--but I think those points need to be really emphasized. Really emphasized so no one comes away with a wrong idea that gets them arrested.

    Also, the whole angle on determining RAS is itself worth two paragraphs. I'll briefly state it here: the OCer will have almost no way to know whether the cop has genuine RAS. If the OCer guesses wrong in a jurisdiction that has a valid stop-and-identify statute or ordinance, the OCer may be open to legal penalities for refusing to identify, if there are any.

    The consensual nature of a police encounter could also be worth multiple paragraphs. I think the distinction needs to be made about whether the cop makes an ID request or an ID demand, meaning is ID requested in a way that makes it clear at least from the officer's tone, that the OCer can refuse; or, does the officer demand it in an authoritative tone of voice?

    Can the OCer comply with an ID demand while refusing consent, in order to establish the non-consensual nature of the compliance? I think so.

    Consent during a police encounter is its own subject. Complying with an ID request or demand during a police encounter is its own subject. Consent and ID can mix, but there are angles that need to be understood if one is going to refuse to comply with an ID demand. For that matter, there angles that need to be understood if one is going to refuse consent and then act on it by trying to walk away from an encounter.

    NavyLT gave a decent discussion. I think it just needs some clarification and emphasis on a number of very important points.
    Last edited by Citizen; 09-26-2010 at 08:18 PM.

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    Is differentiation of oral identification from seizure of ones (identification) papers worth comment?

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Doug Huffman View Post
    Is differentiation of oral identification from seizure of ones (identification) papers worth comment?
    I think so. Especially since I can't seem to find any penalty in Wisconsin for failure to provide oral identification. Can you cite one if there is Doug?
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    Good points all the way around and not just for you guys in Wisconsin.

    This also points to what we have said here many, many times; get a good voice recorder (as a minimum) and use it! That serves to eliminate the "he said" part of it as any conversation is there on record.

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    When the cops "demand ID", what precisely are they demanding?

    Protect your Fourth Amendment Rights, they don't get your papers without warrant (not 'a warrant') or exigent circumstances to infringe your Rights.

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    Quote Originally Posted by Doug Huffman View Post
    When the cops "demand ID", what precisely are they demanding?
    First, for Doug and Brass, lets clarify whether we are talking "generally" or "Wisconsin." In replying to NavyLT's comments, I was talking "generally".

    Regarding Doug's question, quoted above, I cannot recall the last time I heard of a cop demanding a verbal ID. Probably never. The question always seems to be some variation of, "I wanna see some ID?" Or, "You got any ID?" Meaning an ID document.

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    Quote Originally Posted by Citizen View Post
    First, for Doug and Brass, lets clarify whether we are talking "generally" or "Wisconsin." In replying to NavyLT's comments, I was talking "generally".

    Regarding Doug's question, quoted above, I cannot recall the last time I heard of a cop demanding a verbal ID. Probably never. The question always seems to be some variation of, "I wanna see some ID?" Or, "You got any ID?" Meaning an ID document.
    Thanks Citizen, I understood you were speaking generally.

    Guys, I think it may be time to put together a compilation, not unlike the state statutes and case law we put together just for when/if you are required to show ID. Maybe put other related things in with it as well.
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    Quote Originally Posted by Brass Magnet View Post
    SNIP I think so.
    I think the distinction is worth making.

    Three US Supreme Court cases bear on the question.

    Brown vs Texas

    Kolender vs Lawson

    Hiibel vs 6th Judicial District Ct

    I believe it was Brown that first said reasonable articulable suspicion (RAS) of a crime was needed before identity could be compelled.

    As I recall, Kolender shot down a California statute requiring a person to provide ID to a cop, not because an identity document demand was too Stalinist, but because the CA statute was too vague about what was acceptable ID, leaving the cop too much discretion as to whether the statute had been satisfied. I have read at least one state statute that seems to satisfy the Kolender decision by naming the two types of ID documents, and requiring showing them if the person has them on him at the time of seizure (Terry Stop), meaning that by not showing them if he does not have them with him, he is expressly not in violation of the statute.

