Tuesday, March 23, 2004

Dudley's Day In Court

Dudley Hiibel had his day in court today, and there are a couple of articles about the oral argument here and here. The best line of all comes from Dahlia Lithwick, who responds to Scalia's contention that "suspicious" people have the obligation to "come forward" and assist the police:

We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves—unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward—to use Scalia's formulation—and cooperate. This idea that the "suspicious people" (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police's historical treatment of them. It's a shame Justice Clarence Thomas doesn't speak today. One can imagine that he has at least some idea of what it means to hold "suspicious" people to a different constitutional standard.

Heh, heh, heh.

By the way, Dudley's going to lose this one. The whole case turns on whether you look at it from the point of view of the cop or the stopped citizen -- "is it reasonable to refuse to give your name?" vs. "what business did the cop have asking for the ID?" -- and at least five justices are looking at it as a "what's so bad about giving your name" case. That will be a shame. The Terry doctrine is that even if there is no probable cause to think a crime is being committed, a cop can do a quick, cursory search of a citizen when the cop has "reasonable suspicion" that something is up -- but the justification for Terry was that the cop had the right to protect his own safety. Officer Dove had the right to pat down Dudley, check the truck for weapons, look at the ground to see what was there. But he would not have been safer if he had known Dudley's name.

 1:12 PM

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