This was generated due to the conversation in the comments on the previous post.

OK, first let’s address Terry v. Ohio, 392 U.S. 1 (1968). That decision focuses on the authority of an officer to detain someone who the officer has a reasonable, articulable suspicion may be involved in criminal activity. It is silent as to the authority to identify who the person is. It certainly does not state that an officer is justified in “requiring a suspect to disclose his or her name” as Sam asserts.

Here, there is no question that the officers had grounds to detain Espinosa. The standard of proof required is reasonable suspicion, and they met that standard. That standard remains below the standard of probable cause, which is required for an arrest.

Next, Sam is correct on the basic issue of Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177 (2004). Sam said that Hiibel “held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement.” (emphasis added). That’s correct, but Sam is missing one key factor. Hiibel requires that the state have a statute authorizing the officer to require identification. Nevada has such a statute, Texas does not.

These statutes are called “Stop and Identify” statutes. In Nevada, the law states that “Any person so detained shall identify himself or herself. . . .” Nev. Rev. Stat. Ann. § 171.123. Texas has no such law, and contrary to Sam’s assertions, the case law in Texas is not “all over the map,” but are remarkably consistent, and uniformly against his position.

“When section 38.02 was enacted with the recodification of the Penal Code in 1973, it originally criminalized providing a false identity and failing to identify oneself to a police officer when the person had been ‘lawfully stopped.’ The legislature narrowed the statute in 1987 to apply only in situations when the person had been ‘lawfully arrested.’ In 1991 the legislature struck a middle ground—it criminalized failing to identify oneself when lawfully arrested but also criminalized giving a false name when lawfully detained or lawfully arrested. The statute was amended in 1993 and 2003, but the legislature did not alter the basic framework—it kept the distinction between “lawfully arrested” and ‘lawfully detained.’” Overshown v. State, 329 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (internal citations and footnotes omitted).

The law was changed based on a number of factors. First, in Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court held that Texas could not just stop someone and require that they produce identification. This was followed by a ruling that “Individuals stopped by the police merely on the basis of suspicion, have a right not to be arrested, a right to remain silent, and, as a corollary, a right not to be arrested if they choose to remain silent.” Spring v. Caldwell, 516 F. Supp. 1223, 1230 (S.D. Tex. 1981), rev’d on other grounds, 692 F.2d 994 (5th Cir. 1982).

So far the State of Texas has declined to expand the authority of police to arrest someone who choses to remain silent when asked for identification while detained.

Another case also spells it out clearly. “When appellant refused to give [the officer] his name, he was not under arrest. Therefore, subsection (a) does not apply . . . Under these facts, appellant did not commit the offense of failing to identify himself. Further, the officers provided no evidence at the suppression hearing to justify a warrantless arrest, such as a showing that appellant was about to escape. Thus, the trial court properly determined that appellant was illegally arrested.” Crutsinger v. State, 206 S.W.3d 607, 610 (Tex. Crim. App. 2006). Note that in this case, Crutsinger was suspected of capital murder, so Sam’s argument about the severity of the offense just flew out the window.

Sam then claims that “obstructing is called interfering with the duties of a public servant.” It’s a novel approach and creative, but in accurate. Thus far there has not been a single appellate case where this has been brought up, probably because § 38.15, Interference with Public Duties, Tex. Pen. Code Ann. provides that speech only is not an offense and this would prohibit a successful prosecution. See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000, no pet.).

He may also want to look at Adams v. Praytor, No. Civ.A. 303CV0002N, 2004 U.S. Dist. LEXIS 12383, 2004 WL 1490021 (N.D. Tex. July 1, 2004). In that case, one of the officers demanded identification of Adams, who refused to provide it since he was not under arrest. The officers then, according to Adams and several witnesses, threw Adams to the ground, breaking his nose and causing other injuries. The officers attempted to charge Adams with Failure to Identify, but were told by their lieutenant that the facts did not meet the elements of the offense, that Adams did not have to identify himself unless he was under arrest. They then tried charging Adams with Interference with Public Duties, for which he was found not guilty. Opps. In the subsequent lawsuit, the officers were denied qualified immunity by the court, stating:

“Defendants correctly concede that no probable cause existed to place Adams under arrest for Failure to Identify. The Texas Penal Code requires only a person who has been lawfully arrested to provide his name, address, or date of birth to a police officer who requests identification. Indeed, at the time of Adams’s arrest, the Supreme Court had held the application of Penal Code § 38.02 unconstitutional in the absence of reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct. Officers Wright confirms that he initially advised Adams that he was not under arrest, and conditioned the subsequent arrest on Adams’s refusal to produce identification. Accordingly, Defendants had no probable cause to arrest Adams for Failure to Identify.” Adams v. Praytor, 2004 U.S. Dist. LEXIS 12383, 16-17, 2004 WL 1490021 (N.D. Tex. July 1, 2004) (internal citations omitted).

This is clear, black letter law. It doesn’t matter what gyrations are thrown in, it doesn’t change the facts, nor will it change the outcome. Both the city and the county, if they’re smart, will settle with Ms. Espinosa. It’ll be cheaper than a trial. Especially when her attorney points out that by forcing her to destroy a portion of the video, there was arguably grounds to charge the officers with Tampering with or Fabricating Physical Evidence, § 37.09, Tex. Pen. Code Ann., a third degree felony. I would almost bet that Shurka thought of this, although I doubt that Simpson did (but I could be wrong). I don’t remember if Simpson was still a Deputy Chief in Dallas when their officers pointed a dash cam away so it would not film the officers beating an evading suspect.