Narrowing the damage done by its 2015 ruling in the Identity Project case of Mocek v. Albuquerque, the 10th Circuit Court of Appeals has ruled that it is clearly established law that, even in a state such as New Mexico that requires individuals suspected of crimes to identify themselves to police on demand, a valid demand for ID must be predicated on “reasonable suspicion” that an individual has committed some other predicate crime.

The plaintiff in the latest 10th Circuit case, Albert Jerome Bustillos, is an independent journalist and YouTuber. He was wrongly arrested for video and audio recording from a public street outside an oil refinery in Artesia, NM, on September 11, 2018.

Like Mr. Mocek, who was falsely arrested for recording TSA checkpoint staff at the Albuquerque airport, Mr. Bustillos was wrongly charged under a New Mexico law that makes it a crime to “conceal” your identity if you are lawfully stopped by police.

The Supreme Court has — wrongly, we believe — upheld state laws that require individuals to identify themselves verbally by name to police, but only if police already have an objectively reasonable, articulable basis to suspect them of some specific crime.

We think these laws are facially unconstitutional because they violate the Fifth Amendment right to remain silent. If you aren’t lawfully detained by police on reasonable suspicion of having committed a crime, you can (and generally should) entirely ignore any questions from police. If you are suspected of a crime, that is all the more reason why you can (and generally should) assert your Fifth Amendment right to remain silent.

Not all states have “stop and identify” laws. California, among others, does not. Even in states that have such laws, they require only verbal self-identification. They do not require anyone to possess, carry, or show ID credentials or any other evidence of their identity.

All of this is, we think, clearly established Constitutional law. But courts more eager to protect police against accountability than to protect the rights of their victims have sometimes strained, after the fact, to come up with reasons that police might reasonably have suspected those they stop of crimes — even if in fact the police had no such suspicion.

Like Mr. Mocek, Mr. Bustillos was eventually found not guilty of all of the charges against him, and like Mr. Mocek he then sued the police for violating his civil rights.

In Mr. Mocek’s case, a three-judge panel of the 10th Circuit Court of Appeals found, “[W]e doubt that there was probable cause to arrest Mocek merely for failing to show documentation proving his identity in this case. Nonetheless, the officers are entitled to qualified immunity because even assuming they misinterpreted New Mexico law, their mistake was reasonable…. A reasonable mistake in interpreting a criminal statute, for purposes of determining whether there is probable cause to arrest, entitles an officer to qualified immunity.”

In finding the suspicions of police at the airport to be reasonable (even if based on a mistaken understanding of the law), the court said that, “We emphasize the uniquely sensitive setting we confront in this case,” as though police actions at airports should be held to a lower standard because airports are “uniquely sensitive”.

In Mr. Bustillos’ case, a different panel of the same court found that the police were mistaken in their beliefs about the law, the location of the property line, and Mr. Bustillos actions. His video showed that he never crossed from the public right-of-way onto the refinery’s property or went past a “No Trespassing” sign. The court also found that none of the ex post facto justifications offered by the police constituted a “reasonable” basis to have suspected Mr. Bustillos of any crime.

(One of the three judges on the panel dissented, inventing hypothetical suspicions about trespassing which, even if they weren’t the actual reasons the police arrested Mr. Bustillos, might hypothetically have given the police a “reasonable” mistaken basis for the arrest.)

The police tried to “bootstrap” their demand for Mr. Bustillos to identify himself by telling him on the spot, and later telling the court, that they suspected him of concealing his identity. But as Mr. Bustillos himself explained clearly, explicitly, and correctly to the police when they stopped him, that isn’t sufficient. He could only be required to identify himself if the police already had a reasonable articulable basis to suspect him of some other crime.

The Court of Appeals  found that a demand for a suspect to identify themselves must be supported by reasonable suspicion of some other crime,  and that this was already  clearly established law that the police should have known. That finding of “clearly established law” should make it harder for police in states in the 10th Circuit with “stop and identify” laws to get away with baseless demands for pedestrians to identify ourselves.

The decision in Bustillos v. Artesia leaves intact  the earlier ruling in Mocek v. Albuquerque, with its implication that it is “reasonable” for police to regard anything we do at a TSA checkpoint as inherently more suspicious than if it occurred anywhere else. But by explicitly distinguishing the lesser “unique sensitivity” of the oil refinery where Mr. Bustillos was arrested from that of an airport, the latest decision appears to narrow, or at least contain, the damage done by this “airport exception” to the Constitution.

As is usual in such cases, this decision denying the police “qualified immunity” from liability is only a preliminary to a trial or verdict on the merits. We thank and congratulate Mr. Bustillos and his attorneys for standing up to the police and standing up for all our rights. We wish them success as the case moves forward on remand in the District Court.