In a case resting on the same Nevada law that was at issue in the Supreme Court’s 2004 decision in Hiibel v. Nevada, the 9th Circuit Court of Appeals has held that someone who runs away from approaching police can be found guilty of “obstructing” the police by denying them the opportunity to question him about his identity.

The 9th Circuit overturned findings by the U.S. District Court for the District of Nevada that the police lacked reasonable suspicion to detain the person in the first place and, even if they had a basis to detain him, lacked probable cause to arrest him. The decision signficantly undermines, in the 9th Circuit, the positive aspects and the limitations in the Supreme Court’s decision on police demands for ID in Hiibel v. Nevada, as well as the right to remain silent and the right to be free from unreasonable searches.

As described by the 9th Circuit panel its opinion in U.S. v. Williams (No. 15-10008, D.C. No. 2:14-cr-00334-RFB-VCF-1), someone called the Las Vegas police to report a black male sleeping in a car in the parking lot of an apartment complex. The caller alleged that the man didn’t live in the complex and was “known to sell drugs in the area.”

Las Vegas police were dispatched to check out the area, and found that there was a black male sleeping in a car in the parking lot. This isn’t necessarily a crime, even if the man didn’t live in the complex. The police claimed, and the 9th Circuit accepted uncritically, that they suspected the man of trespassing. Normally, however, someone isn’t guilty of trespassing, especially in an unfenced open outdoor area, unless they have violated properly-placed and visible “No Trespassing” signs, or have entered or remained on the property after being properly ordered to leave by a person duly authorized to give such orders.

There’s no mention in the 9th Circuit decision of whether the police saw any “No Trespassing” signs, and no suggestion that anyone ordered the sleeping man to leave or even that there was anyone present who had the authority to order him to leave. He left the premises as quickly as possible as soon as the police approached him, which is normally all that would be required even if they had been authorized by the property owner to tell him to leave, and had done so. Absent some other evidence not mentioned in the appellate opinion of valid “No Trespassing” signage or orders to leave, there was simply no basis for a charge of trespassing, or even for an investigation of possible trespassing. But this issue isn’t addressed in the Circuit Court opinion.

According to the 9th Circuit, this is what happened next that created probable cause to arrest the sleeper for “obstructing” the police:

The officers turned on their overhead lights, ‘take-down’ lights, and spotlights, shining them into the Ford’s windows. After the officers turned on their lights, a black male, later identified as defendant Tony Williams, sat up in the driver’s seat inside the Ford. Williams looked to his left and right, then started his car. Williams momentarily placed the car in reverse and then quickly shifted the car back into park. By the time Williams started the car, both officers were approaching the Ford on foot. Hubbard approached the car on the driver’s side, while Keller approached on the passenger’s side with his handgun drawn. Hubbard yelled at Williams through the Ford’s closed windows to turn off the engine and exit the vehicle. Williams complied and got out of the car. Hubbard continued walking towards Williams, until he was within three to four feet of him. Williams, without saying a word, ran….  Keller ran after Williams on foot, and Hubbard joined the pursuit in the patrol car. The pursuit lasted approximately one minute. Two or three buildings away from the parking lot, Williams fell and did not get up. He remained on the ground where he had fallen with his hands out.

By the 9th Circuit’s own account of the facts, the only orders the police gave Mr. Williams were to “turn off the engine and exit the vehicle.” With respect to those orders, “Williams complied.” Neither of the police officers told Mr. Williams that he was being detained or arrested or that he was not free to leave. Nobody asked him any questions, or told him they wanted to do so.

If the police find you someplace they don’t want you to be, and yell at you, “Get out of there!”, it seems perfectly reasonable — and, in fact, the prudent thing to do to avoid any accusation of failing to leave promptly on demand — to expect that to be followed by, “… and get away from here and off the property!”  Mr. Williams’ prompt departure from the premises seems at least as much an indication of diligent avoidance of trespassing as of trespassing. At the first sign that he might be unwelcome, he left — or tried to, until the police stopped him.

But the 9th Circuit found that, even though Mr. Williams had neither been physically seized, told to stop or that he was not free to go, nor asked any questions, his flight constituted a criminal violation of Nevada Revised Statutes § 199.280, which sets criminal penalties for anyone who “willfully resist, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his or her office.”  Leaving aside the willfulness element (how was Mr. Williams supposed to have known that the police would want to question him, rather than merely get him to leave?), the 9th Circuit found that asking a suspect to identify himself, pursuant to NRS § 171.123, was a “duty” of the police which Mr. Williams had somehow resisted, delayed, or obstructed merely by (trying to) leave the scene before they might be tempted to seize or question him.

California, the largest state in the 9th Circuit, has no “stop and ID” law. But in the wake of this decision, what’s left of the right to remain silent or not to show ID in Nevada and the other states in the 9th Circuit that have laws like NRS § 199.280?

This wasn’t a case of failing or refusing to answer questions, or running away when the police asked for ID. Mr. Williams was held to have committed a crime solely by not waiting around for the police to start asking questions.

Can crossing the street to avoid walking past police be punished as a crime? How about turning around and walking away at their approach, or simply giving them the cold shoulder?  If it’s legal to walk but not to run, how fast is too fast?

Should Mr. Williams have run away sooner, before the police got close enough to shout questions or commands (not that they actually did so) or to claim that he was constructively detained by their mere approach?

We’ll leave these troubling questions as exercises for the reader, or for the Supreme Court in this or some future case.