    So, notice that there is no SCOTUS decision forbiding an ID document statute. The sum of those cases, as I understand it, is that 1) RAS is a pre-condition, 2) a state statute compelling a detainee to identify himself verbally is not unconstitutional, and 3) if the statute is not vague about what kinds of identity document is compelled to be shown, the state statute is not unconstitutional.

    So, the reason the distinction is worth making is because one OCer plan of action may comply with a state statute compelling identity, and another may not. Thus, an OCer should know the law and plan accordingly.
    Last edited by Citizen; 09-26-2010 at 08:53 PM.

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    Quote Originally Posted by Citizen View Post
    SNIP "I wanna see some ID?"
    Just daydreaming here:

    Cop: "I wanna see some ID."

    Citizen: "Sure, officer." <hands over a business-card stock with the following printed on it: Ipse dixit, noun, M. Latin., An unsupported dogmatic assertion.>

    Cop: "Are you some sort of smart a$$?"

    Citizen: "Well, officer, you and I both know you have no legal authority for demanding to see my ID. I'm just keeping you out of trouble. You know, tedious internal affairs questions, entries in your personnel file, and all that."




    (not a serious suggestion)

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    Quote Originally Posted by Citizen View Post
    [snip snippy snippity snip]



    (not a serious suggestion)


    Do you have the cites handy on the 5th amendment implications of showing ID? I was reading about some on friday; I think it was 7th district and the case was Illinios v. something. I have the cite stored on my other computer. I think there is an intersting interplay here as well.
    Last edited by Brass Magnet; 09-26-2010 at 09:08 PM.
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    Quote Originally Posted by Brass Magnet View Post


    Do you have the cites handy on the 5th amendment implications of showing ID? I was reading about some on friday; I think it was 7th district and the case was Illinios v. something. I have the cite stored on my other computer. I think there is an intersting interplay here as well.
    The only one I have is mentioned above, Hiibel vs 6th Judicial District Court. It expressly addresses the 5th Amendment angle. Of course, SCOTUS found one's identity is not protected by the 5th Amendment. They did leave open the idea that in the future a situation may occur where providing a name provides a link in the chain of evidence that can be used against a citizen violating his 5A right against self-incrimination. Just like happened here and to Theseus in CA a while back when cops seized his ID from his wallet non-consensually.

    Here is a link: http://www.law.cornell.edu/supct/html/03-5554.ZO.html
    Last edited by Citizen; 09-26-2010 at 09:19 PM.

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    Regular Member Tomas's Avatar
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    If one requests ID from an officer, they generally proffer a business card, why shouldn't they accept the same from us? (I know, I know, it is not the same, and I'm not even suggesting one try it, BUT...)
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    Don't put too much reliance on Hibel. It doesn't apply in Wisconsin. Wisconsin has a specific "stop and identify" statute that trumps Hibel. Statute 968.24.

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    Quote Originally Posted by Captain Nemo View Post
    Don't put too much reliance on Hibel. It doesn't apply in Wisconsin. Wisconsin has a specific "stop and identify" statute that trumps Hibel. Statute 968.24.
    That "trumps" Hiibel? State statutes don't get to trump SCOTUS opinions with regard to constitutionality. Were you just speaking casually? Did you mean that Wisconsin has a Hiibel-compliant statute?

    I just read the statute. While it authorizes a police officer to demand name, address, and an explanation of the person's conduct, the statute 1) still requires RAS, and 2) seems to have no penalty for refusing to comply.

    http://www.legis.state.wi.us/statutes/Stat0968.pdf

    Previous posters in other threads (1-2 posters) have asserted to me that there is no penalty for refusing to comply in Wisconsin. I think one cited an AG opinion that refusing to comply was not "obstruction".

    What is the danger you apprehend by saying to not rely too much on Hiibel?
    Last edited by Citizen; 09-26-2010 at 09:49 PM.

