Obstruction-Я-Us

Years ago, I got a t-shirt from the National Criminal Defense College in Macon, Georgia that read on the back, “I plead guilty to obstruction of injustice.” It was a cute shirt, but it carried a kernel of truth. It’s what we do. We obstruct. Criminal defense lawyers get in the middle of the smooth operation of law enforcement and make everybody’s job more difficult.

San Francisco public defender Jami Tillotson did her job the other day, and it was captured on video. Two guys, one of whom was her client, left court only to be seized by Sgt. Brian Stansbury. For reasons not entirely clear (though speculation is easy enough that the guys were potential suspects in some other case), Stansbury wanted to interrogate and photograph them.  That’s his job, identifying suspects of crimes.

Tillotson came out, told Stansbury that she represented one but not the other, and on his behalf, asserted his right to counsel to preclude further questioning.  She stood there and blocked his easy access to photographing her client, who was standing against the wall.  Presumably, that’s where Stansbury put him, back to the wall.

Stansbury told Tillotson that if she didn’t get out of his way, he would arrest her for resisting arrest. With remarkable grace, she stood her ground and held her hands behind her to be cuffed.  One might suspect this would be about as clear a situation as possible, particularly since it was all on video. Instead, massive confusion ensured about what all of this meant.

First, there was the question of how Stansbury could question a represented defendant.  The problem is that offense for which Stansbury was questioning the guy was different than the crime for which Tillotson represented him. That’s allowed by Texas v. Cobb. It’s bad law, but that’s the law.

Second, what about Miranda? If the guy was seized, meaning a reasonable person in the guy’s position would not believe he was free to leave, then this was a custodial interrogation, in which case the police would be required to administer Miranda warnings. There is no indication they did.

More importantly, if he was seized, the police would need reasonable suspicion, which they apparently lacked since they were taking pictures, which suggests they wanted to show them to the complainant for identification. Absent an ID, these were just two potential suspects, who may or may not have had anything to do with a crime.

But then, if there was no basis to seize them, and they were free to go, why would it be a problem for Tillotson to assert the rights of her client?  Yeah, well, that’s the problem with the fallacy of a non-seizure seizure. They’re free to go so as not to invoke rights, but try it and watch what happens.

Third, if the police were entitled to ask questions, and Tillotson didn’t represent him for the purpose of this offense, why did she intervene?  Because she can.  Just because the guy didn’t automatically get the benefit of being represented because of lousy law doesn’t mean Tillotson, as a lawyer, can’t step up to the plate on his behalf. And she did.  While his 6th Amendment right to counsel may not automatically attach, he still has it, and it can be asserted by his lawyer.

Not only can she assert his right to refuse to answer questions, but she can intervene to protect him from a seizure without reasonable suspicion.  And if he was seized unlawfully, the police cannot force him to stand there to take some pics of him. Sure, they can photograph him in public just like anyone else, but they can’t require the guy to stand there and make it easy for the cops.  Tillotson realized this, and stood in front of her client.

Fourth, how is it possible for Tillotson (or anyone else) to be arrested for resisting arrest without any predicate offense of arrest? It sounds inconceivable, but then, it’s necessary to look at the resisting arrest statute, which in California is Penal Code 148(a)(1):

148.  (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

So, resisting in California includes obstructing. Don’t let the title of a crime fool you, as many apparently did in their consideration of this scenario.  Did Tillotson obstruct Stansbury? You bet your ass she did.

Fifth, was Tillotson wrong to interfere, to obstruct, the police in the performance of their duty to protect us?  In the rush to get a quote, the SF Gate ran to the nearest lawprof, Hadar Aviram, for comment. Aviram immediately infected the narrative with confusion and ignorance.

Hadar Aviram, a professor at UC Hastings College of the Law in San Francisco, said the rights of Tillotson and her client during the confrontation appeared to be “a stickier legal issue than it seems.”

Perhaps she meant she didn’t have a year to research and prepare a law review article before responding, but as any lawyer could have easily explained, there was nothing sticky (or “stickier”) about it.

Tillotson obviously “obstructed” Stansbury’s attempt to engage in an unlawful seizure, interrogation and photographing of the guy.  She did so by asserting his constitutional rights, and there is nothing sticky about her authority to do so.  Constitutional rights trump the claim of obstruction; indeed, they exist to obstruct the police from doing whatever they please.

The public defender’s office is arguing that Tillotson’s client had a right to counsel. But Aviram said that for the right to counsel to apply to this situation, the officers would have to be questioning Tillotson’s client about the theft case for which she was representing him.

