There are apparently two issues involved here.
Tillotson was representing the man for one crime. The police considered him as a suspect in a separate crime which was unrelated to the one which Tillotson was representing him for. So they were taking photographs of the man (presumably to show to a witness).
So the issues are whether Tillotson was the man’s lawyer in this context and whether the man was entitled to legal representation while being photographed.
Legal representation while being photographed - is that a thing?
Do the police have some special right to photograph people they aren’t detaining, such that anyone interfering with such a photograph would be subject to arrest?
Is the defendant’s right to counsel’s presence in an criminal investigation a civil right?
No.
In a custodial interrogation, you have the right to an attorney.
I am unaware of any case extending the right to an attorney while the police are attempting to take a picture of you.
In a non-custodial interrogation, is the First Amendment right to free assembly violated when the police exclude the interrogee’s attorney from an otherwise public place, such as a courthouse?
“The right to an attorney,” is not one that applies to every person at every time. You have a right to an attorney at significant phases of criminal prosecution.
In this case, the guy was in custody for Crime A, and the police were apparently investigating Crime B by taking photographs of the man, as opposed to questioning him.
Can you explain specifically how the “right to an attorney” was violated here?
As a general rule, the police have broad powers to temporarily prevent people from their “First Amendment right to free assembly,” when in the middle of an investigation. For example, you have no First Amendment right to wander up and freely assemble with your pal who’s been placed in handcuffs pursuant to a detention for investigative purposes.
As with so many other things, the length and extent of the police action needs to be reasonable; the police can’t cordon off a city block for a year.
Are you saying that the “federal civil rights violation” get lives spoke of was the lawyer’s First Amendment right to freely assemble?
Is it strictly during interrogation and court appearances? Or are there other aspects of a criminal prosecution (in which you’re the subject) when you’re entitled to legal representation?
I don’t know the law in this case but the police were obviously taking photographs of the man in order to gather evidence that would be used against him - which would seem to qualify as a significant phase of criminal prosecution. I think a lot of people in such a situation would like legal advice on whether or not they have to co-operate with being photographed. But do they have a right to legal representation?
I suppose the question is whether taking photos of a “suspect” is considered interrogation - in which case the arrest has to be performed first?
Is taking photos a permitted interview technique if the suspect is not arrested? He is not obliged to answer questions, therefore he should not be obliged to allow his picture to be taken if not arrested. IANAL - That’s something where a real lawyer could inform us the specific legalities, it’s a very specific detail.
Similarly, yes, you and I cannot insinuate ourselves into a conversation (interview or interrogation) between a police officer and the person he wants to interview, we’d be obstructing the investigation. However, a lawyer can - it’s the interviewee’s right. If the lawyer says “my client does not want to answer questions, my client does not want their picture taken” presumably that’s the client’s and lawyer’s right. All interview is over unless the person is arrested. (comment from real lawyer, anyone?) the lawyer standing between the policeman’s camera and her client did not obstruct the officer from asking questions (not that he had a right to continue that either).
Police can detain a person to further an investigation - there’s Terry stops, pulling over automobiles, etc. I fail to see how this corridor interrogation works as reasonable under those sorts of excuses. Terry stop- check for weapons? In a court building??? Need to positively ID suspect before he disappears? Huh, it’s nowhere near the crime scene and positive ID is a moot point, he’s already a defendant in a trial, about as positive as identity gets. This “interview” would fall under the category of more like a knock on someone’s door asking to talk to them, not an investigation of a crime where if the person is not stopped and ID’d and checked for dangerous weapons, a critical opportunity is lost.
There are two potential civil rights claims that I see.
One is for false arrest. The police cannot arrest you without probable cause that a crime has been committed. She was asked to move away from the guy and disobeyed, but I’m not sure that was a lawful order. If the police were merely exercising their right to take a photo in a public space, I’m not sure that empowers them to order the crowd around to pose the photo how they like it. The issue here would be whether they have such a power under California law.
The other is for the arrest as retaliation, either because the officer wanted to punish her for giving advice to the guy or for informally representing him. On that theory, it doesn’t matter if there is probable cause for the arrest if the real motivation was not enforcement of the resisting arrest ordinance but instead a desire to punish the lawyer for constitutionally protected conduct.
Neither is an open-and-shut claim, by any means, but they are certainly colorable.
The man’s right to an attorney was violated when the police arrested the man’s attorney because he was acting as the mans’ attorney. How is that not acting against the man’s right to an attorney?
Now, I don’t think it’s clear exactly what the attorney did, so there’s a question of fact there. If the attorney was unprovoked physically attacking a police office, clearly that is not acting as an attorney, so there’s no civil rights issue with arresting him. [In reality, I kind of doubt that happened, or the attorney would have been charged with a lot more than Resisting Arrest].
