Living in a Free Society in Louisiana: When Are You Resisting an Officer by Failing to Provide Your Name?
Written by Attorney Philip B. Adams.
When are you required to give your name under Louisiana law to a law enforcement officer? La. 14:108 (A) & (B)(1)(c) contain statutory language criminalizing a failure to provide one’s name to a law enforcement officer under certain conditions. To be found guilty of Resisting an Officer for Failure to Provide a Name under La. 14:108 (A) & (B)(1)(c), the government must prove the essential elements of the crime beyond a reasonable doubt. Proof beyond a reasonable doubt requires the highest level of proof in our legal system, and close scrutiny must be paid to any case involving an alleged failure to give one’s name to a law enforcement officer. Cases falling under 14:108 (A) & (B)(1)(c) involve wide-ranging implications for the First and Fourth Amendment rights of citizens of a free state.
La. R.S. 14:108 states the following in pertinent part:
“A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
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B.(1) The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
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(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer.
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Analysis of the law applied to the evidence is guided by a fundamental precept of criminal law:
A cardinal rule basic in our law provides that one cannot be held accountable, or subjected to criminal prosecution, for any act of commission unless and until that act has first been denounced as a crime in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct falls within the purview of the act intended to be prohibited by, and will be subject to the punishment fixed in, the statute. And the courts have not only consistently refused to usurp the prerogatives of the legislature by supplying either the definition or essential elements thereof that have been omitted in the drafting of the statute, but, under rules calling for construction of all criminal and penal statutes as Stricti juris, resolved ambiguities in favor of the accused. State v. Christine, 239 La. 259, 289, 118 So.2d 403, 413-14 (1959). A court may neither supply a definition nor may it disregard a clear definition supplied by the legislature.
Under the wording of La. R.S. 14:108, law enforcement action in the form of a “lawful” action, such as an arrest, detention, seizure of property, or service of any lawful process or court order, must occur before any possibility may arise of there being an intentional interference, opposition or resistance to, or obstruction of an individual acting in his official capacity. Detentions and arrests constitute the overwhelming majority of situations that implicate La. R.S. 14:108(A) & (B)(1)(c). If a detention or arrest is made, the question arises whether law enforcement officers were making a “lawful” detention or arrest at the time that the prosecuting authority in a case claims a defendant intentionally interfered, opposed, resisted, or obstructed the law enforcement officers by not initially providing a name. Any additional details learned by law enforcement officers after the time of detention and arrest are legally irrelevant in determining whether reasonable suspicion or probable cause existed at the time of the detention or arrest. One cannot manufacture reasonable suspicion or probable cause in an ex post facto manner. To determine whether any detention or arrest of a defendant is “lawful”, a careful examination of statutory law and Constitutional case precedent is necessary.
For an arrest to be “lawful” under La. 14:108, probable cause must exist. An arrest is interpreted as any situation in which a person is deprived of his liberty in significant ways or is not otherwise free to go as he pleases. A person need not be actually handcuffed to be “arrested” within the meaning of the law. State v. Menne, 380 So.2d 14 (La.1980), State v. Roach, 322 So.2d 222 (La.1975). For example, if an individual is surrounded by law enforcement officers and told that he is not free to leave, he has been “arrested” within the meaning of the law even if no handcuffs have been placed on him.
The determination of whether a person is “in custody” is made from the objective standpoint of a “reasonable interrogee” under the totality of the circumstances. State v. Liner, 397 So.2d 506 (La. 1981). Factors to consider in determining if a person is in custody are whether there was probable cause to arrest, whether the investigation had focused on the suspect, whether under the circumstances a reasonable person would have believed he was in custody, whether the statements and actions of the suspect indicated he reasonably believed he was in custody, and whether the statements and actions of the officers indicated an intent to restrain the suspect. State v. Redic, 392 So.2d 451 (La. 1980); State v. Thompson, 399 So.2d 1161 (La. 1981); State v. Saltzman, 871 So.2d 1087 (La. 2004).
Alternatively, if the claimed “lawful” basis for a law enforcement officer requesting one’s name is that a person is being “detained”, there must be reasonable articulable suspicion that a suspect has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1 (1968). The determination of reasonable grounds for an investigatory stop or detention does not rest on the officer's subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Lane, 09–179 at 5, 24 So.3d at 924. In determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific and reasonable inferences that he is entitled to draw from the facts in light of his experience. For the suspicion to be objectively reasonable, it must be guided by logic and actual observations.
Imagination and fear do not equate to objectively reasonable suspicion of a crime. Imagining that someone might commit a crime without sufficient corroborating facts makes the suspicion unreasonable and subjective. You cannot imagine, for instance, that someone might commit a shooting when you see no evidence of any weapons, no gun, no scope, no body armor, no ammunition, hear no threats to commit a shooting, etc. and then call your suspicion objectively “reasonable.” To avoid being well on our way towards a police state, the law demands a more solid barrier than mere imagination and fear between officers and citizens. Remember that “suspicion” alone does not equate to objectively reasonable articulable suspicion of a crime.
In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop-and-identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. Id. at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible. Id. at 52.
Likewise, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a statute requiring suspects to disclose their names during a valid Terry stop does not violate the Fourth Amendment if the statute first requires reasonable suspicion of criminal involvement, and does not violate the Fifth Amendment if there is no allegation that their names could have caused an incrimination. Thus, Hiibel reaffirmed its holding in Brown.
In summary, if a law enforcement officer requests that you provide your name and identify yourself, you do not have to do so unless that law enforcement officer has a lawful basis for making this request of you. When an officer is not engaging in a lawful detention, lawful arrest, lawful seizure of property, or lawful service of process or court order, you are safe in refusing to provide your name and identity. As long as you continue to live in a free society, you are under no obligation to satisfy the curiosity of a probing officer who has no lawful basis for requesting your name and identity.