Tuesday, June 22, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: No right to remain silent

Supreme Court further devaluing the Bill of Rights

In a 5-4 decision which continues the progressive demolition of the once proud right of Americans to stand silent when braced by government agents, Justice Anthony M. Kennedy wrote for the slim Supreme Court majority Monday that arresting a citizen for refusing to provide his name when merely standing by the side of the road violates neither our Fourth Amendment protection from unreasonable searches, nor our Fifth Amendment right against self-incrimination.

The pernicious notion that standing silent constitutes the crime of "interfering with an officer" -- now enshrined in law in 21 states including Nevada and California -- does not violate the Bill of Rights because, "Obtaining a suspect's name in the course of a Terry stop serves important government interests," Justice Kennedy simpered.

"Terry" is the name of an earlier high court case -- Terry v. Ohio, 1968 -- in which the high court concocted out of thin air an earlier "exception" to the Fourth Amendment, allowing police the convenience of briefly stopping, questioning and even frisking citizens who they deem "suspicious," even when they fail to meet the standard of "probable cause" required for a formal arrest.

And now we see where such "baby steps" toward the police state eventually lead.

The case decided Monday dates from 2000, when Northern Nevada rancher Larry "Dudley" Hiibel, standing beside his parked truck, was approached by a law enforcement officer in Humboldt County after police received a complaint that a man had been witnessed striking a girl inside a pickup. The officer asked Mr. Hiibel -- whose daughter was sitting in his nearby parked truck -- for some proof of identification 11 separate times; in each instance, Mr. Hiibel refused, saying he had done nothing wrong.

Finally, Mr. Hiibel was arrested, convicted of resisting and obstructing an officer in the performance of his duties, and fined $250. (They even arrested Mr. Hiibel's daughter -- for complaining about his arrest.) Subsequent charges of domestic battery were dropped. Mr. Hiibel then appealed the conviction, saying an individual who is not suspected of or charged with a specific crime cannot be compelled to produce identification to the police.

By a 4-3 vote, the Nevada Supreme Court rejected Mr. Hiibel's request, ruling the Fourth Amendment right to privacy is "outweighed by the benefits to officers and community safety" by allowing police to force people to provide identification papers on request.

The U.S. Supreme Court has now agreed.

But by recognizing and now extending this made-up doctrine of "important government interests," the court has gutted the very soul of the Bill of Rights -- the underlying premise that protecting and defending the liberties of Americans is the highest law of the land, and the sole purpose which justifies the federal government's very existence.

"It's a travesty," comments Tim Lynch, director of the Project on Criminal Justice for the Cato Institute, who filed an amicus brief in the case. "We're walking away from these broad protections where we don't have to justify asserting our rights. Instead, the court is now creating loopholes, switching the burden around from the state to the citizen."

Mr. Hiibel was jailed for no more than stubbornness and silence. If police can demand our ID by the side of a public road, what about in our backyards ... or in our bedrooms?

The court now says residents of the 21 states with such laws no longer have a right to remain silent or a right to privacy; they must speak up even if it incriminates them.

Therefore, the remedy now lies with the Legislature: Nevada must repeal the police-state law -- NRS 171.123 -- which allows police to detain someone who refuses to identify himself.

Call it the "Larry Hiibel Act."