Recent events have focused attention on the asymmetry of police demands for ID:

Government agents demand that ordinary citizens provide evidence of our identity, even when we are exercising rights — such as traveling by common carrier — that don’t depend on our identity. But those same government agents typically refuse to provide the same sort of evidence of their identity, even when they are asserting claims to authority that depend on their identity and status as law enforcement officers.

Masked, armed gangs dressed in the mismatched assortment of military-surplus clothing that characterizes “militias” in failed states are snatching people off the streets of US cities and towns and taking them away in unmarked vehicles, some with no license plates.

Meanwhile, elected politicians and their family members were recently assassinated in their homes by a masked individual in a police-like costume who arrived in a police-like vehicle with flashing blue lights.

The law doesn’t require us to obey the orders, or refrain from defending ourselves or others against, anyone who claims to be an officer of the law. But as the law stands, whether we submit or resist, we do so at our own peril.

Any kidnapper or home invader could, and some do, stencil “POLICE” on their body armor and  shout “Police!” before breaking down doors or dragging people away. Rent-a-cops often dress and carry gear designed to make them appear as much like police as possible. Convincing movie-prop badges are available online or in costume and fetish shops.

In these circumstances, verifying the identity and claim to authority of people who might or might not be police can be a matter of life or death. If they aren’t police, and we go along, we could lose our chance at self-defense or escape. But if they are police, they might shoot us if we try to resist, escape, or help others to do so. If we survive the initial encounter, we might be charged with assaulting an officer — a charge that often leads to beatings or worse by police and jailers, even before a defendant makes it to trial.

18 US Code § 111 makes it a Federal felony to “forcibly assault, resist, oppose, impede, intimidate, or interfere with” any Federal law enforcement officer. But what if you can’t tell if an apparent kidnapper or home invader is a Federal law enforcement officer? And what evidence of their identity and status is sufficient to establish their authority and your duty not to resist or impede them?

In US v. Feola, 420 U.S. 671 at 686 (1975), the Supreme Court noted that actions that might otherwise violate this statute might not be criminal in certain circumstances:

The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.

What does it mean for an officer to “identify himself”? And in what circumstances might it be “reasonable” to doubt whether someone who claims to be a cop really is one?

The most relevant precedent on these questions is in US v. Morton, 999 F.2d 435 (9th Cir., 1993). A plainclothes police officer, Sorukas, mistook Morton for another person, chased him down on a street in  high-crime neighborhood, grabbed him, and tried to handcuff him, yelling “Police!” and “I’m a cop.” An eyewitness, Bingham, saw the scuffle and heard these claims, but  thought that either of the two might or might not be a police officer. In this situation similar to what is happening today, the court found as follows :

We have recognized a defense to assaulting a federal agent based on the defendant’s honest mistake of fact or lack of knowledge that the victim was a law enforcement officer…. [A]ssuming Morton could believe that he was being attacked by an unauthorized stranger…, the evidence otherwise was such that a jury could have viewed Morton’s efforts to escape as reasonable, thereby warranting the self-defense instruction….

Where a federal agent has failed to identify herself prior to the assault, and her identity or authority was not otherwise apparent, a self-defense instruction will most likely be necessary. [Collecting cases.] These cases offer little insight, however, on the question whether a self-defense instruction is needed when agents undoubtedly announced their identities but the defendant nevertheless allegedly doubted their authority….

[W]e find the evidence here sufficient to warrant a self-defense instruction. There was enough evidence from which the jury could have inferred that Morton mistook Sorukas to be an unauthorized assailant. Specifically, Bingham testified that he was skeptical about Sorukas’s claim of authority…. Under the circumstances, Morton arguably need not have looked at his nondescript pursuer more than once before he could claim self-defense in seeking to escape….

If reason remains to question the officer’s authority despite his oral identification, then a self-defense instruction is appropriate. This is true even if evidence of the defendant’s doubt is weak, inconsistent, or of questionable credibility–so long as it is more than a scintilla.

This might seem favorable case law. But the problem this leaves, as commenters on recent events have noted, is that someone who defends themself or others against police who fail to provide evidence of their identity and status as law enforcement officers will be  “vindicated”, in the best case, only after a tortuous jury trial for assaulting Federal officers.

This decision makes clear that unsubstantiated claims to be police aren’t necessarily sufficient evidence of authority. It still falls short, however, of establishing what, if any, evidence of identity as a police officer would be sufficient to make doubt unreasonable.

We think it’s reasonable to apply the same standards of identity verification to claimed police as police have indicated, by their policies and procedures, that they believe to be sufficient to establish the identity of civilians. If anything, police should be held to higher evidentiary standard than civilians in establishing their identity and status, since they are claiming special rights and authority that depends on that status.

If people come to your door who claim to be police, do unto them as they do onto others, and as they have shown they believe to be necessary to allay doubt as to someone’s ID.

Ask them to hold their photo ID up to a window, and then show their face (removing their mask if they have one on, as travelers are required to do for the TSA’s ID checkers) so that you can verify that the photo matches their face. Real police carry photo IDs, even if they are reluctant to show them. If they won’t do so, it’s reasonable to doubt that they are really police. Bar the door and call 911 to report police impersonators.

There’s no way to tell by inspection if a police ID or badge is a forgery. We know of no police agency that publishes specifications for authenticating its officers’ IDs, and fake police photo IDs are as readily available as fake police badges. So your next step should be to call the agency, at  its published number (not the number on the face of the ID, which might be answered by an impersonator’s accomplice)  to verify that there is an officer with that name, matching that description, who is at your location. If you can’t verify their identity, don’t let them in. Bar the door and call 911 to report suspected police impersonators.

In general, you shouldn’t open the door to police, even if you can verify their identity, unless they have a warrant. If they claim to have a warrant, have them put a copy under the door or hold it up to the window so you can read it and take a picture of it.

Warrants are trivially easy for home invaders to forge. To protect yourself against forgery, call the published phone number for the court that supposedly issued the warrant, ask for the chambers of the judge who supposedly signed the warrant, and verify that the warrant is real and that the judge actually signed it. If you can’t verify that the people at your door are showing a real warrant — even if they are real police — tell them to leave. If they won’t leave, call 911 and report them for trespassing.

We aren’t required to obey anyone who claims to be a cop, or stand aside while they carry out what appears to be a kidnapping or home invasion. But if they really are a cop, we shouldn’t have to risk our lives to verify that fact.