It may be that the reporter misapprehended the nuance of Texas v. Cobb, that the right didn’t automatically attach because Tillotson represented the guy in an unrelated matter, but the guy still had a right to counsel nonetheless, and Tillotson, as would any attorney, had the authority to stand up for him on the new case. To the extent Avirom suggests otherwise, she is absolutely, totally, completely dead wrong.

While there may be some argument about whether Stansbury’s seizure was custodial (though I doubt it), there is no argument that Tillotson’s assertion of rights on behalf of her client was not merely lawful, but in the finest tradition of the profession.  She stood between her client and the police, and didn’t flinch when threatened with arrest by the cops for doing so.

And in response to all this, the police claim they’re “investigating,” which apparently means they’re trying to figure out a way to save face from this absurd abuse of power by arresting Tillotson for doing her job too well. If there is anything “sticky” about this, it’s how the cops are going to mislead the public into thinking this wasn’t a flagrant outrage.  And the first step is misinforming the public about what happened here.

Let there be no mistake: lawyers obstruct the police. At least good lawyers like Tillotson do.

56 thoughts on “Obstruction-Я-Us

  1. William Doriss

    How did you turn your “R” around? Inquiring Minds! You will be hearing from Toy R Us counsel in due course.
    Tillotson was heroic. Some of us wish we’d had a PD like her when we needed one. “Lawyers obstruct the police.” That is a new one. Law school syllabi must now be revised.

  2. Brooklyn Criminal

    As a public defender, I have obviously been very tuned into this story. Even my pro-defense, anti-cop mind has wandered into speculation about “the rest of the story” and supposed context. I think back to the times I’ve been toe to toe with a cop, court officer, or straddling the line of contempt with a judge, and I say to myself, “but I’ve never been arrested.” There is, however, a huge difference. Counselor Tillotson is a female. Only one person really knows, but I would wager that if a ‘Mr. Tillotson’ were performing his duties as well as his female counterpart did, Mr. Officer Stansbury never would have made an arrest.

    1. SHG Post author

      Be very circumspect about imputing motive where there is no factual basis for it. Is it possible? Sure. Is there any basis for such speculation? No. Once we get into wild speculation, we lose the advantage of reason and factual foundation. We also give the other side permission to engage in speculation of their own. No one is better off for it, and it tends to make everyone stupider for the effort. Best to stick with what the facts show, no matter where our bias might push us.

        1. SHG Post author

          And lest there be any mistake, I thought Tillotson handled herself magnificently. For the assholes who scream that PDs are “public pretenders” and all suck, let them watch her stand up for her client and say that.

          1. Not Jim Ardis

            Would it be speaking out of school to say that anyone who either is, or who hopes to one day be, defense attorneys should hope they would handle themselves in the same way?

  3. Andrew

    But can the lawyer assert the suspect’s constitutional rights without his doing so or asking her to do so for him? Doesn’t he have to do it for himself?

    1. SHG Post author

      Of course the lawyer can act on her client’s behalf. While the Texas v. Cobb exception to Massiah allows the police to question a represented defendant on an unrelated charge, it doesn’t strip the lawyer of her authority to act on her client’s behalf. There is no rule that a person has to personally utter the invocation of rights and that his lawyer can’t do so on his behalf.

      1. David M.

        I think homie was asking whether the guy being interrogated needed to consent to Tillotson’s representing him for the second, unrelated charge before she could do so.

        1. SHG Post author

          That could be, but it’s the wrong question. Tillotson didn’t need the guy’s permission to be his lawyer. She was his lawyer, which isn’t changed by Texas v. Cobb. He could have disavowed her representation, as part of the 6th Amendment right to representation is the right to discharge a lawyer, but he didn’t.

          1. Bartleby the Scrivener

            …and that answers my question. This is a rather putrescent abuse of power on the part of the police then, isn’t it? I don’t expect them to be lawyers, but arresting an attorney for this goes too far.

            *sigh*

            Rome falls.

  4. Alice Harris

    As a female public defender myself, I am extremely proud of Ms. Tillotson. I hope I would have been as cool and correct in this circumstance. Good job!

  5. Jason Truitt

    I don’t know, I think she could argue that any other offenses might serve as an enhancement of the one for which she represented him, and cast a net wider than Tx v. Cobb.

      1. Jason Truitt

        For you and me, maybe. But for some state-oriented former prosecutor who happens to be wearing a robe you may need more than the facts and the law on your side.

  6. John Barleycorn

    Jami’s “Please do…” retort immediately prior to being handcuffed was as spunky as it was polite simultaneously.

