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Those of us in the criminal defense community were outraged yesterday at the news that San Francisco Deputy Public Defender Jami Tillotson was arrested for preventing police from questioning or photographing her client at the San Francisco Hall of Justice.
"If you continue with this, I'll arrest you for resisting arrest," Police Sgt. Brian Stansbury paradoxically told Tillotson, who was, in fact, arrested. (After her arrest, Stansbury took photos of her client anyway, so take that!)
How can you be pre-emptively arrested for resisting arrest?
It's More Than Just Resisting Arrest
"Resisting arrest" isn't really what's going on. In a cellphone video of the altercation, Tillotson is heard to say, "There is no 148. I'm not resisting arrest. There is no 148." And it's true: In the video posted online by the San Francisco Public Defender's Office (and embedded below), Tillotson doesn't appear to resist the arrest at all:
Penal Code Section 148, however, is broader than just resisting arrest: It prohibits "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment."
As you might expect, "[t]he lawfulness of the officer's conduct is an essential element of the offense." If an arrest was unlawful, or if the duty the officer was discharging wasn't lawful, then resisting that can't be a crime. "[W]e cannot ascribe to the Legislature an intention to penalize the exercise of a right it has specifically bestowed," the California Supreme Court said in 1969.
Is There a Crime Here?
"Police are claiming lawyers are only allowed to counsel a suspect when they are being formally interrogated for a crime," reported San Francisco's KGO-TV. We're not sure if that's what police actually claimed, or if it's a reporter's misinterpretation of what police claimed, but either way, it's an incorrect statement of the law.
Lawyers are free to counsel their clients at any time. The Fifth Amendment right to counsel (as opposed to the Sixth Amendment right to counsel) can be invoked once a suspect is in custody and being interrogated, but all that means is that police questioning must cease once the suspect asks for a lawyer, and can't resume again until the lawyer is present.
The dispositive questions are whether standing in the way was "obstruct[ing]" and whether photographing the client was lawful. It's beyond question that Tillotson was well within her rights (and her client's) to advise her client not to speak to police. Tillotson could certainly advise the client to avoid being photographed; she could have told him to put his hands in front of his face, for example.
The trickier part of this situation is that Stansbury wanted to photograph Tillotson's client. She wouldn't get out of the way so he could do that. But is photographing a person in public a "duty" of a police officer? It may very well not be; a "duty" is an obligation, and California courts have held that failing to identify oneself during booking is a Penal Code Section 148 violation because identifying suspects during booking is an obligation of a police officer. Failing to identify oneself prior to booking, however, doesn't qualify. Consequently, it seems that photographing someone in public who isn't under arrest isn't a "duty."
These questions are purely academic, of course. One hopes that no sane DA will prosecute a public defender for this.