In a free society, citizens are not subject to arbitrary commands to “show their papers,” or prove their identity. That was the fate of African-Americans who had to show their “free papers” during slavery, and the fate of Jews who had to show identification papers in the Warsaw Ghetto. * * * To permit law enforcement officers to ask for and to check out passenger identification under these circumstances opens a door to the type of indiscriminate, oppressive, fearsome authoritarian practices and tactics of those in power that the Fourth Amendment was designed to prohibit.

Judge Mitchel E. Ostrer

The above is quoted from New Jersey Superior Court, Appellate Division Judge Mitchel E. Ostrer in his concurrence to the court’s December 30, 2020 opinion in State v. James J. Kerns, Docket No. A-4731-17T1. In that case (which is unpublished and thus, non-precedential), a three-judge panel ruled that a passenger in a vehicle lawfully stopped for traffic violations was under no duty to identify himself to State Troopers. The court held that the Trooper’s “persistent efforts to ascertain [the passenger’s identity] violated [his] right to be free from an unreasonable search or seizure, because it prolonged the stop without furthering its traffic-related mission, and was not independently supported by reasonable and articulable suspicion of wrongdoing.”

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]