    Oddly refreshing…

  7. Roger

    What is not compelled is forbidden. Therefore, if the Supreme Court has said that law enforcement is not required to provide defense counsel, it must be improper for an attorney to be involved.

    I knew that many cops and some judges on Team Prosecutor believed this to be the law, but it is disheartening to know that there are law profs with defense experience who, when asked to comment, don’t immediately call BS on it.

  8. Jorge

    Two legal errors in your analysis needs correcting.

    If, as you assert, the cop needed only “reasonable suspicion” rather than PC for this detention of the client (which I suspect is right, given the brevity, the limited tasks the cop intended to accomplish, and the fact that the client wasn’t moved) then it’s hard to see how the detention amounted to the equivalent of formal arrest — in which case there’s no custody for Miranda purposes. Which would make the presence or absence of warnings irrelevant.

    Also, in many systems, the PD’s authority to provide representation, under the statutes establishing and funding the office, require appointment by the court, which is case-specific. (It makes sense: California doesn’t want to end up paying for its PDs to provide representation in out-of-state cases, or civil matters, etc. And they may only want to pay for representation where constitutionally required — i.e., after the right to counsel attaches at the formal commencement of proceedings.). In that case, the PD wouldn’t have the ability to agree with her client to expand the scope of representation. That said, it’s conceivable that when she represents the client on the in-court matter, the pre-charge matter is sufficiently intertwined (it’ll certainly affect sentencing and bail) that it’s within the scope of the existing representation. And, in fact, I suspect that’s everyone’s common understanding, since it’s pretty common for prosecutors to bargain about uncharged offenses to make a package deal with the charged offenses.

    The main legal point, however, is that this cop is a real dummy. He accomplished essentially nothing. (If he needed a photo/description of a guy with a current case, why didn’t he just look at the booking info? Or look for the guy on the street, in which case he could have used the refusal to be photographed/talk as consciousness of guilt in a later trial?). And he tainted any subsequent photo/statement as obviously nonconsensual.

    1. SHG Post author

      As to your two issues, the question for Miranda purposes is whether the interrogation is custodial, not whether he’s under arrest. Custody and formal arrest are not the same.

      Custody means only that a reasonable person in the guy’s situation would not believe he’s free to leave. A person can be in custody without being arrested and, after investigation, the police can decide not to arrest and let him go.

      Second, as to the PD’s authority, that’s a red herring. The PD doesn’t need to be appointed to assert her authority as his lawyer. While she may not be free to represent anyone of her choosing, whether by contract or statute (I’m not aware of any law in CA precluding her, but I’ll assume for sake of argument), she is still a lawyer and can act pro bono if she chooses.

      So that has nothing to do with her authority. And even if it did, that wouldn’t negate her assertion of rights, but merely create a secondary issue between her and her employer or the court. As far as Stansbury was concerned, she was doing her job and he wasn’t in a position to dispute it.

      1. Ron

        “To determine whether a suspect was in Miranda custody, we have asked whether there is a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ . . . Our cases make clear, however, that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda detention. . . Thus, the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Miranda custody.” Maryland v. Shatzer, 559 U.S. 98, 112-14 (2010) (citations omitted).

        1. SHG Post author

          You know what’s funny about a temporary Terry stop? It’s only temporary if they let you go afterward. If they don’t, then it’s not. Same stop. Different duration. How does one tell which is the “nonthreatening detention” from the very threatening detention until it’s over? But that would completely screw up “Miranda custody,” which makes no logical sense at all.

          1. Legal Cynic

            Additionally, whether or not one wants to argue if this detention was sufficient for a “Miranda custody” (a seriously flawed and BS distinction, in my opinion, but that is why I- as a former PD and now private- am now cynical on the entire circus), it still doesn’t change the fact that the detention was certainly enough for his right to an attorney to be applicable.

    2. Myles

      Two legal errors in your analysis needs correcting.

      Needs correcting? Could you be a bit of an more obnoxious douche? You might disagree, but “needs correcting”? Who made some unknown dickwad named Jorge the King of the Law?

  9. David

    In addition to the point in your post about what would happen if he’d tried to leave, did the circumstances prevent him from being free to leave? That is, assuming he was waiting to be called into the courtroom, he wasn’t really free to just leave (and possibly not be present when called) to avoid being photographed. While that circumstance was not due to the police officer, it was due to the justice system as a whole…

    1. Legal Cynic

      If you listen to the video, you will hear the plain clothes detective Stansbury tell Ms. Tillotson that once he takes her client’s pictures and talks to him for a few minutes, then he will be free to leave. That makes it a detention by police.

