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.