Are Cyclists Required to Carry ID? Are Pedestrians? Updated 2014

[2/23/2019 update: see story about 12 y.o. Hilde Kate Lysiak says Marshal Joseph Patterson stopped her as she was biking in Patagonia, Arizona. Various issues: asked her for identification?. “failure to comply with lawful order”? “illegal to video record”? ID?  ]

[2/17/2015 update: Officer Ferrin of the Ore incident has resigned. ASU released a chief’s letter and an independent investigation commissioned by ASU performed by Investigative Research Inc.  (apparently through public records?) I would describe as scathing, and that corroborates most of what I thought/said below, see the lengthy news story on azcentral — There is no law requiring peds to provide an ID card (in other words his saying “Let me see your ID or you will be arrested for failing to provide ID” is wrong, see  Arizona v Akins, below); there was no ‘jaywalking’, see link below to the actual jaywalking laws; there was probably no probable cause for the arrest; he didn’t “almost run her over”; 5 days earlier the officer had a similar (but non-physical) power-trip incident over a crosswalk. and on and on. The transcript, see below, confirms Officer Ferrin doesn’t understand the (ID) law]

[2015 update to the Ore incident: in an apparent about-face, ASU has moved to terminate Officer Stewart Ferrin over the matter; apparently as the result of an un-released independent review by an “outside agency”. ]

In 1999 Tucson bicyclist Enol Daniel Ortiz Jr. spent the night in jail for not having ID on him. It appears that now (since 2003) cyclists and other non-motorists have no legal obligation to carry identification.

The update in 2014  is due to the unusual case of Ersula Ore, an English professor at ASU. She was apparently “jaywalking” when she got into an altercation with ASU police. From what I can see this on College Ave, somewhere north of University Dr. This is a public street in the city of Tempe (there seems to be some confusion and many erroneous comments about this; this location is not “on campus” or somesuch). Tempe’s codes for pedestrians are here; ASU is NOT in the “central business district”, the more-restrictive “jaywalking” code only applies in the CBD so it leads me to wonder if she was really jaywalking at all. Jaywalking codes, real or imagined, are frequently used to assert superiority by motorists (the police officers were driving cars) over pedestrians.

In any event the ASU police dash-cam is pretty startling. As of this writing, there a CNN Story with some interviews and some of the dash-cam footage.

The police repeatedly demand “ID”; but what is the deal? I know of no law for non-motorists that requires carrying any sort of ID other than 28-1595C; Pursuant to  Arizona v Nathan Richard Akins

the statute fails to give persons, including passengers, notice of what type of identification is required to avoid arrest under the statute, and it encourages arbitrary and discriminatory enforcement.

this section was found to be unconstitutionally vague in 2003 — as it should have been. (what the hell is “evidence of identity” anyways?).

The outcome of her case was that she was charged with resisting arrest and aggravated assault — which seems, um, a bit much (agg assault is a FELONY!) but I imagine par for the course. She plead guilty to the resisting; and the agg assault was dropped and received 9 months probation. So none of these juicy procedural issues, like was this a “legal stop” in the first place, and what is story about demanding ID? were never aired. (CR2014124175 ; minutes ) Her motions for post-convic relief were dismissed for various procedural reasons, the most important seemingly was she took the plea deal before having a probably cause hearing, which she waived.

Ore still has some civil suit irons in the fire so maybe we’ll eventually hear more about this. It seems clear to me the ASU police escalated the situation needlessly. His first verbal communication, according to Ore’s interview was a smart alec: “he asked me if I knew the difference between a street and a sidewalk”. I also find the claim that the police “almost ran Ore over” highly unlikely — this is a very low speed two lane road with all sorts of activity; many peds, many bicyclists, many long-boarders, many cars turning/stopping, entering/leaving parking spots.

So in a broader context — ever since 2003 — there is no ID requirement for bicyclists and pedestrians (and passengers in vehicles). It’s somewhat odd the legislature hasn’t acted to un-vaguen that section. The section for motorists, 28-1595B was similarly found unconstitutional and “fixed” in 1995.

