Identify yourself ... or else
Discussion is heating up over a proposed ordinance that would allow Ashland police to arrest those who don’t divulge their name and birth date to a police officer after they’ve been suspected of a law violation.
Some residents are concerned the ordinance could encourage racial and economic profiling and allow police to make unnecessary arrests. Others are concerned it would violate a state law that allows “passive resistance.” Some residents, according to police Chief Tighe O’Meara, have compared the proposed ordinance to fascism.
“It’s not a stop and frisk, and it’s not that we’re allowed to demand papers without cause, all of that is gross misinformation,” O’Meara said. “You just have to identify yourself, which can be a name and date of birth. ... If I catch you doing something illegal, you have to tell me who you are. If you’re not involved in any violation of the law, this proposed ordinance doesn’t apply to you.”
Under the proposal, those who fail to provide their name and birth date could be arrested on a Class C misdemeanor, which carries a maximum penalty of up to 30 days in jail and a fine of up to $1,250.
O’Meara said the law used to require people to identify themselves to police officers, but after the 2017 Oregon Supreme Court case Oregon v. McNally, a person accused of a crime may remain silent if practicing “passive resistance.”
“If we catch someone violating an ordinance like drinking alcohol or smoking marijuana in public ... that person is not required to identify themselves,” O’Meara said. “So, what we have is people who were caught violating the law just stare at the officer. This ordinance attempts to get us back to where we were a year ago, that if you are caught violating an ordinance that you must identify yourself.”
The Ashland United Church of Christ Justice and Witness team wrote a letter to the Ashland City Council stating it believes the ordinance would result in more arrests of transients and anyone “from a minority group outside of the mainstream white Ashland population.”
“The proposed ordinance would violate the spirit and intent of the Fourth Amendment of the U.S. Constitution by failing to protect Ashland residents from unreasonable search and seizure,” the letter said. “There are many reasons why a person may be unwilling to share their name and birth date to an officer if asked. It is their fundamental constitutional right to be ‘secure in their person, house, papers and effects against unreasonable searches and seizures’ — and this ordinance fails to provide that civil protection.”
The letter concluded with, “Arresting persons on issues regarding identity and documentation smacks of totalitarian states and is not a direction the city of Ashland should be considering.”
City Councilor Julie Akins said she’s not comfortable passing an ordinance that escalates a citation to a misdemeanor with potential jail time and an expensive fine.
“It seems like overreach to me,” Akins said. “I think the police chief and the police department have good intentions. ... My concern is that when you pass ordinances they sit on the books for a long time.”
According to City Attorney Dave Lohman, the intention is to return the rules to the way they were before the McNally ruling.
“Passive resistance” was originally discussed in terms of peaceful protesting, Lohman said. In the McNally case, the Supreme Court interpreted the state statute more broadly.
“It had nothing to do with constitutionality,” Lohman said. “It had only to do with interpretation of the exception of the state statute.”
“The ordinance puts us back in the position before McNally,” Lohman said. “If we didn’t pass this ordinance and a police officer sees someone on the street with a dangerous dog and wants to write a citation, they need the name and date of birth of the person. If that person doesn’t speak, then they can’t be cited. So, in effect, our ordinances don’t have any ability to be enforced if we don’t pass this ordinance.”
Before the McNally ruling, police officers could arrest or cite someone for interfering with a peace officer if they refused to identify themselves and had been accused of violating a law.
Lohman said it’s important for people to understand that the proposed ordinance wouldn’t allow a police officer to stop a person for any reason, but only if there is probable cause that the person has committed a crime or is going to commit a crime.
“There’s another misconception floating around that if a police officer suspects that somebody might be involved in a violation of law that they can ask for your name,” Lohman said. “That’s reasonable suspicion, which is a much lower standard than probable cause, and this ordinance is based on probable cause. This is a much higher level of suspicion that the police officer has to have.”
He said the person in question wouldn’t be asked for any identification documents, but the officer needs the person’s name and date of birth in order to issue the citation.
Lohman said when a crime is severe enough, a police officer can arrest a person, but most violations in Ashland aren’t that severe and just require a citation. He also said that a person’s right to remain silent about a crime is different from their right to remain silent about who they are.
The ordinance will come before the City Council at 7 p.m. Tuesday, May 21, at City Council Chambers, 1175 E. Main St.
Contact Tidings reporter Caitlin Fowlkes at email@example.com or 541-776-4496. Follow her on Twitter @cfowlkes6.