In a case resting on the same Nevada law that was at issue in the Supreme Court’s 2004 decision in Hiibel v. Nevada, the 9th Circuit Court of Appeals has held that someone who runs away from approaching police can be found guilty of “obstructing” the police by denying them the opportunity to question him about his identity.

The 9th Circuit overturned findings by the U.S. District Court for the District of Nevada that the police lacked reasonable suspicion to detain the person in the first place and, even if they had a basis to detain him, lacked probable cause to arrest him. The decision signficantly undermines, in the 9th Circuit, the positive aspects and the limitations in the Supreme Court’s decision on police demands for ID in Hiibel v. Nevada, as well as the right to remain silent and the right to be free from unreasonable searches.

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A federal judge is hearing arguments today on whether the state of Texas has complied with the District Court’s earlier rulings and a decision of the 5th Circuit Court of Appeals that portions of the Texas state law requiring specific government-issued ID credentials as a prerequisite to voting are unconstitutional.

Today’s US District Court hearing in Corpus Christi is only the latest skirmish in a nationwide legal war between advocates for ID requirements and advocates for voting rights.

Even judges who (wrongly) question whether travel is a legally protected right must recognize that voting is a fundamental right protected by law. So we might expect that voter ID laws and litigation would squarely and unavoidably pose the question of whether the exercise of rights can be conditioned on possession of ID.

Unfortunately, many of the court cases challenging voter ID laws have not reached that question. And to the extent that Circuit and District court judges have reached that question, they have been bound by bad Supreme Court precedent suggesting that even substantial restrictions on the rights of people who neither have nor are able to obtain ID are generally Constitutional. That these laws deliberately and unarguably discriminate against people without ID is not enough to make them unconstitutional, the Supreme Court majority has indicated, unless they can be shown to have been enacted with some other discriminatory intent (such as to discriminate on the basis of race, political party affiliation, or some other protected attribute). Voter ID litigation has thus been forced to focus on discrimination in the application of ID requirements, rather than their inherent illegitimacy as a precondition for the exercise of rights.

In the run-up to this year’s Presidential elections, Courts of Appeals have found such unconstitutionally racist and/or partisan discriminatory intent behind voter ID laws in North Carolina (4th Circuit), Texas (5th Circuit, en banc), and Wisconsin (7th Circuit).  The election law project at the Ohio State University law school and the Brennan Center for Justice at NYU (which has been a friend of the court in some of these cases) have useful compendia of case documents and commentaries on these and other voter ID lawsuits.

These and other lawsuits challenging ID requirements to vote are continuing, but none of them are likely to be resolved by the Supreme Court until its current vacancy is filled. Any decisions by the Circuit Courts — even contradictory ones — are likely to be upheld by 4-4 vote of an equally divided Supreme Court, even if four Justices vote to review those lower court decisions. And in the meantime, any of those decisions not stayed by the lower courts themselves will presumably remain in force for the coming elections. Any application to the Supreme Court for a stay will probably also be denied by an equally divided court, as happened late last month with an application for a stay of the North Carolina ruling by the 4th Circuit.

So far, there don’t appear to be major conflicts between the Circuit Courts. Many state voter ID laws have been overturned.  But the Supreme Court deadlock makes it impossible for the key Supreme Court precedent in Crawford v. Marion County Election Board (2008) to be reversed, no matter how many lower court judges write opinions urging it be reconsidered, like this one by US District Judge James D. Peterson in July of this year:

Wisconsin’s voter ID law has been challenged as unconstitutional before, in both federal and state court. In the federal case, Frank v. Walker, the Seventh Circuit held that Wisconsin’s voter ID law is similar, in all the ways that matter, to Indiana’s voter ID law, which the United States Supreme Court upheld in Crawford v. Marion County Election Board. The important takeaways from Frank and Crawford are: (1) voter ID laws protect the integrity of elections and thereby engender confidence in the electoral process; (2) the vast majority of citizens have qualifying photo IDs, or could get one with reasonable effort; and (3) even if some people would have trouble getting an ID, and even if those people tend to be minorities, voter ID laws are not facially unconstitutional. I am bound to follow Frank and Crawford, so plaintiffs’ effort to get me to toss out the whole voter ID law fails. If it were within my purview, I would reevaluate Frank and Crawford…

The Indiana law upheld by the Supreme Court in its Crawford decision required any voter who wasn’t able to show acceptable ID credentials at a polling place on election day to appear in person at the county courthouse, within 10 days after the election, to execute a declaration regarding their inability to obtain ID.

