(dissenting). The court of appeals concluded correctly that the deputies are not entitled to qualified immunity. A reasonable person would have known that no Wisconsin law *359authorizes an arrest based on a person's failure to furnish his or her name and thus the arrest violated Henes's constitutional rights. For this reason, I dissent.
Before addressing the issue of qualified immunity, the majority first explores whether the deputies relied on the requisite reasonable suspicion to perform an investigatory stop. The majority determines that the deputies' suspicion that Henes was involved in the auto theft was in fact reasonable. It bases this conclusion on the following factors: the deputies spotted Henes at 2:35 a.m., he was within nine miles of a reported crime, and the deputies had experience dealing with the same type of reported crime. As a backup argument, the majority correctly explains that when the officers saw Henes they could inquire whether he required assistance.
I agree that minimal investigation is justified as "a reasonable balance between individual privacy and the public interest in allowing the police a reasonable scope of action in the discharge of their responsibility for general maintenance of peace and order in the community." Bies v. State, 76 Wis. 2d 457, 472, 251 N.W.2d 461 (1977). Although Henes's walking at night arguably provokes concern for him, the factors the majority relies on appear closer to hunches and are not quite articulate enough to support the investigatory stop in this case. Nevertheless, even assuming that the stop was valid, this conclusion is not determinative of the issue of qualified immunity because the deputies arrested Henes.
The majority next concludes, as it must, that the deputies lacked probable cause to arrest Henes for obstruction. It finds unpersuasive the deputies' contention that sec. 968.24, Stats. 1991-92, authorizing law *360enforcement officers to demand a suspect's name, allows officers to arrest a suspect who refuses to comply with that demand. Majority op. at 353-54.
Furthermore, the majority reasons that the "plain language" of sec. 946.41, Stats. 1991-92, the obstruction statute, applies only to a person who "knowingly gives false information," not to a person who gives no information. Majority op. at 354-55. Finally, the majority agrees with the conclusion in State v. Hamilton, 120 Wis. 2d 532, 356 N.W.2d 169 (1984), that the obstruction statute would have to be rewritten to authorize the arrest of someone who refuses to provide identifying information.
After its unequivocal conclusion that no law in Wisconsin allows officers to base an arrest for obstruction on a person's refusal to relinquish his or her name, the majority curiously finds that a reasonable officer could have considered the state of the law unclear. The majority ignores its earlier conclusion that the obstruction statute plainly forbids such an arrest, hedges on the clarity of Hamilton, and invokes unrelated cases to argue that the United States Supreme Court has declined to resolve the issue "of whether an officer may arrest an individual lawfully detained for refusing to identify himself or herself." Majority op. at 357.
First, I agree with the majority's conclusion that the obstruction statute plainly forbids an arrest based on a person's failure to reveal his or her name.
Second, I conclude that Hamilton decisively prohibits an officer from using the obstruction statute to arrest someone who refuses to give identifying information. " 'Obstruction' is an element of the crime which the state must prove beyond a reasonable doubt. The legislature has not stated that a refusal to furnish identifying information is deemed to be obstruction, and we *361are not willing to rewrite sec. 946.41(1) as the state requests." Hamilton, 120 Wis. 2d at 543.
Third, I found no case in which the United States Supreme Court has been asked to resolve the issue presented in this case, namely whether officers may arrest persons for refusing to identify themselves in the absence of a statute making it a crime to do so. The three cases cited by the majority involve statutes or ordinances making it an offense for persons stopped by law enforcement officers to refuse to identify themselves under certain circumstances. The Court determined in each case the constitutionality of an arrest under the applicable legislative enactment.1 There is no statute in Wisconsin similar to those *362involved in the cases before the Supreme Court criminalizing failure to identify oneself.
All crimes in Wisconsin are statutory. Section 939.10, Stats. 1991-92, declares that "[c]ommon-law crimes have been abolished in Wisconsin." A crime is made up of two parts: proscribed conduct and a prescribed penalty. "The former without the latter is no crime." Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, sec. 1.2(d) at 9-10 (2d ed. 1986). In this case no statute penalizes a refusal to identify oneself to a law enforcement officer, and no penalty is set forth in the statute for refusing to identify oneself. Section 968.24, upon which the deputies and the majority opinion rely, is not in any chapter defining crimes and setting forth penalties. This statute is part of Chapter 968 entitled "Commencement of Criminal Proceed*363ings." By its very terms sec. 968.24 empowers a law enforcement officer to stop and question "in the vicinity where the person was stopped." The statute does not authorize a law enforcement officer to make an arrest.
Furthermore, if a person is convicted of an act or omission prohibited by statute (that is, if refusal to identify oneself were prohibited by statute) and no penalty were expressed in the statute for the prohibited conduct (no penalty is prescribed here), the person is subject to a forfeiture not to exceed $200.00, making the offense a civil violation, not a crime. Section 939.61(1), Stats. 1991-92. The legislature has abolished common-law penalties in Wisconsin. Section 939.61(3), Stats, 1991-92. See also sec. 968.07 (authorizing warrantless arrest for commission of a crime, not a civil offense); sec. 818.01 (providing that no person may be arrested in a civil action except as prescribed by ch. 818; nothing in ch. 818 authorizes an arrest for a civil violation falling within sec. 939.61(1)).
Thus the deputies and the majority have to rely on the obstruction statute for the definition of criminal conduct and a penalty. I am convinced by the majority opinion's discussion of the obstruction statute itself (as well as the clear judicial language in Hamilton discussing the statute) that no reasonable person could believe that the obstruction statute includes within its terms persons who fail to identify themselves. Nor could a reasonable person determine that any other statute authorizes the arrest of persons for refusing to state their names.
Accordingly, I conclude that no reasonable person could have believed authority existed to arrest Henes for failing to provide his name. Hence, the deputies in this case are not entitled to qualified immunity.
For the reasons stated, I dissent.
*364I am authorized to state that Chief Justice Nathan S. Heffernan joins this opinion.