While motor vehicle operators are required by statute to carry their operator’s license or permit on their person, pedestrians are exempt from this legal requirement.
NO ID REQUIRED FOR PEDESTRIANS
Intrusion by government upon the right to walk where we wish without being monitored by “Big Brother” or the forces of Homeland Security is an individual freedom, at least so long as citizens follow the traffic laws and municipal or county ordinances. Contact with law enforcement officers sometimes creates a conflict because police are accustomed to working with the legal requirements for drivers, i.e., production by the citizen upon request of driver’s license identification.
Since no requirement for carrying identification exists for pedestrians it has been frustrating for police officers trying to issue citations to protesters or traffic law offenders.
LEGAL RIGHTS
Appellate courts throughout the country have been highly protective of individual liberties under the Fourth Amendment prohibition against unreasonable search and seizure when there is less than probable cause to justify an arrest. If a law enforcement officer has probable cause to arrest an individual for a crime then the arrest process justifies inquiry about identity, and reasonable detention if the arrested person is unwilling to cooperate. However, if the citizen is not being arrested for a crime, then the law regarding stop and detention becomes applicable and creates an increased level of constitutional protection for the citizen.
If a law enforcement officer has a reasonable suspicion that a person has committed or is about to commit a crime, (“about to commit” is defined in ORS 131.605 somewhat loosely as: “unusual conduct” indicating “criminal activity may be afoot.”) then the citizen may be stopped (detained) and an inquiry may be conducted about the suspicious circumstances, which does not include the obligation to identify oneself to the officer in Oregon.
While present Oregon law does not require that a person stopped by a suspicious police officer must carry or present identification, the U.S. Supreme Court decided five-to-four in 2004 that the state of Nevada was within it authority in convicting Harry Hiidel for violation of a Nevada statute requiring people stopped in suspicious circumstances to identify themselves. So far, Oregon does not have a similar statute in the books.
However, law enforcement frustration with citizen refusals to identify led to introduction of House Bill 2390 in the Oregon 2005 Legislature. The measure would have created an offense of “Refusal to Identify.” The measure passed the Oregon House (by a margin of 39/20) but died in the House Rules Committee before it was ever sent over to the Senate (which would likely not have passed it for civil liberties reasons). HB 2390 would have required that a person present at the scene of a felony or to whom a police officer intends to issue a citation, identify themselves when asked; if the person failed to comply the law would have allowed immediate arrest and detention. This measure was an outgrowth of frequent difficulty experienced by police officers attempting to obtain cooperation from witnesses to crimes or in issuing non-criminal citations to persons in non-motorized vehicle citation situations such as protests, Critical Mass, or other instances where no hunting/fishing or other registration must be carried by the citizen.
Periodically, this area will continue to be a source of debate between the law enforcement and civil liberties communities. Ultimately, the question will be decided in a political forum and will depend on the political constituencies in the legislature and in the courts.
For now, citizens do not need to carry identification. And pedestrians need not identify themselves unless charged with a traffic citation or crime. If cited or charged with a crime, the person must correctly identify themselves for purposes of service of the Uniform Traffic Citation or face arrest for a Class A Misdemeanor for giving False Information to a Peace Officer. ORS 162.385. Thus, while no identification papers must be carried by a person, it is, nevertheless, a misdemeanor crime to fail to correctly identify oneself when being cited.
This differs from the rights of a person driving a motor vehicle. ORS 807.010 requires a person to have and carry a driver’s license while operating a motor vehicle on Oregon’s roadways. Furthermore, ORS 807.570 requires a motor vehicle driver to present that license to a law enforcement officer if the motorist is legally stopped or detained while driving their motor vehicle if asked by the officer.
While protection of the individual’s right not to carry identification and to refuse to identify oneself in the absence of having committed an offense is a narrow one, it is, nevertheless, a significant protection for the individual. Travelers to other countries who have ever encountered an identity check station will recognize the difference immediately. “Flying below the radar” or “being off the grid” may seem at first glance like vestigial stumbling blocks for law enforcement in this age of Homeland Security and plastic disposable identity cards, but our right to remain unidentified so long as we behave ourselves is a basic building block of our individual freedom in the United States and is worth preserving.