By definition, none of these people have driver’s licenses. In many cases, lack of ID and lack of mobility form a vicious circle: People can’t drive or fly without ID, but they can’t get ID without traveling to the state or city where they were born to obtain a birth certificate or other prerequisite documents.  Many counties in Indiana and throughout the US have no public transit at all, while others have transit systems that serve only limited areas and routes. It’s hard to see how any court could characterize a requirement for non-drivers, especially those who reside in rural areas with no public transit, to get to the county seat during business hours (when friends or family who might be available to drive them are most likely to be working) within 10 days as only a “minimal” burden or restriction on the right to vote.

Not yet mentioned in any of these lawsuits, so far as we can tell, is the REAL-ID Act, which will make it even harder to obtain state-issued ID credentials and multiply the numbers of people disenfranchised by ID requirements for voting.

Voter ID case law, especially Crawford, doesn’t bode well for the right to travel without ID. If courts are willing to countenance such substantial restrictions on the acknowledged and clearly fundamental right to vote, they are likely to uphold even more onerous ID conditions on the exercise of rights that are less widely recognized, such as the right to travel.

Some people ask us, “What’s wrong with showing ID to police? If you are innocent and have nothing to hide, just show your ID, and you can be on your way.”

In the real world, however, showing ID can be a bad idea even if you are innocent. And the decision of the Supreme Court last week in Utah v. Strieff provides a case study in why you should never voluntarily identify yourself to police, and should avoid having any identification on your person if you don’t need it.

As we discussed when Utah v. Strieff  was argued in February, the sequence of events that led to this case was as follows: Police looking for drugs illegally stopped and detained a pedestrian without any articulable basis for suspecting him of any crime. While illegally detaining Mr. Strieff, the police asked (or demanded) that he identify himself, and he told the police his name.  The police ran a check on his name and found a record of a warrant for his arrest for a minor traffic violation.

Based on this warrant, the police re-classified the man already in their custody from “detainee” to “arrestee”, searched him “incident to his arrest”, and found — surprise — illegal drugs, which they had been hoping all along to find, but had lacked any legal basis to search for.

Strieff argued that he wouldn’t have been searched, but for the original stop and detention, which the police conceded was illegal, and therefore that the police shouldn’t be allowed to use the drugs they found as evidence against him. The Supreme Court upheld the legality of the arrest and search, despite the illegal stop and detention, and allowed the evidence to be used against Mr. Strieff.

Most of the commentary on the Supreme Court’s decision has focused on Justice Sotomayor’s dissent:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant….

We share Justice Sotomayor’s outrage. But what are the lessons we should take away from the majority opinion?

First, we can’t count on the police to tell us our rights. It’s not clear whether the police represented their “request” that Mr. Strieff identify himself as mandatory, or whether, while under police detention and not free to leave (and without having been read his Miranda rights), he knew that he had the right to remain silent and not give his name. But whatever happened, the Supreme Court majority doesn’t seem to have been much interested in these issues. Know your rights, and exercise them. By the time the police read you your rights, if they do so at all, it’s often too late.

Second, you should always exercise your right to remain silent when questioned by police — even if all they ask you is, “What’s your name?” Mr. Strieff’s detention would have remained illegal, and any evidence obtained by (illegally) searching him would have remained inadmissible, if he hadn’t told the police his name so that they could run a check for warrants.  This case shows that when police say, “Anything you say may be used against you,” that includes your name and any other identifying information you might disclose. Don’t tell police your name, and don’t voluntarily show them anything that might identity you. If you don’t need to have it with you, you are better off not having any ID on your person that might be found if you are searched on some other pretext.

Third, if you are tempted to think that you don’t need to worry because there isn’t a warrant out for arrest, think again. There are warrants out for millions of people in the US. Until they are busted, many people don’t know that there is a warrant for their arrest. Are you sure that every time you have ever gotten a traffic ticket, your check was received by the court and properly processed? If a bench warrant had already been issued by the time your payment was received and processed, was the warrant quashed? Was that fact reported to the FBI, and was the original record of the bench warrant removed from the NCIC database? Have you gotten your NCIC file recently to confirm this?  If not, there’s a non-trivial chance that there’s a warrant for your arrest, or that NCIC shows that there’s a warrant for your arrest. NCIC is riddled with errors, and the FBI has exempted it from the accuracy requirement of the Privacy Act. But the Supreme Court has said that an NCIC record of a warrant is enough to make an arrest legal, even if the data in NCIC is incorrect. You should always assume that NCIC might show a warrant for your arrest that any cop who runs a check on your name or ID will find. If you know this and still choose to identify yourself to police, you are practically asking to be arrested. If police stop or question you, they are looking for an excuse to arrest and/or search you. The only way — and the easy way, fortunately — to avoid giving police the basis to arrest and search you that they are looking for is not to tell them who you are and not to show them any ID.