But if the attorney was telling his client “You don’t have to talk to the police or let them photograph you”, that’s pretty clearly giving (good, accurate) legal advice. And preventing the attorney from giving that advice (by keeping the attorney from approaching his client when his client was not under arrest, arresting the attorney, or even just threatening negative consequences to the attorney ) is just obviously going to negatively affect the man’s right to legal advice, right?
Heck – assuming the attorney was just giving advice and got arrested-- I’d think nearly any defendent in the police’s jurisdiction now has some justification for claiming a civil rights violation. “Yes, your honor, I do have an attorney. He told me that after seeing what the cops did to that other defense attorney, he wouldn’t meet with me more than once, or come to the courthouse for my trial”.
[As I recall, Soviet-era show-trials usually had defense attorneys. They knew exactly how little resistance to put up and still keep healthy. Do you think the show-trial defendents had effective counsel? Not saying that San Francisco is at that point, but it’s why we can’t let anything like this start.]
So far as I’m aware, no. The right to an attorney during interrogation is grounded in both the Sixth Amendment right to counsel and the Fifth Amendment right to avoid self-incrimination. But that Fifth Amendment right, in turn, is limited to testimonial evidence. A person can refuse to talk pursuant to the Fifth Amendment, but can’t refuse (on those grounds) to provide non-testimonial evidence such as fingerprints, blood, or a photo of his face.
Right. I’m trying to determine what civil right is in play. Both of those are violations of the attorney’s rights. The earlier commentary suggested that some right of the client was in play.
But the attorney is limited in what they can do. They are allowed to offer legal advice but they can’t just do anything that impedes the investigation. They can’t, for example, break into a line-up room and put a mask on their client so a witness can’t see their face.
If the police had a legal right to photograph the suspect and Tillotson was trying to stop them from doing it, then she wasn’t acting as an attorney.
I still say the client’s rights WERE violated. I don’t think the case law has established a precedent yet, but no reasonable standard would allow the arrest of an attorney, while in the process of acting as a client’s attorney for one charge, to be prevented from acting as their attorney for another charge. The right to an attorney must prevail in this case. I guarantee the SCOTUS would agree. Why would 9 lawyers affirm the right of lowly police to arrest them on such grounds? ROFL
I actually don’t think the attorney’s 1st amendment rights were violated strictly speaking, UNLESS that CA statute re: resisting arrest ever ends up struck down as being unconstitutional. IMHO, anyway.
This police action makes no sense to me. I’m not sure which California law(s) cover the arrest but it’s obvious why the attorney was released.
*California Penal Code Section 849
It isn’t clear whether the person being photographed was currently in custody because it appears that he was standing, unescorted(?), in the court house hallway. Regardless, the PD already have photos of him from his last arrest(s). There would be no reason for police to detain someone to obtain photos that they already possess?
It seems logical (if that can be applied here) that the detained/arrested attorney should be discussing her arrest with the State Attorney’s office. There should be some type of protocol, if not actual laws, rules, or regulations, in place to prevent the arrest of a lawyer for advising their clients.
If I’m not mistaken - there’s video of the arrest - I’m an uninformed layman, but it’s hard to see how this police action is reasonable - there’s neither violence nor disruption, nor physical threat to the safety of police or bystanders - nor is the attorney blocking the angle from the policeman’s camera to the suspect.
Is there any reasonable interpretation of the video other than that the police found it inconvenient for their suspect to have an attorney present and therefore arrested her on a pretext?
Less than a month ago, a Saudi Arabian court sentenced a human rights lawyer who defended a Saudi atheist activist to 15 years in prison for “incitement of public opinion against the authorities.” Presumably, in a democracy like the United States, defendants have some expectation that they may get a lawyer, and that the government cannot imprison their lawyer in the same way. Bricker, do people in the US have some constitutional protection against the same fate that Al-Khair is suffering, or is it only the legislature and the executive’s fear of public outcry that prevents such a thing from happening in the US?
I ask because it seems silly to expect myself, untrained in the law, to know which constitutional protection is being violated when some apparent injustice is seen, when you are a trained lawyer, and should be in a much better position to know whether there is any constitutional protection against imprisonment of a suspect’s attorney.
But the police didn’t prevent the lawyer from acting as the client’s attorney at any stage for which an attorney is a civil right. That is, your phrasing invites a reader to conclude that the police may prevent the lawyer from appearing at arraignment, or during questioning. The police didn’t do that.
You’re of course welcome to believe whatever you like. But I wasn’t asking so much what your imagination might construct in the way of civil rights, but rather what civil rights as currently supported by statute or case law were violated. I apologize for not making that clearer.
And yet you can’t actually point to any case law in support of this claim.
This would be a good case to establish that precedent, though it doesn’t look like the public defender plans to sue. Perhaps the ACLU will take up that fight, though.
The ACLU could represent the public defender, but the organization itself doesn’t have standing to sue.