  10. Peter H

    With the obstruction statute, if the seizure of her client was unlawful, wouldn’t that make an obstruction charge impossible? That is, the cops can’t have a duty to discharge that includes unlawful seizures, and since there can be no duty to unlawfully seize, there can be no obstruction of an unlawful seizure.

    1. SHG Post author

      No. There is no predicate criminal act requirement. There is no obstruction because her conduct was consistent with the guy’s constitutional rights. And that’s a good enough reason.

      1. Peter H

        I’m not talking about a predicate criminal act requirement. I mean that if the officers were engaged in an unlawful seizure, obstructing them couldn’t be a crime, since they weren’t discharging their duty, and the crime of obstruction only applies to when they’re discharging their duties.

        That is, can it be obstruction/resisting to obstruct the cops from breaking the law?

        1. Legal Cynic

          As mentioned above the duties that the officers are discharging must be lawful duties or the lawful performance of those duties. Thus, besides the constitutional argument, there is a defense to this by claiming the duties were not lawful (unlawful detention), and are covered in CALCRIM 2656 and 2670. CALCRIM lays the lawful performance or duty as an element of the PC 148 that must be proven by the prosecutor beyond a reasonable doubt (so technically it’s an element, not a defense, as I misstated above).

  11. patrick le floch

    If Penal Code 148(a)(1): states that one cannot willfully obstruct, could she have also been arrested for interfering the Sgt’s verbal interaction with the suspects, by instructing “dont talk/answer” to her clients, for example?

  12. Not Jim Ardis

    I’m interested in the implications of the cops taking the pictures of her client after they arrest her for doing her job (trying to prevent them from taking pictures of her client).

    Pity the courts won’t share my interest and would allow whatever results from the pictures (taken after the client was deprived counsel) to stand. Or so I assume, because I’m a cynic.

    1. SHG Post author

      I wouldn’t assume that. I would expect any identification procedure based upon these pics to be suppressed as obtained in violation of his constitutional rights. That’s what I would expect. What will happen may differ.

  13. bacchys

    While I’ve no doubt the law will allow the state of California to bring the hammer down on Ms. Tillotson, as anyone who would defend those scum-of-the-earth criminals surely deserves, it still seems to me like a stretch even of Texas v. Cobb.

    If he wasn’t being detained, she is at most guilty of butting in on a conversation. If he was being detained, then he certainly had a right to attorney while being questioned. I suppose since he didn’t shout that he wanted an attorney at the top of his lungs- and violate the peace while doing so- then she didn’t represent him in that particular matter.

    I do like how the police insist this wasn’t a custodial situation, but the cop with the cell phone makes it clear the gentleman isn’t free to leave until his picture is taken…

    1. Jonathan

      Oy.

      I don’t know where to begin on this, but you’re clearly in the wrong here.

      Yes, someone who commits a heinous crime may well be the scum of the earth. However, you mistake the role of defense counsel. I am not a lawyer and someone may correct me, but here I’ll try it.

      In this country, if you were ever to be accused of a crime, you would have certain rights. And the job of defense counsel is to ensure that those rights are observed. Just because someone is scum and steals a candy bar doesn’t mean that it’s right to pin every bad action in human history on him and summarily execute him.

      I hope, for your sake, that if you’re ever accused of a crime, even falsely, you have someone as noble as Ms. Tillotson to defend you. Or, maybe, you’d rather be defenseless because that’s the world you want to live in.

  14. Pingback: Give A Cop The Constitution | Simple Justice

  15. Faz

    Thank you for a very informative article that identifies many of the issues not discussed elsewhere. Regarding “obstructing” the discharge of a peace officer’s duty as defined in California Penal Code 148(a)(1), which is quoted in the Blog article, the Code safeguards the discharge of the duties of a Public Officer just prior to mentioning Peace Officer; “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician…”. Tillotson is a “Public Officer” because she is a Deputy Public Defender (she is also an Officer of the Court because she is so licensed by the Supreme Court of California). If Titillation is presumed to have been obstructing Stansbury’s duty, then Stansbury must be presumed to have obstructed Tillotson’s duty. Here her duty is to represent a citizen or her client exercise a constitutional right. The Constitution is the supreme law of the land and Constitutional Rights trump all other rights.

    1. SHG Post author

      Law doesn’t work that way. “Public officer” isn’t whoever you want it to be, but defined by law. Being an “officer of the court” doesn’t make Tillotson a public officer.

Comments are closed.