A panel of the 10th Circuit US Court of Appeals has ruled, in the case of Mglej v. Gardner, that it is “clearly established law” that police in Utah may not require suspects (or anyone else they detain, except operators of motor vehicles) to show ID documents, and therefore that the Garfield County Sheriff who wrongly arrested Matthew T. Mglej for “refusing to identify himself” is not entitled to qualified immunity and can be held liable for damages.

In the summer of 2011, Mr. Mglej, then 21 years old, set out on his motorcycle from his family home in Portland, OR, to visit relatives in Dallas, TX. Mid-way on that road trip, his motorcycle developed problems, and he stopped in Boulder, UT (population around 200), to see if he could get his bike repaired and replace a tire that was threatening to blow.

The town of Boulder’s offical website says that:

Boulder is isolated, remote, and spectacular…. Boulder claims to be the last community in the continental United States to receive its mail by mule train. Completion of a year-round road in 1939 opened Boulder to car traffic from the south/west. The northern portion of Highway 12 over Boulder Mountain was paved in 1985. That, along with its designation as an All-American Highway, has opened up this tiny, rural ranching burg to the eyes of the world. For better or worse, people now know of Boulder, Utah. The ongoing challenge for Boulder area residents is to make sure the things we love here aren’t loved to death.

Most people in Boulder — except the Sheriff — welcomed Mr. Mglej as a stranded traveler.  The only mechanic in town, Chuck Gurle, mostly worked on agricultural implements. But Mr. Gurle offered to let Mr. Mglej stay with him for the week or so it would take to get  a replacement tire delivered and his bike repaired.

But during the week that Mr. Mglej was hanging out in Boulder, Sheriff Raymond Gardner noticed him — almost inevitably in such a small town — and, apparently, took a dislike to him. Mr. Mglej “suffer[s] from Asperger’s Disorder, anxiety, and PTSD“, none of which are illegal or grounds for suspicion of any crime, but which the Sheriff may not have liked. Or maybe the Sheriff just doesn’t like uppity young strangers hanging around “his” town, whether or not they are bikers or behaving in ways he considers strange.

(Back in Portland, while Mr. Mglej’s case against Sheriff Gardner and Garfield County was working its way up to the 10th Circuit Court of Appeals, a man who appears to have been the same Matthew T. Mglej was arrested for playing his violin on the sidewalk outside the Federal courthouse while naked. Mr. Mglej’s lawsuit against the city of Portland for false arrest and other violations of his rights made its way to the 9th Circuit Court of appeals. Public nudity as a form of expressive conduct is legal in Oregon, but the 9th Circuit decided in 2018 that the Portland police were entitled to qualified immunity because it wasn’t clearly established law that Mr. Mglej’s naked violin-playing was “expressive conduct”. Perhaps the judges thought he needed to play with more feeling? But we digress. That was a separate case, and we can’t be 100% certain that it involved the same Matthew T. Mglej of Portland.)

After Mr. Mglej’s bike was repaired and as he was preparing to leave town, Sheriff Gardner showed up at Mr. Gurle’s home, where Mr. Mglej was staying. The Sheriff accosted Mglej and demanded that he show the Sheriff a drivers’ license or some other ID document. “When Mglej declined to give the deputy his ID before consulting with an attorney, Gardner arrested him,” according to the District Court’s restatement of Mr. Mglej’s complaint.

Sheriff Gardner claimed to be investigating a possible $20 theft from a convenience store in town. But there had been no theft, as the Sheriff knew before he even got Mr. Mglej to the jail, and there had never been any basis for suspicion of Mr. Mglej — except that he was young and from out of town, which is not a lawful basis for detention, much less arrest.