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    For Reference:
    968.24 Temporary questioning without arrest.
    After
    having identified himself or herself as a law enforcement officer,
    a law enforcement officer may stop a person in a public place for
    a reasonable period of time when the officer reasonably suspects
    that such person is committing, is about to commit or has com-
    mitted a crime, and may demand the name and address of the per-
    son and an explanation of the person’s conduct. Such detention
    and temporary questioning shall be conducted in the vicinity
    where the person was stopped.
    History: 1993 a. 486.
    Suspicious behavior of a driver and passenger justified detention. State v. Goebel,
    103 Wis. 2d 203, 307 N.W.2d 915 (1981).
    A defendant’s flight from a police officer may, using the totality of circumstances
    test, justify a warrantless investigatory stop. State v. Jackson, 147 Wis. 2d 824, 434
    N.W.2d 386 (1989).
    Actions suggesting to a reasonable police officer that an individual is attempting
    to flee is adequately suspicious to support an investigatory stop. State v. Anderson,
    155 Wis. 2d 77, 454 N.W.2d 763 (1990).
    The Terry rule applies once a person becomes a valid suspect even though the
    encounter was initially consensual; if circumstances show investigation is not com-
    plete, the suspect does not have the right to terminate it. State v. Goyer, 157 Wis. 2d
    532, 460 N.W.2d 424 (Ct. App. 1990).
    When a person’s activity may constitute either a civil forfeiture or crime, an inves-
    tigative stop may be performed. State v. Krier, 165 Wis. 2d 673, 478 N.W.2d 63 (Ct.
    App. 1991).
    A “showup” where police present a single suspect to a witness for identification,
    often at or near a crime scene shortly after the crime occurs, is suggestive but not
    impermissibly suggestive per se. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916
    (Ct. App. 1996), 96−0168.
    Detaining a person at his home, then transporting him about one mile to the scene
    of an accident in which he was involved, was an investigative stop and a reasonable
    part of an ongoing accident investigation. State v. Quartana, 213 Wis. 2d 440, 570
    N.W.2d 618 (Ct. App. 1997), 97−0695.
    That the defendant is detained in a temporary Terry stop does not automatically
    mean Miranda warnings are not required. Whether the warnings are required
    depends on whether a reasonable person in the defendant’s position would have con-
    sidered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582
    N.W.2d 728 (Ct. App. 1998), 96−2588.
    This section authorizes officers to demand identification only when a person is sus-
    pected of committing a crime, but does not govern the lawfulness of requests for iden-
    tification in other circumstances. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613
    N.W.2d 72, 98−0931.
    A police officer performing a Terry stop and requesting identification could per-
    form a limited search for identifying papers when: 1) the information received by the
    officer was not confirmed by police records; 2) the intrusion on the suspect was mini-
    mal; 3) the officer observed that the suspect’s pockets were bulging; and 4) the officer
    had experience with persons who claimed to have no identification when in fact they
    did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99−1686.
    Under Florida v. J.L., an anonymous tip giving rise to reasonable suspicion must
    bear indicia of reliability. That the tipster’s anonymity is placed at risk indicates that
    the informant is genuinely concerned and not a fallacious prankster. Corroborated
    aspects of the tip also lend credibility; the corroborated actions of the suspect need
    be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 241 Wis.
    2d 631, 623 N.W.2d 106, 96−1821.
    An anonymous tip regarding erratic driving from another driver calling from a cell
    phone contained sufficient indicia of reliability to justify an investigative stop when:
    1) the informant was exposed to possible identification, and therefore possible arrest
    if the tip proved false; 2) the tip reported contemporaneous and verifiable observa-
    tions regarding the driving, location, and vehicle; and 3) the officer verified many of
    the details in the tip. That the tip reasonably suggested intoxicated driving created
    an exigency strongly in favor of immediate police investigation without the necessity
    that the officer personally observe erratic driving. State v. Rutzinski, 2001 WI 22, 241
    Wis. 2d 729, 623 N.W.2d 516, 98−3541.
    When a caller identifies himself or herself by name, placing his or her anonymity
    at risk, and the totality of the circumstances establishes a reasonable suspicion that
    criminal activity may be afoot, the police may execute a lawful investigative stop.
    Whether the caller gave correct identifying information, or whether the police ulti-
    mately could have verified the information, the caller, by providing the information,
    risked that his or her identity would be discovered and cannot be considered anony-
    mous. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, 00−2614.
    It was reasonable to conduct a Terry search of a person who knocked on the door
    of a house while it was being searched for drugs pursuant to a warrant. State v. Kolp,
    2002 WI App 17, 250 Wis. 2d 296, 640 N.W.2d 551, 01−0549.
    Terry and this section apply to confrontations between the police and citizens in
    public places only. For private residences and hotels, in the absence of a warrant, the
    police must have probable cause and exigent circumstances or consent to justify an
    entry. Reasonable suspicion is not a prerequisite to an officer’s seeking consent to
    enter a private dwelling. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641
    N.W.2d 474, 01−0904.
    To perform a protective search for weapons, an officer must have reasonable suspi-
    cion that a person may be armed and dangerous. A court may consider an officer’s
    belief that his, her, or another’s safety is threatened in finding reasonable suspicion,
