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FCPC ALERT #2005-1
www.FairfaxCountyPrivacyCouncil.org
Originally Published on
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Happy New Year! This message is intended for members of the Fairfax County
Privacy Council, and anyone else who might be interested in advancing privacy
in
Privacy Notice: All communication from the Fairfax Privacy Council is sent using
blind carbon copy ("BCC") format for your security and privacy.
ALERT ITEM SUMMARY:
1. Delegate Orrock
introduces Orwellian “STOP-ID-CONFESS” law to increase police powers (HB1643)
2. Flurry of editorial support for photo-red light
surveillance in VA
3. FCPC quarterly public meeting
4. Pro-privacy post-holiday gift ideas
5. Privacy Quote: “underage drinking”
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1. Delegate Orrock introduces Orwellian
“STOP-ID-CONFESS” law to increase police powers (HB1643)
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In what may be the most aggressive attack on the Fifth Amendment since the
Supreme Court’s decision in Hiibel v. Sixth
Judicial District Court of Nevada (2004), Virginia state Delegate Robert
(“Bobby”) D. Orrock, Sr. (R-Spotsylvania/Caroline
Counties, http://dela.state.va.us/dela/MemBios.nsf/a7b082ef6ed01eac85256c0d00515644/54fbf875f12cf50485256dfd0053343b?OpenDocument,
Del_Orrock@house.state.va.us
, 540- 891-1322) has introduced a bill in Virginia’s House of Delegates called
HB1643 (see http://leg1.state.va.us/cgi-bin/legp504.exe?ses=051&typ=bil&val=hb1643&Submit=Go%20-)
that would end Virginians’ right to remain silent and require any person
detained by police to both “…identify himself and give a reasonably credible
account of the lawfulness of his conduct and purposes.” The text of
HB1643 can be found at http://leg1.state.va.us/cgi-bin/legp504.exe?051+ful+HB1643,
and the bill’s aim is to amend Virginia’s obstruction of justice statute (Va.
Code § 18.2-460) such that “remaining silent” would be considered a crime
called “obstructing justice,” a class 1 misdemeanor punishable by “…confinement
in jail for not more than twelve months and a fine of not more than $2,500,
either or both” (see Va. Code § 18.2-11 at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-11).
On
On the morning of 23 December 2004, FCPC contacted Spotsylvania County
Commonwealth Attorney William Neeley (bneeley@spottsylvania.va.us,
(540) 582-7148, http://www.spotsylvania.va.us/courts/commonwealthatt);
Mr. Neeley acknowledged that he had a hand in the
drafting of legislation and advised that HB1643 was in response to a recent
Supreme Court decision and the bill would make it a crime to “lie about your
ID.” Upon further questioning, Mr. Neeley
admitted that the bill might go further than that and that he would have to
review the bill before making definitive statements about the scope of the
bill. Mr. Neeley mentioned that the Virginia
Association of Commonwealth Attorneys has not yet reviewed or taken a position
on the bill.
When FCPC asked Mr. Neeley as to what incident of
incidents prompted the drafting of HB1643, Mr. Neeley
said that the bill was in response to difficulty of the police to prosecute
people for sponsoring or holding parties in Spotsylvania at which their was
“underage drinking.” Neeley stated that when
officers come upon these parties that some persons have remained silent and
“folded their arms” in response to police questioning.
HB1643 goes well beyond what the Supreme Court allowed in Hiibel
v. Sixth Judicial District Court of Nevada (2004) - see http://www.epic.org/privacy/hiibel/default.html
- all that was upheld by the court (5-4) was an NV state statute (upheld by the
Nevada Supreme Court, 4-3) requiring a person to "state his name" in
a Terry stop upon penalty of a mere ***$50 fine*** for failing to comply.
Hiibel overturned what was thought by many to be
settled case law about the right to remain silent. Even then, the Supreme
Court's ruling in Hiibel, as described in EPIC's legal analysis, left the door open for a legitimate
Fifth Amendment refusal to comply if someone had a reason to hide their name -
like a wanted bank robber - apparently a **bad guy's exemption** - the U.S.
Supreme ruled in the case of Hayes v. U.S. (390 U.S. 85, 1968) that because it
would be incriminating, a criminal cannot be required to register a gun (as
federal law requires for so called "class 3 weapons" like machine
guns and sawed off shotguns) or be charged with possession of an unregistered
gun. The Court said: "We hold that a proper claim of the constitutional
privilege against self-incrimination provides a full defense to prosecution
either for failure to register a firearm ... or for possession of an
unregistered firearm."
See the chilling police video of Mr. Hiibel’s arrest
at http://www.papersplease.org/hiibel/video.html
(Windows Media download works well). The screaming you hear is Mr. Hiibel's
In 1983, the US Supreme Court ruled in Kolender v. Lawson,
461 US 352 (1983) that a law requiring person to carry and show ID documents to
the police on demand was unconstitutional, apparently because such demands are
inherently vague. **Again, HB1643 goes well beyond Hiibel** in terms of eviscerating
Fourth and Fifth Amendment protections in VA, and also is, seemingly,
unconstitutionally vague - what does "identify himself" mean?
