Crime & Justice
1:14 pm
Wed February 26, 2014

Austin Jaywalker Arrest Has People Asking: What is Failure to Identify?

Amanda Stephen is detained by two Austin Police officers. Her arrest was filmed, creating a social media firestorm.
Amanda Stephen is detained by two Austin Police officers. Her arrest was filmed, creating a social media firestorm.
Credit Chris Quintero

The controversial arrest of a jogger in Austin's West Campus neighborhood last week has made international news.

Thursday, Amanda Stephen was arrested by Austin police officers for jaywalking and a refusal to identify herself. Her arrest was caught on video. Subsequent remarks by Austin Police Chief Art Acevedo – "In other cities there's cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for a controversy in Austin, Texas" – prompted more online criticism and an apology. The story was picked up by everyone from The Huffington Post to the BBC

One big question raised by last week's arrest: When are you required to identify yourself to police?

The Texas Penal Code says that refusing to identify yourself is an offense when you've already been "lawfully arrested." In cases where a suspect is "lawfully detained" by police, declining to self-identify isn’t listed as a crime – but offering a false identification is.

So what’s the difference between being lawfully arrested and lawfully detained?

According to defense attorney Betty Blackwell, the legal difference is quite large.

“From a legal point of view [the differences] are huge, because many people are detained that are subsequently released,” Blackwell says. “They’re detained to identify them, they’re detained to control the safety of the circumstance, and then they’re subsequently released. What turns it into custody is an officer telling the person ‘you are under arrest’ and the person actually going to jail.”

According to Police Chief Acevedo, "a stop for a traffic violation is an arrest. You are released upon the issuance of a citation [and] your signature on [a] ticket."

“That’s a fair way to describe it,” Blackwell says. “He’s trying to explain to the public that the officer has the absolute legal authority to detain you and to physically handcuff you and take you to jail unless he decides to issue that traffic citation and you sign it."

“Generally they are giving citations,” Blackwell continues. “But that’s the reason that it’s important to understand that they have the power to arrest – that gives them the power to demand the identification if they are going to give the citation. Because the only way to give somebody a ticket is if they identify themselves.”

What does it mean to identify yourself? One popular question on social media in the wake of the arrest was whether joggers would need to carry their driver’s licenses and IDs from now on. Here, the law is more straightforward: simply giving your name, address and/or date of birth qualifies as identifying yourself.

Defense attorney Robert Keates says the jogger will probably have the chance to have her case dismissed.

“They may have her do some community service, the publicity may affect it one way, but at the same time that may put more pressure on the prosecutors office and the police to actually continue with the case,” Keates says. “She should be given the chance to have the case dismissed at the end of the day.”