    but such a belief is not a prerequisite to a valid search. There is no per se rule justifying
    a search any time an individual places his or her hands in his or her pockets contrary
    to police orders. The defendant’s hand movements must be considered under the
    totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1
    The principles of Terry permit a state to require a suspect to disclose his or her name
    in the course of a Terry stop and allow imposing criminal penalties for failing to do
    so. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177,
    159 L. Ed 2d 292, 124 S. Ct. 2451 (2004).
    When the defendant’s refusal to disclose his name was not based on any articulated
    real and appreciable fear that his name would be used to incriminate him, or that it
    would furnish a link in the chain of evidence needed to prosecute him, application of
    a criminal statute requiring disclosure of the person’s name when the police officer
    reasonably suspected the person had committed a crime did not violate the protection
    against self−incrimination. Hiibel v. Sixth Judicial District Court of Nevada, Hum-
    boldt County, 542 U.S. 177, 159 L. Ed 2d 292, 124 S. Ct. 2451 (2004).
    Weaving within a single traffic lane does not alone give rise to the reasonable suspi-
    cion necessary to conduct an investigative stop of a vehicle. The reasonableness of
    a stop must be determined based on the totality of the facts and circumstances. State
    v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05−2778.
    The potential availability of an innocent explanation does not prohibit an investiga-
    tive stop. If any reasonable inference of wrongful conduct can be objectively dis-
    cerned, notwithstanding the existence of other innocent inferences that could be
    drawn, the officers have the right to temporarily detain the individual for the purpose
    of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877,
    07−1578.
    Cell Phone Tips of Crime and ‘Reasonable Suspicion.’ Andregg. Wis. Law. June
    2005.
    NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitu-
    tion.
    946.41Resisting or obstructing officer.
    (1) Except as
    provided in subs. (2m) and (2r), whoever knowingly resists or
    obstructs an officer while such officer is doing any act in an offi-
    cial capacity and with lawful authority is guilty of a Class A mis-
    demeanor.
    (2) In this section:
    (a) “Obstructs” includes without limitation knowingly giving
    false information to the officer or knowingly placing physical evi-
    dence with intent to mislead the officer in the performance of his
    or her duty including the service of any summons or civil process.
    (b) “Officer” means a peace officer or other public officer or
    public employee having the authority by virtue of the officer’s or
    employee’s office or employment to take another into custody.
    (2m) Whoever violates sub. (1) under all of the following cir-
    cumstances is guilty of a Class H felony:
    (a) The violator gives false information or places physical evi-
    dence with intent to mislead an officer.
    (b) At a criminal trial, the trier of fact considers the false infor-
    mation or physical evidence.
    (c) The trial results in the conviction of an innocent person.
    (2r) Whoever violates sub. (1) and causes substantial bodily
    harm to an officer is guilty of a Class H felony.
    (3) Whoever by violating this section hinders, delays or pre-
    vents an officer from properly serving or executing any summons
    or civil process, is civilly liable to the person injured for any actual
    loss caused thereby and to the officer or the officer’s superior for
    any damages adjudged against either of them by reason thereof.
    History: 1977 c. 173; 1983 a. 189; 1989 a. 121; 1993 a. 486; 2001 a. 109; 2009
    a. 251.
    The state must prove that the accused knew that the officer was acting in an official
    capacity and knew that the officer was acting with lawful authority when the accused
    allegedly resisted or obstructed the officer. State v. Lossman, 118 Wis. 2d 526, 348
    N.W.2d 159 (1984).
    Knowingly providing false information with intent to mislead is obstruction as a
    matter of law. State v. Caldwell, 154 Wis. 2d 683, 454 N.W.2d 13 (Ct. App. 1990).
    No law allows officers to arrest for obstruction on a person’s refusal to give his or
    her name. Mere silence is insufficient to constitute obstruction. Henes v. Morrissey,
    194 Wis. 2d 339, 533 N.W.2d 802 (1995).
    Fleeing and hiding from an officer may constitute obstructing. State v. Grobstick,
    200 Wis. 2d 242, 546 N.W.2d 494 (1996), 94−1045.
    There is no exculpatory denial exception under this section. The statute criminal-
    izes all false statements knowingly made and with intent to mislead the police. The
    state should have sound reasons for believing that a defendant knowingly made false
    statements with intent to mislead the police and not out of a good−faith attempt to
    defend against accusations of a crime. There is no exculpatory denial exception under this section. The statute criminal-
    izes all false statements knowingly made and with intent to mislead the police. The
    state should have sound reasons for believing that a defendant knowingly made false
    statements with intent to mislead the police and not out of a good−faith attempt to
    defend against accusations of a crime. The latter can never include the former. State
    v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315, 03−1781
    “Lawful authority,” as that term is used in sub. (1), requires that police conduct be
    in compliance with both the federal and state constitutions, in addition to any applica-
    ble statutes. State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187,
    07−2095.
    I would say we don't have to even give a name in Wisconsin. Unless someone else can find a relavent statute?
    Last edited by Brass Magnet; 09-26-2010 at 10:13 PM.
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    Regular Member paul@paul-fisher.com's Avatar
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    I contend that in WI, if we had the death penalty, a person could go from original crime through execution as a John Doe legally.

