residence. Later that day, the two minors again engaged in an altercation outside the first minor's residence. The officer arrested both for Failure to Comply with the earlier orders. But Section 29-16(1) does not confer on officers the power to confine people to their homes or keep them away from certain places based solely on their verbal orders. At any rate, the facts of this incident do not satisfy the statute for another reason: there was no evidence that the failure to comply "interfered with, obstructed or hindered the officer in the performance" of official duties. § 29-16(1). The officer's arrest of the two minors for Failure to Comply without probable cause of all elements of the offense violated the Fourth Amendment.
- Improper Enforcement of Code Provision Requiring Individuals to Identify Themselves to a Police Officer
FPD's charging under Section 29-16(2) also violates the Constitution. Section 29-16(2) makes it unlawful to "[f]ail to give information requested by a police officer in the discharge of his/her official duties relating to the identity of such person." This provision, a type of "stop-and-identify" law, is likely unconstitutional under the void-for-vagueness doctrine. It is also unconstitutional as typically applied by FPD.
As the Supreme Court has explained, the void-for-vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). In Kolender, the Supreme Court invalidated a California stop-and-identify law as unconstitutionally vague because its requirement that detained persons give officers "credible and reliable" identification provided no standard for what a suspect must do to comply with it. Instead, the law "vest[ed] complete discretion in the hands of the police" to determine whether a person had provided sufficient identity information, which created a "potential for arbitrarily suppressing First Amendment liberties" and "the constitutional right to freedom of movement." Id. at 358. The Eighth Circuit has applied the doctrine numerous times. In Fields v. City of Omaha, 810 F.2d 830 (8th Cir. 1987), the court struck down a city ordinance that required a person to "identify himself" because it did not make definite what would suffice for identification and thereby provided no "standard to guide the police officer's discretionary assessment" or "prevent arbitrary and discriminatory law enforcement." Id. at 833–34; see also Stahl v. City of St. Louis, 687 F.3d 1038, 1040 (8th Cir. 2012) (holding that an ordinance prohibiting conduct that would impede traffic was unconstitutionally vague under the Due Process Clause because it "may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits") (internal quotation marks omitted).
Under these binding precedents, Ferguson's stop-and-identify law appears to be unconstitutionally vague because the term "information… relating to the identity of such person" in Section 29–16(2) is not defined. Neither the ordinance nor any court has narrowed that language. Cf. Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177, 188–89 (2004) (upholding stop-and-identify law that was construed by the state supreme court to require only that a suspect provide his name). As a consequence, the average person has no understanding of precisely how much identity information, and what kind, he or she must provide when an FPD officer demands it; nor do officers. Indeed, we are aware of several people who were asked to provide their Social Security numbers, including one man who was arrested after refusing to do
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