When cana cowboy just say no?

By Barry Smith

The case of the contrary cowboy will put Nevada in the spotlight again on Monday.

That's when the case of Larry "Dudley" Hiibel, a 59-year-old rancher, goes before the U.S. Supreme Court to determine if it's OK for a guy standing next to the side of the road smoking a cigarette to just tell police "no."

Hiibel, a Fallon native who ranches outside Winnemucca, has become the reluctant focus of a constitutional case involving the Fourth Amendment right against unreasonable searches and Fifth Amendment right not to incriminate oneself.

Reluctant is the key word here. Because that's all Hiibel seems to be guilty of. He got a $250 fine for "delaying the police," which is a crime under Nevada law.

But his cause has been taken up across the nation by conservatives and civil libertarians who think the scene between the rancher and a Humboldt County deputy is akin to something out of a B movie about a totalitarian dictatorship in which the storm troopers demand to "see your papers."

In fact, that's the name of the Web site devoted to Hiibel's case, papersplease.org, where you can go to watch a video of the entire incident from the vantage point of the patrol car. It looks like an episode of "Cops," except that TV shows don't often show confrontations that center more on constitutional rights than fisticuffs.

Let me set the scene about 6:30 p.m. on May 21, 2000. It opens shortly after police get a report that a man in a pickup truck appears to be hitting a woman.

Deputy Lee Dove pulls his patrol car to the side of Grass Valley Road outside Winnemucca, where a man in a cowboy hat is leaning against his red 1988 GMC pickup truck smoking a cigarette.

The deputy calls him away from the truck and, over the course of the next few minutes, asks the man 11 times for some identification. The man, Hiibel, refuses.

It's not a particularly heated conversation. The deputy persists in asking for ID, and Hiibel persists in asking why he should have to show one.

"Cuff me and take me to jail," Hiibel says.

"Show me some ID," responds the deputy.

"Why?"

"Because."

"Why?"

"You're facing arrest here if you don't show me some ID," says the deputy.

And sure enough, the deputy finally handcuffs him and puts him in the patrol car. Another officer, a state trooper, has arrived at the side of the truck by this time, and Hiibel's 17-year-old daughter, Mimi, is raising a ruckus. She's pulled to the ground and handcuffed, too.

As it turns out, Mimi and her dad had been having an argument in the truck over a boy. If anything, Mimi reached out and smacked her father on the shoulder. That's apparently what someone saw and reported.

The two had pulled to the side of the road and Hiibel was having a smoke when the deputy pulled up.

Hiibel was charged with domestic battery, but it was dismissed. The "delaying an officer" charge and $250 fine were all that stuck.

"In America, people have the right to remain silent," Hiibel told the Las Vegas Review-Journal recently. "I didn't have to kowtow to the guy. I don't bother people, and I don't appreciate them bothering me."

The case could have stopped with the Nevada Supreme Court. But the court upheld the Nevada law which says: "The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer."

The Nevada court, in an opinion written by Justice Cliff Young, said: "Fundamental to a democratic society is the ability to wander freely and anonymously, if we so choose, without being compelled to divulge information to the government about who we are or what we are doing. This 'right to be let alone' - to simply live in privacy - is a right protected by the Fourth Amendment and undoubtedly sacred to us all.

"Yet, this right to privacy is not absolute. Like all freedoms we enjoy, it includes both limitations and responsibilities. One such limitation to the right of privacy is reasonableness. The Fourth Amendment only protects against 'unreasonable' invasions of privacy, or searches and seizures, by the government."

The court also took notice that 51 officers were murdered in the line of duty in 2000, and that the nation, at the time of its ruling, had only recently been stunned by the terrorist acts of Sept. 11, 2001. Requiring suspicious people to show their IDs didn't seem unreasonable.

The court was split 4-3, and the dissenting opinion was written by Justice Deborah Agosti. "As the majority aptly states, the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society. However, the majority promptly abandons this fundamental right by requiring 'suspicious' citizens to identify themselves to law enforcement officers upon request, or face the prospect of arrest."

The case isn't as clear-cut as those on Hiibel's side would have us believe. I do agree we shouldn't be subject to arrest for no reason other than refusing to identify ourselves. And the video shows a deputy who could have defused the situation by talking with Hiibel - and certainly by talking to his daughter, the supposed victim of assault - to explain what he was investigating.

But I also understand that had the deputy been mistaken about the situation - had Hiibel been somebody far more dangerous than a contrary cowboy - it might have been the last mistake the deputy ever made.

Barry Smith is editor of the Nevada Appeal. Contact him at editor@nevadaappeal.com or 881-1221.