    What I mean is that I find no reason that someone has to produce ID for ANY reason, verbally, papers (assuming non permit uses such as auto, hunting).

  19. #19
    Wisconsin Carry, Inc. Shotgun's Avatar
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    Quote Originally Posted by Citizen View Post
    That "trumps" Hiibel? State statutes don't get to trump SCOTUS opinions with regard to constitutionality. Were you just speaking casually? Did you mean that Wisconsin has a Hiibel-compliant statute?

    I just read the statute. While it authorizes a police officer to demand name, address, and an explanation of the person's conduct, the statute 1) still requires RAS, and 2) seems to have no penalty for refusing to comply.

    http://www.legis.state.wi.us/statutes/Stat0968.pdf

    Previous posters in other threads (1-2 posters) have asserted to me that there is no penalty for refusing to comply in Wisconsin. I think one cited an AG opinion that refusing to comply was not "obstruction".

    What is the danger you apprehend by saying to not rely too much on Hiibel?
    Hiibel has no effect in Wisconsin because the state supreme court interpreted the obstruction statute to not include refusal to provide identification. They made a statutory interpretation rather than a constitutional interpretation. Had they said in was unconstitutional for the police to demand ID Hiibel would have had an impact.
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  20. #20
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    Quote Originally Posted by Shotgun View Post
    Hiibel has no effect in Wisconsin because the state supreme court interpreted the obstruction statute to not include refusal to provide identification. They made a statutory interpretation rather than a constitutional interpretation. Had they said in was unconstitutional for the police to demand ID Hiibel would have had an impact.
    Makes sense. Thanks.

    Kinda sad the state supreme court had to render an opinion on it. Clearly the statute (946.41) does not include withholding one's identity; it seems to include only giving false information. Meaning it would be obstruction if you gave a false name; but not if you gave no name.

    http://www.legis.state.wi.us/statutes/stat0946.pdf
    Last edited by Citizen; 09-27-2010 at 01:03 AM.

