Archive for the ‘Discrimination’ category

Must You Identify Yourself to Police?

August 4th, 2016


In the wake of the recent (August 2016) shooting death of Korryn Gaines, a number of people have posed questions to me about 1) the “sovereign citizens” movement, and 2) whether you are required, by law, to identify yourself to the police.

As to the sovereign citizens question, I’ll point you here, as it’s a very broad topic, and there are lots of takes on it, but this one I find to be very insightful:

A number of websites address the question of “Must you identify?”, and several of them, not surprisingly, are posted by sovereign groups, their adherents, or related folks who propound various “philosophies.”

A lot if it’s blather, pseudo law.  For example, from one, regarding police cars:  “Their car lights and sirens are to only go on if there is an investigation.  Therefore they must identify to you the investigation, and your part in it.”  In fact, their lights and sirens have nothing to do with an investigation; they’re there for safety reasons, and when they can – and when they must – turn them on is governed by state law, so it varies by state.  (E.g., some states require them when they exceed the speed limit, if they’re going against traffic lights, etc.)

Some of the case law they are citing is outdated and has been superseded or modified by subsequent cases.  Some of it is just people reading the law to say what they want it to say.  Most importantly, though, much of the law they are citing is taken completely out of context.  That’s the whole reason we lawyers have to give the citation when we quote the law – so others can review that we’re using it correctly.

While you are not required under federal law to show identification to an officer – because by law, a citizen isn’t required to have any “papers” – you are required to identify yourself.  (You can be required to carry relevant ID when driving or when traveling on a commercial airline.)  If you have no ID, they’re generally supposed to take you at your word unless they have an “articulable suspicion” (probable cause) for not doing so.  The Constitutional questions implicate the Fourth (Search & Seizure), Fifth (Self-Incrimination), and Fourteenth (Equal Protection and Due Process) Amendments.

As an example of taking the law out of context (or perhaps, just not knowing how to read and understand it), one site attempts to address the question of whether you can be arrested for “failure to identify.”  The key point of what they claim is this, which they claim summarizes a Supreme Court case:

Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.

What the Supreme Court actually said in Kolender was related only to a specific law in one state, California:

Appellants stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation.  The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government.  As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.  See Lanzetta v. New Jersey, 306 U.S. 451 (1939). Section 647(e), as presently construed, requires that “suspicious” persons satisfy some undefined identification requirement, or face criminal punishment.  Although due process does not require “impossible standards” of clarity, see United States v. Petrillo, 332 U.S. 1 (1947), this is not a case where further precision in the statutory language is either impossible or impractical.

We conclude § 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.  Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

Kolender v. Lawson, 461 U.S. 352 (1983) (emphasis added).

So, the Court does not make a ruling at all on whether someone can be required to identify.  Instead, it is a question about whether a California law, as it was written, was unconstitutional.  Anything else they say in the discussion is “dicta” – side chatter.

What they’re taking out of context is references to a landmark case (which is still our touchstone and guideline case for stops and searches), Terry v. Ohio, 392 U.S. 1, 1968.  Terry is actually still the basic rule, regarding searches and “stop and frisk.”  Recent cases, however, have “trimmed” the protections provided by Terry.  [My software says that other courts have referred to Terry 38,856 times, reaffirming it 6,619 times, and pointing out its limitations or differences from other rules 368 times, but otherwise just pointing to it to say, “This is the rule.”]

You can read the whole case in your spare time:  Kolender on Google Scholar

Generally speaking, though, the Supreme Court has upheld state laws requiring ID, so long as they are Constitutional.  In Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004) [a case out of Nevada originally, where a man was asked 11 times for his name, and refused 11 times], the Court said:

The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop.  The reasonableness  of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.”  Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).  The Nevada statute satisfies that standard.  The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.  The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.  On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637, or its location, Dunaway, supra, at 212, 60 L. Ed. 824, 99 S. Ct. 2248.  A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)

For more:  Hiibel on Google Scholar

So, it’s important to know the specific rule(s) in the state where you are.

Finally, with regard to the discussion above about the Fifth Amendment and the right against self-incrimination, it is important to recognize that the Court has recently ruled that to maintain your right against self-incrimination – that is, the right to not answer questions – under the Fifth Amendment to the U.S. Constitution, you must affirmatively state that you are exercising that right.  Therefore, if you do not wish to answer questions, in order to stop the questions and prevent your refusal from being interpreted as an implication of guilt, you should state, “I am exercising my Fifth Amendment right not to answer questions at this time.”  See Salinas v. Texas, 133 U.S. 2174 (2012).

