The right to anonymous pedestrian travel and protest
In a victory for the right to anonymous pedestrian travel and protest, the 5th Circuit Court of Appeals has reinstated a civil rights lawsuit brought by a protester who was arrested while holding a sign alongside a road in Stafford, Texas (near Houston), and charged with violating Texas Penal Code § 38.02:
Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
The opinion of the 5th Circuit panel in Jonathan Davidson v. City of Stafford, et al. breaks no new ground, but it’s an important reminder to the public and to police of the right to protest, the right to walk the streets and highways, the right to do so anonymously — and the potential liability of police who abridge those rights.
State and local ID laws vary greatly, and it’s important to know the law in your jurisdiction. We reiterate the importance of knowing the law in your jurisdiction and seeking legal advice in advance (this blog is not legal advice) if you anticipate being questioned by police.
As we read this decision, however, the key lesson it reinforces is that laws like Texas Penal Code § 38.02 which require people who are arrested to identify themselves can’t be used to bootstrap a general requirement for anyone on the street to identify themselves to police on demand. Such a law imposes an obligation to identify oneself only if there is probable cause for police to believe that some other law was violated.
Without some other lawful basis for an arrest, such an ID-if arrested law creates no obligation for a pedestrian or protester to identify herself to police.