  21. #21
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    compliance to provide i.d. on demand is and means nothing, you will still be detained, treated like a criminal, deprived of your rights, and issued bougs citations to cover their asses.

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    Is this a Correct Summary?

    Police May (Lawfully) Demand Identification (by speaking/by document)

    Consensual Encounter - No to orally, No to document
    Legal References
    Wisconsin – Not identifying is not obstruction (Henes v. Morrissey, 194 Wis. 2d 339 (1995)

    Terry/RAS - No, except when driving or when state statute requires (at least giving name orally)
    Legal References
    WI statute requires giving name and address (Wis. Stat. §968.24)
    Federal Constitution allows state law requiring oral ID/document ID? Hiibel 542 U.S. 177 (2004)

    Open Question
    Wisconsin Constitution requires/allows/prohibits oral ID/document ID? – no constitutional provision/no case law?

  23. #23
    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by apjonas View Post
    Police May (Lawfully) Demand Identification (by speaking/by document)

    Consensual Encounter - No to orally, No to document
    Legal References
    Wisconsin – Not identifying is not obstruction (Henes v. Morrissey, 194 Wis. 2d 339 (1995)

    Terry/RAS - No, except when driving or when state statute requires (at least giving name orally)
    Legal References
    WI statute requires giving name and address (Wis. Stat. §968.24)
    Federal Constitution allows state law requiring oral ID/document ID? Hiibel 542 U.S. 177 (2004)

    Open Question
    Wisconsin Constitution requires/allows/prohibits oral ID/document ID? – no constitutional provision/no case law?
    I had to read your post a few times to figure it out, I think it could be more simply put. For example, it's most important to know from the citizens perspective when he/she is required to give a form of ID; verbally or otherwise.

    So, I would put it like this unless someone can come up with a cite to Wisconsin law that I am incorrect.

    Am I required to identify myself to police in Wisconsin?

    Operating a motor vehicle that requires a license - YES
    Consensual encounter - NO
    Terry Stop (temporary detainmant, officer says you are not free to go when asked) - NO
    Arrest - YES, but the LEO can get it himself.

    Now from an LEO's perspective I would argue that it would look something like this.

    When can I ask for or demand ID from a citizen of Wisconsin?

    Citizen is operating a motor vehicle that requires a license - DEMAND
    Consensual encounter - ASK
    Terry Stop (You have RS) - ASK
    Arrest - DEMAND

    If you notice, I used ASK instead of DEMAND for the Terry Stop because even though the statute 968.24 says the officer may DEMAND there is effectively no penalty for the citizen to not comply with that demand. So, IMHO, and as per Henes v. Morrissey; with no legal authority to back up the demand with legal force, it becomes a de facto request.
    Last edited by Brass Magnet; 09-27-2010 at 02:52 PM.
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  24. #24
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    Am I required to identify myself to police in Wisconsin?

    Operating a motor vehicle that requires a license - YES
    Consensual encounter - NO
    Terry Stop (temporary detainmant, officer says you are not free to go when asked) - NO
    Arrest - YES, but the LEO can get it himself.
    My contention is:

    Operating a motor vehicle that requires a license - YES
    Consensual encounter - NO
    Terry Stop (temporary detainmant, officer says you are not free to go when asked) - NO
    Arrest - NO, but the LEO can get use independent means to ID me.

  25. #25
    Regular Member Thundar's Avatar
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    Quote Originally Posted by Citizen View Post

    So, the reason the distinction is worth making is because one OCer plan of action may comply with a state statute compelling identity, and another may not. Thus, an OCer should know the law and plan accordingly.
    It can be more complex than that.

    State v. local laws - no preemption In Virginia there is no stop and identify law, but there is no state law prohibiting localities from making such a law so several cities and counties do have such laws. Example: Norfolk, Virginia Beach and Chesapeake all have different stop and identify laws.

    Different requirements In Virginia the requirements of each city mentioned above are different as are the penalties for non-compliance.

    This is why, when I am in activist mode, I practice sterile open carry. No ID for police to find and no words out of my mouth except, maybe my name (depending on local laws). My cell phone is locked and my firearms have duct tape over the serial numbers.
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