For more:  Salinas on Google Scholar

It’s also important to understand that the Hiibel case was decided 5-4, which means if heard today, it would have been a tie, and whatever the lower court had decided would have remained the rule.

Are you exhausted?

May 7th, 2013

Administrative Remedies

An important issue in many employment litigation situations – especially discrimination claims – is “exhaustion of administrative remedies.”  The basic principle coming into play here is that you can’t sue someone for not fixing a problem if you didn’t let them know it existed, and allow them an opportunity to correct it.

While it may be frustrating, when subjected to harassment or discrimination, to go through the motions of requesting that something be done about it, especially if you feel that it will do no good, because you know the responsible parties, etc., it is important, because not following these steps could result in your case being thrown out down the road.  In some cases, you can be “excused” from some reporting requirements, such as if the person you’re supposed to report it to is the one responsible for the harassment, and there is no alternative person designated.  However, you generally must make some effort to give the employer an opportunity to correct the problem before you “go outside.”

Generally speaking, employers are required to post policies and procedures on discrimination and harassment in a conspicuous, common place where employees gather or pass, such as a locker room, a lunch room, or the area around a time clock.  Often, this information is included in the large workplace posters that tell you where to report accidents or injuries, notify you of the minimum wage, etc.

If there is a published internal process or procedure for filing a complaint or reporting an incident, follow it.  If there is not a published procedure, and you don’t know to whom you should report – especially if the most obvious “next person in charge” is the one you’re complaining about – contact your HR department or representative and ask if there is a procedure you’re not aware of.  If not, ask them what you should do.  Sometimes, they’ll simply require that you make a written statement.  Sometimes, they will allow the statement to be anonymous, but their ability to investigate is limited in that case.  (Anonymous complaints are not very helpful in direct harassment or discrimination claims, because you probably can’t hide who you are, and if you do, it’ll be hard to prove later that you tried to make a complaint.)

In the case of hostile workplace claims, however, such as in the case of posting of lewd pictures, or offensive workplace conversation, you may be able to lodge a complaint with HR, and still keep it confidential from the offending employee(s).


If you have a union, or some other organization that acts as your representative, you generally must follow their grievance procedure before you can file an outside complaint, such as with the U.S. Equal Employment Opportunity Commission (EEOC).  Contact your floor rep or shop steward for information.  If you have a copy of the shop contract, it’s probably in there.

Then What?

Once you have exhausted your internal remedies, you must then file with the appropriate agency before you can proceed to litigation.  The hope, of course, is that you’ll be able to resolve it there – through mediation or conciliation – or the agency will compel the offending party to change their policies, etc.  This serves the secondary purpose of putting the agency on notice of where problems are arising, since they’ll know, even if you don’t, who’s had other complaints lodged against them.  In North Carolina, the most common agencies for reporting at this stage are:

  • North Carolina Department of Labor – for Wage & Hour and OSHA retaliation complaints, as well as Workers Comp retaliation complaints.*
  • Office of Administrative Hearings (OAH) – for contested cases from many city, state, and county agencies, as well as many public colleges and universities.
  • OAH Civil Rights Division – for some agencies that don’t have an internal complaint process.
  • U.S. Equal Employment Opportunity Commission (EEOC) – for complaints of violation of federal discrimination and harassment claims (race, gender, religion, disability, etc.), such as

*The Department of Labor handles retaliation complaints for Workers Comp, but does not handle actual Workers Comp claims; those are handled through the Industrial Commission.

This list is not exhaustive, just the most common.  Some agencies have their own EEO agencies internally, such as the U.S. Post Office.  Most of these agencies have a prescribed time during which they will perform a preliminary investigation.  In some cases, they will pursue remedies on their own.  In most cases, when they have completed their investigation, they will issue a letter notifying you that you have a right to sue.  At that point, there is usually a “clock” that starts running, and you must file your lawsuit within that time window, or lose the right to sue on certain claims.

It is a good idea to seek out an attorney at the point where you make an external complaint, if you haven’t already done so.

Whether or not you hire an attorney at this stage, it is important that you keep good records of what you reported, to whom, and when.  Note what, if anything, was done, and keep any responses you receive via e-mail or written correspondence.  Keep any agency letters (including envelopes – see my other blog post The Envelope, Please), and keep a good journal.