For the last three years, prosecutors in San Bernardino County have pursued criminal charges against Anthony Ray, who was arrested by Barstow police only because he declined to present his identification when asked. Prosecutors refused to drop the case even though the Barstow Police Department has since changed its policies to reflect that there’s no legal basis for detaining people solely for refusing to provide ID.

A few weeks ago — in consideration of Anthony Ray’s appeal and an amicus brief filed by the ACLU of Southern California (ACLU SoCal) in support of it — an appellate court spoke clearly: with few exceptions, a person stopped for questioning in California is not legally required to provide identification to a police officer, and cannot be arrested for refusing to do so. The court threw out Ray’s conviction.

Still, many of our state’s prosecutors continue to improperly advise police agencies that Penal Code section 148(a), which prohibits resisting or obstructing an officer’s performance of duties, makes it a crime to refuse an officer’s demands for identification — even in cases where a person is not under arrest and could not otherwise be legally arrested. After police officers arrested our clients Jesse and Robert Katz in a Barstow taco shop last year for refusing to present identification, the Katzes struggled for nearly a year to get the Section 148(a) charges against them dismissed.

Penal Code section 148(a)(1) prohibits resisting or obstructing police officers that are lawfully performing their duties.

Punishing someone for refusing to produce identification under Section 148(a) runs contrary to Kolendar v. Lawson, the 1983 U.S. Supreme Court decision that struck down a California statute requiring pedestrians to provide identification to police officers on demand. “Stop-and-identify” arrests have been illegal in California since then. The federal courts of this state and the Ninth Circuit Court of Appeals have consistently said so. The California courts have also said so. Even the California Attorney General says so.

The ACLU SoCal has repeatedly told prosecutors who cite Section 148(a) to justify “stop-and-identify” charges that they are wrong, yet many persist. A 2014 memo published by the Los Angeles County District Attorney’s office advises that refusal to identify violates Section 148(a), even as it acknowledges that three Ninth Circuit decisions and a California Court of Appeals decision all held that a detainee’s refusal to identify does not justify arrest. The memo inaccurately asserts that prior court decisions were based on a misreading of the law.

Such advisories are not limited to Los Angeles County. Last year, the California Court of Appeals clearly held in a binding decision that refusing to identify oneself to a police officer while detained “cannot violate Section 148.” But in a legal update on the case published by the San Diego Sheriff’s Department, former deputy district attorney Robert C. Phillips stated, “I’ve always made the argument that a detainee refusing to identify himself can be charged with P.C. 148(a)(1) . . . . California has no [stop-and-identify] statute, and it remains an issue (at least in my mind) whether P.C. 148(a)(1) can be used instead. . . . Probably not . . . but the argument is still there.”

Of course, officers may legally request information from people they stop for questioning, but those people may just as legally decline to answer. Anyone stopped by police while driving must produce their driver’s license upon request. While some other states have so-called “stop-and-identify” laws that do require people stopped by policy to provide identification or be arrested, California has no such law. Still, many prosecutors argue — in their court presentations and publications — that police can force people who refuse to identify themselves to provide information and identification documents by arresting them.

Police agencies are confused and emboldened by this mistaken advice. When the Los Angeles Police Protective League argued that members of the public “must provide identification when asked to do so, or face arrest for obstructing or delaying a police officer,” it relied on the “considered advice” of prosecutors, “such as the Alameda County District Attorney’s Office.” That office has published guidance that, among other incorrect assertions, says, “Not only do officers have a right to require that the detainee identify himself, they also have a right to confirm his identity by insisting that he present ‘satisfactory’ documentation.”

Additionally, training materials the ACLU SoCal obtained through a public records request to the San Bernardino County Sheriff’s Department suggest that the agency is instructing its officers that they can require individuals they question to produce proof of identification, relying on a muddled version of the legal arguments their local prosecutors have asserted in court.

Prosecutors encourage police officers to violate the law when they spread misinformation and prosecute the victims of illegal arrests. There are several reasons why prosecutors must stop:

>> It is dangerous. When an officer arrested a pregnant Charlena Cooks in front of her child’s school in May 2015 because she declined to answer his questions about her identity — throwing her to the ground and roughly cuffing her arms behind her back — the San Bernardino County District Attorney’s office prosecuted her for resisting or obstructing an officer until a court dismissed the charges.

Prosecutors encourage police officers to violate the law when they spread misinformation and prosecute the victims of illegal arrests.

By leading police officers to believe that a person’s refusal to identify themselves is a crime, prosecutors encourage them to escalate casual investigations into full-blown arrests, increasing the use of force. All too often, arrests for low-level offenses escalate into serious instances of police violence, as Ms. Cooks experienced. In the worst-case scenarios, such encounters can be fatal, as in the cases of Eric Garner in New York and Philando Castile in Minnesota this year.

>> It feeds into racially-biased policing and erodes community trust. Telling police officers that they have the authority to require identification where there is no other cause for arrest gives them a troubling amount of discretion to increase the duration and intrusiveness of any investigatory stop. As we have seen in other contexts, allowing such broad discretion opens the door to systemic over-policing of poor and minority communities. Studies have revealed that the enforcement of low-level, public order offenses disproportionately burdens people of color and LGBTQ people. That’s why different groups — from the Movement for Black Lives and Campaign Zero to the ACLU of New Jersey — have called for an end to policing of low-level offenses, and some police agencies, including the New York and Pittsburgh police departments, are implementing reforms along those lines.

Using the resisting/obstructing statute to drag people who pose no risk to public safety through court proceedings that disrupt their employment, studies, and family responsibilities benefits no one. It also sows distrust between minority groups and law enforcement agencies (including district attorney’s offices) that are supposed to serve the community as a whole.

>> It is un-American. As the Supreme Court declared in Terry v. Ohio, “No right is held more sacred, or is more carefully guarded” in our country “than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” The interpretation of the law asserted by many prosecutors would convert California into a “show me you papers” state. That would be irreconcilable with our tradition of liberty.

>> It is illegal, unethical, and an abuse of discretion. To argue that Penal Code Section 148(a) authorizes “stop-and-identify” arrests, prosecutors have relied on irrelevant, outdated, and out-of-context case citations, such as the 1980s decision People v. Rios. Relying on Rios, at this point, is tantamount to committing a fraud on the court. As we explained in our amicus brief, and the Court agreed, Rios is factually inapplicable, and the sentence prosecutors usually quote from it refers to a statute that has since been repealed as unconstitutional.

As public servants and officers of the court, prosecutors have a duty to protect and uphold the law. Prosecutors fail their duty to the people when they dismiss the decisions of our state and federal courts in favor of their own selective reading of the law. They fail their duty when they wrongly advise police agencies, encouraging officers to carry out baseless arrests while making them vulnerable to liability. Prosecutors fail their duty when they compromise public safety to defend the absolute authority of police officers — and when they abuse the resources and trust of the people by forcing ordinary citizens to endure lengthy, burdensome, and unnecessary court proceedings for simply choosing to demur in the face of police questioning.

We call on California prosecutors, as public servants, to clear up the confusion they have caused among police officers and ensure responsible filing decisions in their own offices by issuing guidance that accurately sets forth the law: absent more, police cannot arrest a person they detain merely for refusing to identify themselves.

Sincerely,

The ACLU of California

The American Civil Liberties Union of California is a collaboration of the three ACLU affiliates in the state: ACLU of Northern California, ACLU of Southern California, and the ACLU of San Diego & Imperial Counties.