Also, wtf?
[Positivism] “is perhaps the most primitive legal theory, having evolved only slightly from the sort of justification that could be offered for following the demands of a tribal chieftain or general-turned-dictator. The theory promotes fear rather than respect.... The problem today in America, the greatest and gravest threat to personal freedom in this country, is that the positivists are carrying the day.”
To paraphrase poorly, I thought positivism dealt with the 'theory' that knowledge is scientific rather than mystical/religious.
i think there have been cases of a person on the street being asked for identification by the police. the person refuses to provide it, so the police arrests him.
i think cases and circumstances like this are good to define what police can make someone do legally, which really just defines the true scope of our negative rights.
the problem with the video above is the guy literally did nothing wrong and got assaulted by the cop.
he didn't stand up to him... he did everything he was legally allowed to... up until the guy decided it'd be fun to pull a tazer out and demand he put his hands behind his back for no apparent reason at all. following up with a totally unnecessary multiple tazering of the guy.
cops can't just assault people... that's illegal.
i think the justice system ruled otherwise.
here's one decent source (there's tons written on this):
http://www.wingedleopard.net/lucas/temp/akronlawrev245.pdf
In the creation of the Terry doctrine, [*257] Justice White stated in his concurring opinion, "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." n78 A majority of the Court reiterated the sentiments of Justice White without establishing the principle that a citizen need not respond to law enforcement questions as law. n79
In DeFillippo, police officers arrested the defendant for violating a Detroit city ordinance after he provided suspicious answers to a request for identification. n89 The Court scrutinized the decision of the Michigan Court of Appeals, which found that the statute at issue was unconstitutional. n90 However, the Court did not rule on the "stop and identify" statute's constitutionality. n91
The Court also failed to address the legitimacy of a "stop and identify" statute in Brown. n92 In that case, two police officers stopped Brown under circumstances that their experience indicated Brown was engaged in criminal activity. n93 Subsequent to the stop, Brown declined to identify himself. n94 The Court analyzed Brown's arrest by considering [*259] the reasonableness of his detention. n95 The Court reasoned that no evidence pointed to the presence of articulable suspicion, n96 making the initial detention unreasonable and leading to a reversal of Brown's conviction. n97
The United States Supreme Court also examined the constitutionality of a "stop and identify" statute in Kolender v. Lawson. n98 Law enforcement officers detained Edward Lawson on fifteen separate occasions over a period of almost two years under a California "stop and identify" law. n99 Lawson brought suit in California state court alleging that the statute was unconstitutional. n100 The state district court agreed. n101 The United States Supreme Court analyzed the statute under the void-for-vagueness standard, n102 finding that it failed to provide adequate enforcement guidelines to law enforcement. n103 Thus, given the dangers to individual liberties that this situation caused, the Court held the statute to be unconstitutional. n104
and the guy was acting pretty sketchy. had his hand going into his pocket right before he got tazed. not saying the cop was right, just saying he didn't do it with absolutely no reason.
I don't know why he was asking the guy to get out of the car and put his hands behind his back to begin with (I watched a little of the video on YouTube), but I'm not going to speak to police procedure without knowing more about the reasoning behind it. I'm not a cop or involved in law enforcement so I'm not going to pretend to be able to definitely judge the cop's behavior without knowing more.
and I don't really care that much about whether this was right or wrong or the cop was justified or whatever, so I'm just gonna leave it at that and not do any research.
uncertainty is good.
this country fucking sucks
III. Statement of the Case
A. Statement of the Facts
On May 21, 2000, Humboldt County Sheriff's Deputy Lee Dove responded to a report of an assault. n111 Dove located the vehicle described in the report and proceeded to investigate. n112 He found Dudley Hiibel standing outside the vehicle and his daughter seated inside of it. n113 As Deputy Dove approached the vehicle, he saw indications that, in his estimation, Hiibel was intoxicated. n114
[*262] Rather than question Hiibel regarding the report of domestic battery or his perceived intoxication, Dove first requested Hiibel's identification. n115 Maintaining his innocence, Hiibel refused this initial request. n116 Dove continued to make demands for identification. n117 At one point during the exchange, Hiibel placed his hands behind his back, challenged Dove's authority and requested that the deputy arrest him. n118 Dove asked Hiibel to cooperate, but Hiibel declined and Dove arrested him. n119 In all, Hiibel refused to produce identification a total of eleven times. n120
B. Procedural History
The County of Humboldt charged Dudley Hiibel with obstructing an officer investigating a crime, n121 a violation of the Nevada "stop and identify" statute, n122 and domestic violence. n123 The Justice Court of [*263] Union Township convicted Hiibel on the charge of delaying an officer n124 and dismissed the domestic battery charge, which had prompted Dove's initial investigation. n125 Hiibel appealed his conviction to the Sixth Judicial District Court of Nevada, arguing that his conviction violated the Fourth and Fifth Amendments. n126 The court rejected Hiibel's arguments and affirmed his conviction. n127
[*264] On further review, the Supreme Court of Nevada affirmed the judgment of the Sixth Judicial District Court in a divided opinion. n128 The majority rejected Hiibel's Fourth Amendment challenge. n129 The court also examined Hiibel's petition for rehearing, seeking explicit resolution of his Fifth Amendment claim, but denied it without opinion. n130 The Supreme Court granted certiorari on October 20, 2003. n131
C. United States Supreme Court Opinion
In a 5-4 decision, the United States Supreme Court affirmed the Nevada Supreme Court. n132 The Court addressed both of Hiibel's [*265] constitutional challenges to his conviction, n133 holding that Hiibel's conviction did not violate his Fourth Amendment n134 or Fifth Amendment rights. n135 The majority discussed previous cases in which the Court applied constitutional limitations to "stop and identify" statutes, n136 but found enough characteristics to distinguish those cases from the present case. n137
[*266] Justice Stevens submitted a dissent addressing potential Fifth Amendment concerns with "stop and identify" statutes. n138 He viewed the privilege against self-incrimination as preempting the exception authored by the Nevada legislature. n139 He reasoned that previous cases extended the privilege to encounters outside of criminal court proceedings, and that the privilege should apply to situations like the present case. n140 Justice Stevens addressed the State of Nevada's argument n141 that the statement was not testimonial. n142 Finally, Justice Stevens disagreed with the majority, reasoning that the Court's precedent viewed the word "incriminating" much more broadly than the majority. n143
[*267] Justice Breyer authored a dissent in which Justices Souter and Ginsburg joined. n144 He discussed Supreme Court precedent as requiring police officers to conduct traffic stops within specific limitations. n145 Justice Breyer reasoned that the Court should have relied upon this precedent and not changed a traditional traffic stop condition that does not require answers to a police officer's questions. n146