What is a "reasonably credible account of the lawfulness of his conduct and
purposes"? How would a person reasonably know themselves to be
detained under Terry stop conditions anyway? How would a person who does
not speak English comply with this statute?
Note: A Terry stop is when a person is lawfully detained by a police
officer in circumstances substantially similar to those in Terry v. Ohio, 392 U.S. 1 (1968), case in which the right of police
to stop and question a suspect was first discussed. Some legal
dictionaries refer to a Terry stop as “a stop and limited search of a person for
weapons justified by a police officer's reasonable conclusion that a crime is
being or about to be committed by a person who may be armed and whose responses
to questioning do not dispel the officer's fear of danger to the officer or to
others” (see Merriam-Webster Dictionary
of Law, © 1996 Merriam-Webster, Inc. at http://dictionary.reference.com/search?db=mwlaw&q=Terry%20stop).
One would hope that
"I sympathize with the argument that it infringes on people's privacy
rights,"
Frederick said he would keep an open mind, but is not sure such statutes are
"necessarily the right thing for the United States” (see "Va.
officials debate Supreme Court's decision on identification, By Daniel Drew, News & Messenger, Friday, June 25;
2004http://www.manassasjm.com/servlet/Satellite?pagename=MJM%2FMGArticle%2FWPN_BasicArticle&c=MGArticle&cid=1031776242564&path=null&tacodalogin=no).
It would appear that HB1643 may not square with the VA Constitution's Bill of
Rights, a factor not considered by the US Supreme Court when it considered a
Section 1. “Equality and rights of men. That all men
are by nature equally **free and independent** and have certain inherent
rights, of which, when they enter into a state of society, they cannot, by any
compact, deprive or divest their posterity; namely, the enjoyment of life and
liberty…”
Section 8. “Criminal prosecutions. That in criminal
prosecutions a man hath a right to demand the cause and nature of his
accusation, to be confronted with the accusers and witnesses, and to call for
evidence in his favor, and he shall enjoy the right to a speedy and public
trial, by an impartial jury of his vicinage, without whose unanimous consent he
cannot be found guilty. He shall not be deprived of life or liberty, except by
the law of the land or the judgment of his peers, **nor be compelled in any
criminal proceeding to give evidence against himself**…”
FCPC has interviewed more than a dozen Virginians and not one person so far has
supported any attack whatsoever on the “right to remain silent,” let alone a
law so offensive and injurious to liberty as HB1643. ***When FCPC
founding member Rich Shelton (an African American man whose children attend
Fairfax County Public Schools) heard about HB1643, he immediately remarked that
“…this law sounds a lot like the slave codes of the old South.”***
These “slave codes” (AKA “black codes”) were patterned after the British Slave
Code of Barbados which attempted to codify the commercial practice of slavery
through the manipulation of criminal and civil law so as to restrict the
movement and civil rights of slaves, and colored non-slaves. Bands of
self deputized civil marshals patrolled the country-side detaining colored
persons to demand that they identify themselves and produce evidence or
testimony demonstrating their lawful presence and conduct.
For example, the Virginia Slave Code of 1705 provided that
“An enslaved black could not leave his plantation unless he had a certificate
describing the circumstances of his absence: (see http://www.slaveryinamerica.org/geography/slave_laws_VA.htm).
The
Slave Code of Alabama, 1833 provided for similar restrictions on liberty and
travel at Sections 5 which provided that “No slave shall go from the
tenement of his master…without a pass, or some token or letter, whereby it may
appear that he is proceeding by authority…if he does, it shall be lawful for
any person to apprehend him and carry him to a justice of the peace to be, by
his order, punished…not exceeding 20 stripes” (see also Section 6 of the Slave
Code of Alabama at John G. Aikin, A Digest of the
Laws of the State of Alabama - 1833, Alabama Department of Archives and
History, Montgomery, Alabama; http://www.archives.state.al.us/teacher/slavery/lesson1/doc1-3.html):
FCPC is still waiting for Delegate Orrock to account
for his aide's misstatement about the scope of HB1643, and when and if he does
contact us, we will ask him to quash his unconstitutional bill. We don't
think anybody thought this bill through – its plain language would allow the
police to demand evidence of identity (Photo-ID, name, date of birth, address,
Social Security Number, citizenship, immigration status, mother’s maiden
name…where WILL it end?) AND a statement/confession from essentially anyone
they encounter upon penalty of up to a year in jail – in other words, “STOP-
ID- CONFESS” will replace the current “right to remain silent” in Virginia.