Below is the Legacy 2001 article about bicyclists and ID

(blog note: this is/was a “legacy article”, published at azbikelaw.org/articles/TucsonID.html in 2001)

---

PLEASE SEE comment regarding a 2003 AZ Court of Appeals finding in Arizona v Nathan Richard Akins that 28-1595C is unconstitutionally vague. Also, some commentary on how the ID issue might play into SB1070; which requires police to follow up on any reasonable suspicion of illegal immigration status under certain conditions.

---

In an interesting, and potentially far-reaching case from Tucson, Arizona in 1999, a cyclist was arrested spent a night in jail for not carrying identification.  He was subsequently acquitted of the criminal charge, and note that he was not even charged with any vehicular infraction (though he could have been).

The cyclist brought suit for unlawful imprisonment.  In an unsettling Superior Court decision, effectively sided with the police/county…  From what I can tell, in the event a cyclist is stopped (at least in Pima county, Arizona — though superior court rulings are not binding ) for cause by law enforcement without ID, they are guilty of a crime. (infractions of the vehicle code, with few exceptions, are civil violations, not crimes)

The reasoning behind the verdict appears to be faulty.  According to the Tucson Citizen article:

[Superior Court Judge] Kelly cited two traffic statutes that, when taken together, “require a bicycle rider to provide proof of identity when lawfully stopped for a traffic violation.”
One statute says an operator of a motor vehicle who fails or refuses to show a driver’s license or other form of identification on request is guilty of a class 2 misdemeanor. The other says that a person riding a bicycle on a roadway or a shoulder adjoining a roadway has all the rights and duties applicable to motorists.

The reference to the first statute is apparently 28-1595, which involves requirements for vehicle operators to provide identification.  The second refers to 28-812, applicability of laws to bicycle riders, and is materially incorrect.  28-812 says that bicyclists have “…all of the duties applicable to the driver of a vehicle…”, not a motor vehicle.  The terms vehicle and motor vehicle have specific definitions under the law — bicycles simply are not motor vehicles, and bicyclists therefore cannot be the “operator of a motor vehicle”. Period.

However, 28-1595(C) could apply to cyclists: “A person other than the driver of a motor vehicle who fails or refuses to provide evidence of the person’s identity …  is guilty of a class 2 misdemeanor.”, therefore it does appear that the verdict is correct, albeit not for the reasons stated. (Actually upon reflection, it was actually an incorrect verdict if he was charged under 28-1595(A) — Kelly should have upheld the lower court’s dismissal)
(and as mentioned above in the updates, section C was found unconstitutional in 2003; which of course hadn’t happened yet)

Applicable law links to statute’s full text

28-101.   Definitions (see vehicle and motor vehicle)
28-812.   Applicability of traffic laws to bicycle riders
28-1595. Failure to stop or provide driver license or evidence of identity; violation; classification
28-3169. Possession and display of driver license; defense

---

The Arizona Daily Star February 5, 2001

Judge upholds deputy’s arrest of bicyclist who didn’t have ID

Author: Inger Sandal

Enol Daniel Ortiz Jr. spent a night in jail because he didn’t show identification to a deputy who had stopped him for weaving in traffic.

Ortiz, who is deaf and mute, was not in a car when he was stopped. He was riding a bicycle.

A lower court acquitted him last summer of the misdemeanor charge of failure to have identification. But a Superior Court judge recently sided with the deputy in a lawsuit Ortiz had filed alleging wrongful imprisonment.

Jerold A. Cartin, Ortiz’ attorney, said the ruling has broad implications for anyone who rides a bicycle.

“If you violate a traffic law and you’re on a bicycle you better have ID, because potentially you could be charged with a class 2 misdemeanor and you could be jailed,” said Cartin, whose client wants to appeal the decision of Superior Court Judge John Kelly.

Cartin doesn’t dispute that the deputy had the right to stop Ortiz at about 11:20 p.m. on Nov. 5, 1999, if his client was swerving in the westbound lanes of Golf Links approaching Ajo Road.