After arresting Mr. Mglej, Sheriff Gardner engaged in the sort of casual brutality that might be considered stereotypical of venal local law enforcement officers dealing with vulnerable and disfavored prisoners. Handcuffing Mr. Mglej to take him to jail, Sheriff Gardner over-tightened the cuffs so far that, when Mr. Mglej complained of severe pain, the Sheriff couldn’t get the cuffs unlocked. The Sheriff struggled with a variety of screwdrivers, pliers, vice grips, and other hand tools to get the broken handcuffs off, exacerbating Mr. Mglej’s pain and suffering. Then he put another pair of cuffs on Mr. Mglej’s injured wrists for the two-hour drive to the jail in the county seat of Panguitch, 95 miles away. Mr Mglej was later treated for potentially permanent nerve damage to both his wrists.

“Mr. Mglej alleges that when an officer at the jail asked what Mr. Mglej was being booked for, Officer Gardner responded, “I don’t know. Let me look in the [law] book. I’m sure I can find something.” A judge set bail for Mr. Mglej a day later, but the Sheriffs wouldn’t give him access to his confiscated wallet so that he could post his bail for another two days after that. In the meantime, after Mr. Mglej told the Sheriffs he was allergic to dairy foods, the jailers gave him dairy for every meal. When he got out of jail, he had to hitchhike 95 miles back to Boulder, where he found that “[his] bike had been vandalized by joyriders and that [his] possessions, including a digital camera, GPS, and video camera, had been stolen.”

All of the trumped-up charges against Mr. Mglej were eventually dismissed, whereupon he sued the Sheriffs for false arrest, excessive force (with the handcuffs), malicious prosecution, and other violations of his rights.

The Sheriff claimed that he was entitled to qualified immunity because none of their actions violated any clearly established rights. A key issue for both the Federal District Court’s and the 10th Circuit Court of Appeals in resolving the qualified immunity claim was whether it was clearly established law, such that no Utah law enforcement officer could  reasonably believe otherwise or be uncertain, that refusal to show ID is neither a resonable basis for suspicion of a crime nor in itself unlawful or a basis for detention or arrest. Both the District Court and the Court of Appeals so held. As a result, the Sheriff doesn’t have qualified immunity, and Mr. Mglej’s complaint can proceed to trial.

Relying on the US Supreme Court’s decision in Hiibel v. Nevada (2004) the 10th Circuit panel carefully — and, we think, correctly — distinguished this case from the earlier decisions of 10th Circuit panels upholding qualified immunity for police ID demands in New Mexico in Mocek v. Albuquerque (2015) and in Utah in Oliver v. Woods (2000).

Key to the 10th Circuit’s decision in Mglej v. Gardner was the distinction recognized by the Supreme Court in Hiibel v. Nevada between requiring someone to “identify themself” by stating their name, and requiring them to show some credential or evidence of identity.

The Supreme Court upheld the Nevada “stop and ID” law as interpreted to require persons lawfully detained (on the basis of reasonable suspicion of a crime) only to identify themselves verbally by stating their name, and not to require that detainees show ID documents, credentials, or other evidence of identity.

According to the latest decision by the 10th Circuit:

Assuming Deputy Gardner had reasonable suspicion, there still was no probable cause to arrest Mglej under Utah Code § 76-8-301.5(1) when he refused to give Deputy Gardner his driver’s license or some other form of identification. Section 76-8-301.5(1) only makes it a crime for a detainee, during an investigative detention, to refuse to provide his name to a police officer under certain circumstances. Deputy Gardner did not just ask Mglej for his name. He instead asked Mglej for his driver’s license or some other form of identification, and the deputy arrested Mglej when he failed to provide an ID. There is a significant difference between asking an investigative detainee’s name and demanding instead his driver’s license or some other form of identification document. Asking for a driver’s license or other identification is much more intrusive because, while such a form of identification would have Mglej’s name, it would include all sorts of additional personal information that the officer was not authorized under Utah law to demand during an investigative detention….