Again, how can a citizen know when they are legitimately being detained in a
Terry stop? The police have asymmetric information over any person in
regard to their state of mind when executing a Terry stop. The police
officer might have legitimately stopped a person in a Terry stop from his
perspective; but that citizen might have no idea why he is being stopped and is
honestly innocent of any crime; common sense and a lifetime of watching TV cop
shows has informed most folks that they have the right to remain silent and may
ask to first speak to an attorney. So the citizen will either
inadvertently violate Orrock’s STOP-ID-CONFESS law,
or he must decide, if he even knows about the law, whether he is ready to play
“Russian Roulette” with his civil rights and remain silent. If the police
can convince a judge that they were executing a Terry Stop, the citizen goes to
jail for remaining silent and asking to speak to an attorney. If not, he
merely goes free, and the police rely on qualified
immunity avoid paying civil penalties and recouping legal fees and other
expenses.
FCPC believes that HB1643 is simply un-American, un-Virginian, and un-needed,
wild drinking parties in
**Take Action** by emailing Delegate Orrock and
asking him to withdraw his unconstitutional bill (and cc your Delegate and
Senator using the “Who’s My Legislator Tool at http://conview.state.va.us/whosmy.nsf/main?openform).
Sample message follows:
TO: Del_Orrock@house.state.va.us
SUBJECT: Please withdraw HB1643!
Dear Delegate Orrock:
Please withdraw your patronage of HB1643. Virginians currently have the
right to remain silent when detained or arrested by a police officer, and I
want you to keep it that way.
Frankly, I am in total shock that you actually propose to require persons
detained by the police to give a statement without their lawyer present.
This sort of statute may be found in authoritarian regimes around the world,
but it has no place here in
I want you to take action to preserve Virginian's right to remain silent.
Please let me know what you are going to do to preserve civil rights in
Sincerely,
YOUR NAME
YOUR ADDRESS
cc: YOUR SENATOR, YOUR DELEGATE
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2. Flurry of editorial support for photo-red light surveillance in VA
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Despite action by the Virginia General Assembly to end the limited experimental
power for some localities to employ photo-red light surveillance against the
citizenry on 1 July 2005 (see “Va. Panel Kills Bills to Keep Cameras at
Intersections,” The Washington Post,
by Chris L. Jenkins, 16 November 2004, page B01, http://www.washingtonpost.com/wp-dyn/articles/A52514-2004Nov15.html),
some editorial writers are pleading for a rematch.
For example, The Daily-Press’ Hugh Lessig’s
enthusiasm (“Action uncertain on lights, cameras,” 30 December 2004) for
photo-red light surveillance cameras at dangerous traffic intersections is
admirable, yet he fails to take into account obvious proven and simple
alternatives suc as re-designing dangerous
intersections, making traffic signals more visible, and lengthening the time
during which motorists are presented a yellow light.
See also the Virginia-Pilot’s Roger Chesley’s
“Lawmakers should cancel sunset for red-light cameras,” The Virginia Pilot,
And then in “Road outrage,” (http://www.dailypress.com/news/opinion/dp-28787sy0dec14,0,1936085.story?coll=dp-opinion-editorials,
p. A12, 14 December 2004) the Daily Press
goes on to lament the lawful availability of effective means for the citizen to
defeat cameras that photograph their license plates, calling for a law to
combat such products and devices. See a Fox News video that attests to the efficacy and legality of
surveillance counter-measures discussed by the Daily Press at http://www.phantomplate.com.
Perhaps legislators like Senator Bill Bolling
(R-Hanover), Delegate John Welch (
Could it be that its time for motorists caught up in these
civil liberty-less photo-red light surveillance schemes to consider
taking surveillance countermeasures and/or boycotting paying the $50
fines? After all,
Now of course a judge can issue an arrest warrant for failure to appear in
court in response to a summons **personally served upon you** – but FCPC would
like to know if localities will even go that far if a citizen forgets to
respond to a mailed photo-red light surveillance summons? Seems like that would cost about as much as the locality would
profit from the $50 fine. Please Email us if you have direct
experience with photo-red light surveillance summons or proceedings.
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3. FCPC quarterly public meeting
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FCPC will hold a public meeting on Monday, 3 January 2005 at 7:30 PM at the
Kingstowne library meeting room (6500 Landsdowne
Centre, Alexandria, VA 22315, vicinity the intersection of Telegraph Road and
Beulah Street) to discuss privacy legislation under consideration by the
General Assembly, such as HB1643 (see above). Light refreshments and a
free privacy book available for all attendees!
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4. Pro-privacy post-holiday gift ideas
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We know those shredders and privacy books went over
well as gifts for friends and family during the holidays. But now it’s
time to treat yourself in the new year. How about a
Virgin Mobile cellular phone bought with cash and registered by you from a pay
phone in a name and date of birth of choice, no address or SSN required!
These phones have voice mail options accessible anonymously from pay phones and
are on special now, so don’t delay ?
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5. Privacy Quote: “underage drinking”
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A STOP-ID-CONFESS law is needed in
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Questions, or to be added/deleted from future Alerts? Contact Mike
Stollenwerk atFCPCChairman@cox.net.