But Cartin questions why Ortiz was arrested for not having ID if he wasn’t cited for any traffic violation. “If you’re going to cite him, then you need identification. But if you’re not going to cite him, then you don’t need identification.”

Deputy County Attorney Sean E. Holguin, who defended the Sheriff’s Department in the civil case, said the judge based his ruling on laws that have been on the books for a long time.

“A lot of bicyclists may not be aware of the requirement that they must produce some form of identification if they are stopped for a traffic violation,” he said, “but ignorance of the law is no excuse.”

Cartin and Holguin argued their sides last month before Kelly, whose recent ruling sided with the deputy and found that the arrest and incarceration were proper.

Kelly cited two traffic statutes that, when taken together, “require a bicycle rider to provide proof of identity when lawfully stopped for a traffic violation.”

One statute says an operator of a motor vehicle who fails or refuses to show a driver’s license or other form of identification on request is guilty of a class 2 misdemeanor. The other says that a person riding a bicycle on a roadway or a shoulder adjoining a roadway has all the rights and duties applicable to motorists.

Kelly also found that police don’t have to cite for every possible violation. “The police officer here had reasonable grounds to stop plaintiff for traffic violations and had probable cause to arrest him for failure to provide proof of identity,” the judge wrote.

Walter Nash, a local attorney and avid cyclist, said the ruling appears technically correct. But Nash said he fears “an unscrupulous police officer or police agency” could use it to target cyclists and organized bicycle rides. Nash noted that there have been several recent incidents that caused ill will between cyclists and police.

“While the laws have been on the books, the specific application to this kind of situation has not been widely known. You can have a correct result under the statute, but the statutes themselves, when taken together, just don’t make good sense,” Nash said.

“The best example, literally applied, is your 10-year-old daughter riding her bicycle in the street could be taken to the juvenile authorities if she committed a traffic violation and didn’t have ID on her,” he said.

Nash said he does not carry identification when he rides because his cycling shorts don’t have pockets.

Bob Beane, an accountant who belongs to the Phoenix Metro Bicycle Club, also was bothered by the ruling, although he does carry identification when he rides. “I think the cycling community would be better able to follow the laws if an issue like this was clarified legislatively rather than by individual judges,” he said.

Cartin, who has practiced law in Tucson since 1967, said he took on Ortiz’s case for free. “It’s the most unusual that I’ve had and I don’t know another case like it,” he said.

Ortiz was born in Puerto Rico but grew up in New York. Both his parents were deaf.

Ortiz said he has a driver’s license and usually carries a card from the Community Outreach Program for the Deaf, which can provide an interpreter in case of an emergency day or night. But he had left his wallet at home the night he was arrested.

Ortiz said he felt he was discriminated against because of his hearing impairment and his race. He also said he was bewildered when the deputy arrested him because he had no idea what he had done wrong.

“We had very limited communication,” he said in a written exchange. “If the deputy asked me for my name and address, I would tell him, but somehow he went into his patrol car for dispatch. He cited me (as) John Doe on the report.”

The question of whether the deputy should have requested an interpreter was not raised in Ortiz’s lawsuit. And, Deputy County Attorney Holguin said, Ortiz still would have been in violation of the law for not having identification.

Deputy Kenneth Atchley reported that he gave Ortiz a note pad to write on after he learned from his hand gestures that Ortiz could not speak or read lips. He said the man wrote in a “very disjointed manner” what appeared to be an “H” and then “My” and then what appeared to be “Mallet,” which the deputy took to mean that Ortiz did not have his wallet.

The deputy, who later identified Ortiz through computer records, said he feared Ortiz would get hurt if he were left on the road and initially took him to Pretrial Services, thinking that office had a way to communicate. But court officials rejected Ortiz after he became aggressive and started yelling, so the deputy instead booked him into jail as “John Doe.”

“The officers at the jail were very rude to me,” said Ortiz, who said he refused to fill out paperwork because he didn’t understand why he had been taken to jail. “The officers threw me into the cell and handcuffed my hands and legs on the bunk for a couple of hours,” he said.

