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Tuesday, February 05, 2002
Copyright © Las Vegas Review-Journal

Court rules jailing people for not identifying themselves unconstitutional

A federal appeals court has declared unconstitutional two state laws that allowed people to be jailed for simply refusing to give their names to authorities.

In a case in which a Las Vegas gambler was jailed overnight in Laughlin for refusing to identify himself to a Gaming Control Board agent, the 9th U.S. Circuit Court of Appeals on Monday ruled such laws violate the Fourth Amendment protection against unreasonable searches and seizures.

Las Vegas attorney Robert Nersesian, who argued the case for professional gambler James Carey, said he hoped the decision would put the state and casinos on notice that holding winners hostage is no longer acceptable.

"In briefs I've used the term `kidnapping,' and my opponents have seized on it," said Nersesian, who has represented a number of professional gamblers in card-counting and jackpot disputes. "But if you take someone against their will into a room where you're in complete control without a license to do so, how can you tell me that's not kidnapping?"

In June 1996, Carey was playing blackjack at the Ramada Express in Laughlin. According to the opinion, hotel officials thought Carey might have been using an illegal card-counting device in his shoe and called Gaming Control Board agent Gregory Spendlove.

After reading Carey his Miranda rights, Spendlove asked Carey to identify himself. Carey refused and demanded to see an attorney, which Spendlove did not allow.

Nersesian said professional gamblers such as Carey have a good reason to not identify themselves. "It's because of the Griffin book," he said, referring to a privately compiled list of gamblers routinely excluded by casinos.

Carey had to remove his shoes so Spendlove could search for a card-counting device. Although Spendlove didn't find anything, he arrested Carey for refusing to identify himself. After a night in jail, neither the attorney general nor the district attorney filed charges against Carey.

When Carey sued, U.S. District Judge Philip Pro ruled the arrest was justified and the state and Spendlove were immune from being sued.

However, federal Judge Robert Boochever ruled, "there are two 9th Circuit cases directly on point ... which unambiguously hold that compelling an individual to identify himself (before an arrest) violates the Fourth Amendment."

Although the appellate court agreed the state and the control board are immune from being sued by Carey, it found that a "reasonable" law enforcement officer would have disregarded such an obviously unconstitutional state law. The ruling holds Spendlove solely liable for damages if the case goes to trial.

Chief Deputy Attorney General Kimberly Rushton, who argued the case for the state, was out of the office Monday and could not be reached for comment. Chief Deputy Attorney General Keith Kizer said he was troubled by the court's decision to leave Spendlove liable.

"If federal judges can't decide this issue, I'm not sure how a single board agent can decide this issue," he said, referring to other rulings disagreeing with the 9th Circuit.

Nersesian cautioned that the decision's effects are limited only to certain situations. "This ruling does not apply to traffic stops, because driving is a privilege and they can require you to show your license to exercise that privilege," he said.

Spendlove's supervisor, Control Board Chief of Enforcement Keith Copher, declined comment on the decision because it was still being reviewed by his staff.