Protesters arrested for not giving police their names

By Sue Lindsay, Rocky Mountain News (Contact)

Published August 25, 2008 at 7:06 p.m.
Updated August 25, 2008 at 7:25 p.m.

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Two protesters were arrested Sunday for not giving their names to police, raising questions about when that constitutes a crime.

"Isn't this America?" asked Denver attorney John Holland. "Don't you have the right to protest? Don't you have the right to remain silent?"

Law-abiding protesters don't have to give their names to police, he said.

But police can "require" a person to give their name and address when there is a "reasonable suspicion" that a crime has been, is being or is about to be committed.

"Cops don't have any right to demand identification from people unless they have reason to believe a crime has been committed, and then you are obligated to give your name," said Denver lawyer David Lane.

"Otherwise they have no authority to do that," he said. "The cops can't just walk up to any old person on the street and demand ID and then arrest them if they say no. You are not allowed to lie to the cops but you can say, "Take a walk.'"

In this case, the two protesters whose faces were covered with bandannas attracted police attention by engaging in "suspicious" activity by ducking down and appearing to hide items behind or in public toilets near 7th and Lawrence streets as police passed by.

"Why didn't they see what they put behind the toilets before they asked them for their names?" Lane asked. "Those protesters may end up in federal court on a civil rights violation case and I'd be happy to represent them."

The duty to respond to a request for identification, Holland said, "depends on a reasonable suspicion of committing a crime, not that you're dressed in a mask and attending a demonstration. They better have something on the criminal side or it is a wrongful violation of your constitutional right to protest."

The two protesters, Austin Hunter and Frank Anello, were cited for violating a Denver city ordinance for giving false information to police. Anello also was charged with interference, again for not supplying his name.

Police listed them as "John Does", but it's unclear whether the two gave John Doe as their names or if police identified them as John Does after they refused to identify themselves.

Hunter told the judge, "I didn't give them any information at all."

But the probable cause statement says he gave his birth date and the name Rocky Hunter.

The two gave their names in court after the judge told them he couldn't set bond unless they identified themselves.

Telling police your name is John Doe or Bugs Bunny could be construed as giving false information, "but what that means to any reasonable person is that I'm not going to give you my name," said Mark Silverstein, legal director for the American Civil Liberties Union.

Refusing to give your name is not giving false information, he said.

A 2004 U.S. Supreme Court decision upheld the authority of police to demand identification upon "reasonable suspicion" of a crime, Holland said.

"But they can't just stop you for running breathlessly down the street," he said. "There has to be a reasonable suspicion of criminal conduct."

The court held that requiring identification under such circumstances did not violate Fourth and Fifth Amendment rights to be protected against unreasonable searches and self-incrimination, he said.

In the case of the two protesters,"police may say they are worried about threats to public safety or that something dangerous could have been put behind the toilet," Holland said.

"To hide something in a public place is not a normal behavior," he said. "You've got this tension in a situation like this, between their duty to protect the public from dangerous conditions and our constitutional right to protest."

If you're asked to give your name to police, what should you do?

Silverstein pointed out that many people wouldn't mind telling police who they are. But if you don't want to give your name, he said, "if you feel it is an intrusion, one approach is to ask if it is voluntary and if you are free to leave. If you are free to leave, then there is no need to answer the question."

In the case of the two protesters, he said, if the suspicion is what's behind the toilets and they find something, they can continue. If they don't find anything, then they don't need your name."

"Reasonable suspicion is central here," Holland said. "What is the conduct that is criminal? They can't 'suspect' everything that is not something they would do. If they're just targeting protesters and picking them up, First Amendment rights to protest are being violated."

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