More importantly here, the Utah Code limits the criminal offense set forth in § 76-8-301.5 to refusing to provide one’s “name.” This is consistent with the Supreme Court’s decision in Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), which held that “requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.” Id. at 187-88 (emphasis added)…

[B]ased on the plain language of the Utah statutes, Deputy Gardner could not have reasonably believed that he had probable cause to arrest Mglej for violating Utah Code § 76-8-301.5 when the deputy specifically demanded Mglej’s driver’s license or some other form of identification….

Mocek v. City of Albuquerque, 813 F.3d 912 (10th Cir. 2015), on which Deputy Gardner relies, is distinguishable. In that case, Mocek alleged that a police officer lacked probable cause to arrest him under a New Mexico statute that made it a crime to conceal one’s “true name or identity” under certain circumstances. Id. at 922 (citing N.M. Stat. § 30-22-3). Because New Mexico courts had not addressed what the statute meant by “identity,” the Tenth Circuit held that an objectively reasonable officer could have believed that he had probable cause to arrest Mocek under that statute when Mocek failed to produce his ID upon request, even though this Court doubted the state statute made it a crime not to produce an ID. Id. at 925-26. Different from the New Mexico statute at issue in Mocek, it is clear that Utah Code § 76-8-301.5 only permits an officer to arrest a suspect for his failure to provide his “name” during such an investigative stop (provided the other conditions set forth in that statute are met). The Utah statute’s language is unmistakably clear.

In Oliver v. Woods, 209 F.3d 1179 (2000), the 10th Circuit upheld qualified immunity for police who arrested a man in Utah for refusing to identity himself. But that case predated the Supreme Court;s decsion in Hiibel v. Nevada.  At the time of the 10th Circuit’s decsion in  Oliver v. Woods,:

Mr. Oliver had no clearly established constitutional right to violate Utah Code Ann. 76-8-305 by refusing to identify himself…. In Brown, the Supreme Court made it clear the Fourth Amendment does not permit officers to arrest an individual simply because he or she refuses to present identification when the officers have no basis whatsoever to suspect the individual of criminal conduct to support the initial detention. This is the case even when a state statute might seem to furnish the authority to do so. 443 U.S. at 52-53. However, the Supreme Court expressly declined to address whether an individual has the right to refuse to present identification during a lawful investigative detention. Id. at 53 n.3. In Kolender v. Lawson, 461 U.S. 352 (1983), the court once again turned down the opportunity to address this issue. Id. at 361 n.10 (declining to address whether a California statute which required an individual to present identification in the context of a lawful investigative stop was in violation of the Fourth Amendment). Furthermore, in Albright, this court expressly held the right to refuse to present identification in the context of a lawful investigative detention has not been clearly established. 51 F.3d at 1537-38. See also Gainor v. Rogers, 973 F.2d 1379, 1386 n.10 (8th Cir. 1992) (noting the Supreme Court has not determined if a person can be lawfully arrested for refusing to identify himself or herself in the context of a lawful investigative stop). See also Tom v. Voida, 963 F.2d 952, 959 & n.8 (7th Cir. 1992) (concluding it is an open question whether citizens can refuse to respond to questions posed during lawful investigative stops). Because the initial stop was based on reasonable suspicion of criminal activity, the application of Utah Code Ann. 76-8-305 to the present situation would not violate Mr. Oliver’s clearly established rights.

Taking another look at the Utah “stop and identity” laws in the wake of Hiibel, the 10th Circuit has now found that an arrest for failure to “show” ID or produce ID credentials,as distinct from refusing to state one’s name, violates a detainee’s clearly established rights.

We hope that this opinion will be adopted as persuasive by other Federal circuit courts.

(P.S. — We’ve been getting some questions regarding an incident that reportedly involved a demand for ID by police making a traffic stop from a passenger in a vehicle — not the driver. The incident occurred in a different Federal appellate circuit, but the most recent decision on this issue we are aware of was from the 9th Circuit Court of Appeals last year, finding that passengers in a car don’t have to identify themselves.)