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.

According to the appellate court:

Davidson’s protest consisted of standing in the green space [between the highway and the parking lot of a strip of businesses], holding a sign… and waving at cars both on U.S. 59 and in the parking lot. If a car stopped, Davidson would speak to the passengers…

Local police were called by an employee of one of the businesses, and talked with Davidson:

At this point, Davidson backed away from the officers and acted as if he was going to continue protesting. Officer Flagg asked Davidson to come back and continue speaking to both officers. Officer Flagg also asked Davidson for identification. Davidson said he did not have any identification and that his name was “Jonathan.” Officer Flagg repeatedly asked Davidson for identification or his last name, to which Davidson responded with either “Jonathan” or “Jon.” Based on these responses, Officers Flagg and Jones arrested Davidson. As they arrested Davidson, the officers stated “you don’t ID, you go to jail” and “you fail to ID, you got to jail.” Upon a request from Davidson to know why he was being arrested, one of the officers stated “fail to ID, when we’re conducting an investigation, did not identify yourself to the police.” Davidson again informed the officers that his name was Jonathan and that he was not operating a motor vehicle, but an officer stated “when we’re conducting an investigation, fail to give your name to the police, you go to jail.”

Davidson was charged with failure to identify under Texas Penal Code § 38.02 and taken to Fort Bend County Jail. He was released later that night. Approximately a year later, Davidson’s attorney sent a letter to the City of Stafford (“the City”) to confirm that Davidson would not be subject to any present or future prosecution. The City responded that it would not prosecute Davidson for his previous conduct but did not state whether it would prosecute Davidson for similar conduct in the future. Davidson testified that he intends to protest … in the future but had not returned because he does not want to end up back in jail.

Davidson subsequently filed suit, alleging claims under 42 U.S.C. § 1983 for violations of his rights to both freedom of speech under the First Amendment and freedom from unreasonable searches and seizures under the Fourth Amendment. Davidson also asserted an as-applied challenge to Texas Penal Code §§ 38.02 and 42.03. Davidson named Officers Flagg and Jones, Chief of Police Bonny Krahn, and the City as defendants. Davidson’s complaint sought damages, including punitive damages, as well as a declaration that Defendants’ actions, policies, and practices violated the Constitution.

Following an answer by the Defendants and discovery, Defendants filed motions for summary judgment. The district court ultimately granted summary judgment in favor of the Defendants on all claims

The Court of Appeals overturned that summary judgment, reinstated the civil rights complaint against the police, and sent the case back to the District Court.

Mr. Davidson was told that he was being arrested for violating the state ID-if-arrested law, Texas Penal Code § 38.02, and that was the only charge ever filed against him. Nevertheless, the police and the city of Stafford later tried to justify the arrest by claiming that they also had probable cause to have arrested Davidson for violating Texas Penal Code § 42.03 (obstructing a highway). Courts have often accepted this sort of ex post facto rationalization for arrests. In this case, however, the Court of Appeals found that there was no probable cause to arrest Mr. Davidson for obstructing the highway. And in the absence of any lawful basis for an arrest, M.r Davidson had no obligation to identify himself. A person falsely arrested — as the Court of Appeals concluded Mr. Davidson had been — is not required, even under a law like Texas Penal Code § 38.02, to identify himself to the perpetrators of the false arrest.

2 Responses to “The right to anonymous pedestrian travel and protest”

  1. Papers, Please! » Blog Archive » The right to record police anonymously Says:

    […] as applied to people engaged in activities protected by the First Amendment in public places. An earlier decision upheld the right to anonymity for a protester standing along a highway (where the sidewalk would […]

  2. Papers, Please! » Blog Archive » “Border” search and ID demand from passengers on a domestic flight Says:

    […] documents is, in itself, grounds for arrest or indefinite detention. As we have noted in recent cases, courts have consistently held that pedestrians cannot lawfully be required to identify themselves […]

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