Steve Palevitz, an attorney with the Arizona Center for Disability Law, said police nationwide often fail to provide interpreters for the deaf.

In 1999, he said, the Pima County Sheriff’s Department agreed to pay $10,000 to settle a discrimination claim that it failed to provide a sign language interpreter.

The center had filed the federal lawsuit on behalf of a deaf woman who was cited in a Dec. 20, 1997, traffic collision. The deputy in that case questioned the other driver and a witness but not the deaf woman, and he made no attempt to secure the services of an interpreter.

That same year, the Sheriff’s Department adopted a policy requiring a qualified interpreter be used to administer Miranda warnings, interrogate a hearing-impaired person, and/or interpret the person’s statements.

* Contact Inger Sandal at 573-4241 or isandal AT azstarnet DOT com.

---

The Arizona Daily Star
February 6, 2001

Improbable cause

Section: EDITORIALS

Correction: * Tuesday’s B6 editorial with the headline “Improbable Cause” misspelled the name of Tucson attorney Jerold Cartin.

In some countries it’s still possible to be thrown in jail for failing to produce your identification papers.

But even right here in Pima County you can be riding your bicycle one moment and be thrown in the clink the next simply because you did not produce identification. It’s the law. Or so says Superior Court Judge John Kelly, who ruled recently that the jailing of a bicycle rider because he lacked identification constituted probable cause and was the correct application of the law.

We look forward to the time when this law is equally applied by sheriff’s deputies – when the county jail will be filled with legions of cyclists – men, women, Hispanics and anglos alike – who roam the streets as lawbreakers, dangerous outlaws notorious for their lack of identification.

Much like Enol Daniel Ortiz Jr., who was riding his bike a year ago November and was detained by a Pima County sheriff’s deputy. The deputy had received a report that the cyclist was weaving. Ortiz, who is deaf, spent a night in jail. He was not accorded the services of a sign-language interpreter. He was never charged with a crime other than not having ID.

Ortiz’s lawyer, Jerrold Curtin, applied common sense, arguing that absent the charge of unlawful behavior, identification is unnecessary. “If you’re going to cite him, then you need identification. But if you’re not going to cite him, then you don’t need identification.”

Sounds reasonable. But not to Judge Kelly. He ruled that Ortiz’s lawsuit for wrongful imprisonment could not continue because the sheriff’s deputy complied with the law. Kelly sided with the county attorney who cited a statute that says a bike rider “is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle.” The language of the law goes on to say there are exceptions.

If, for example, a child is stopped, do the cops haul this under-age, identity-less misdemeanant to durance vile? No, says Curtin. Police may detain the little tyke for six hours for purposes of identity. Clearly the application of the statute governing motorists to bike riders carries exceptions. Ortiz’s case should have been one of them. Kelly noted that the law applies to children, and also noted that children could not be jailed.

As for Curtin’s argument, Kelly reasoned thus:

“Plaintiff also contends that he could not be cited for failure to provide proof of identity because he was not cited for any traffic violations. There is no authority for this argument. The police are not required to cite a person for every possible violation. The police officer here had reasonable grounds to stop plaintiff for traffic violations and had probable cause to arrest him for failure to provide proof of identity.”

Actually, there is authority for Curtin’s argument. It’s called common sense. Kelly’s ruling implies that possession of identification constitutes behavior, which is the key ingredient in probable cause.

What in fact constitutes probable cause for arresting a Hispanic deaf man solely because he lacks identification? There is no probable cause.

One wonders what the outcome of this case would be had Ortiz not been Hispanic or deaf, riding his bicycle near Golf Links and Ajo Way. If he had been a middle-aged white guy riding his bike on Sunrise near La Paloma would a sheriff’s deputy have stopped him for weaving, then hauled him to jail for failing to produce his identification papers? Not hardly.

The Ortiz case is an example of abuse of power by the sheriff’s department made all the more egregious for the stamp of legitimacy that Judge Kelly bestowed on it.

Copyright 2001 The Arizona Daily Star