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Saturday, October 16, 2021

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UncategorizedSF cops arresting lawyers is, sadly, nothing new

SF cops arresting lawyers is, sadly, nothing new

30 years ago, the ACLU sued and won a consent decree to prevent exactly what happened to a public defender in January

 

By Tim Redmond

FEBRUARY 4, 2015 — There’s an interesting twist in the case of the San Francisco public defender who was arrested for trying to prevent the police from unlawfully questioning her client.

This kind of behavior – and efforts to limit it – goes back 30 years, to the days when a young ACLU lawyer named John Crew was arrested by a police officer named Gary Delagnes in a case that led to a lawsuit and a consent decree by SFPD — to stop doing exactly what it appears the officers did at the Hall of Justice Jan. 27.

Crew, who had a long distinguished career at the ACLU, is now retired. But he remembers the incident clearly – and says that the arrest of Jami Tillotson has much broader implications.

“If they do this to a public defender doing her job in the corridors of the Hall of Justice,” he told me, “what does that say about what they’re surely doing on the street?”

Delagnes went on to become the head of the Police Officers Association. But in 1984, he was a cop who by some accounts was hassling homeless people in Hallidie Plaza.

Here’s Crew’s recollection:

The year before, the US Supreme Court had struck down California’s loitering law — PC 647(e) — which allowed police to demand ID of folks wandering or loitering in public places.  Kolender v. Lawson was that case. (Ed Lawson, you’ll not be surprised to learn, was a dreadlocked African American man arrested or detained something like 15 times under this law in 18 months by San Diego police when he refused to identify himself while walking in La Jolla which, as I recall, was his own neighborhood… where, esp. back then, his appearance made him stand out.)

So in 1984, there were stories one day with photos in, as I recall, both the Chronicle and Examiner, showing two SFPD officers (Delagnes and his partner) approaching homeless people — “undesirables” they were called then — in Hallidie Plaza, demanding IDs, and conducting random warrant checks in a brazen (intentionally publicized) effort to roust them from the area. I had to be in that area anyway for an appointment the following day, and my ACLU boss and I agreed I should stop by Hallidie Plaza on the way back to see if they were still doing this.  I did and they were.

I watched them from a distance (discretely I thought), taking notes as they approached a number of folks for no reason other than their appearance, demanded IDs, ran warrant checks, etc. They left Hallidie Plaza and started to walk north up Powell through a crowd, so I followed them still at some distance, but they had obviously noticed me and quickly turned around and confronted me about what I was doing.

Gary asked if I was another reporter. I said no. He demanded to know who I was and I politely declined. He demanded to see my identification and I politely said the law that had authorized them to demand ID of innocent pedestrians had been struck down the year before and I declined to provide it. Which quickly led to them pushing me up against a wall and placing me in handcuffs.

They ran my ID and found no warrants but, over my objection, they also rifled through a file I had with me that contained various papers on ACLU letterhead. They called for a wagon to pick us up — me in the back with another arrestee and them riding on a step on the back — and take us back to Southern Station. (One funny detail — from inside I heard through the air vent Gary’s partner say to him, “I can’t believe you didn’t know what the ACLU was!”)

As I waited in handcuffs at Southern, I saw Gary approach a sergeant who I saw shaking his head at whatever Gary was telling him and waving his hands in front of his face to shoo Gary away as though he didn’t want to hear what Gary was telling him. Gary, apparently discovering what I’d told him on the street to be true — that he couldn’t arrest me for loitering and not producing ID — then charged me with 148 — obstructing an officer. They took me upstairs but I was released prior to booking with Gary’s last words to me being “so, are you going to sue me?”

Crew did, of course – sue, that is – and the SFPD settled with an agreement that the police would not arrest people who were merely asserting their rights.

“Bottom line,” Crew told me, “you can only be arrested for violating PC 148 if you
willfully delay, obstruct, interfere or resist an officer in the exercise of his/her lawful duties.”

More:

“Does SFPD even concede the legal reality that people — lawyers or not — have the right to peacefully object to cops violating the law and their own policies? That
lawyer was so calm, polite and non-threatening on the tape that you’d think her conduct would be the perfect example for how people SHOULD exercise their rights and stand up for others without creating undue threats or dangerous situations for cops.

“If SFPD doesn’t like what she did, perhaps they should tell all of us a better way to respectfully refuse to submit to obviously illegal claims of authority by their
officers. To me, it’s not about what they did to a lawyer trying to represent her client. It’s about what that means for non-lawyers trying to exercise their rights on the street.”

Thirty years have passed. I met John Crew around the same time he was fighting that case; we’re both a lot older now. The SFPD is a different force than it was in 1984 – more diverse, with civilian oversight. But then this stuff happens, and you wonder: How far have we really come?

BTW: Matier and Ross presented the police version of events, which, shall we say, stretches the imagination:

According to well-placed sources, police Sgt. Brian Stansbury was in a courtroom when he heard that two suspects in a recent burglary were just down the hall — and they were wearing the same clothes that they supposedly had on during the heist.

So Stansbury grabbed a couple of cops and stopped the pair to take their pictures in hopes the burglary victims could identify them.

Seriously? Two suspects were in court in a different case, and were wearing “the same clothes” they had on during a heist? What would that be –jeans and a track-suit jacket?

This will come before the Police Commission as soon as tonight (during public comment, possibly; it’s not on the agenda) and I hope the panel asks Chief Suhr the question that Crew raised: If what Tillotson did was wrong, how is any civilian ever supposed to question police behavior?

Tim Redmond
Tim Redmond has been a political and investigative reporter in San Francisco for more than 30 years. He spent much of that time as executive editor of the Bay Guardian. He is the founder of 48hills.
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76 COMMENTS

  1. There was nothing ostensible about it/ It was a line of inquiry. There is nothing to see here, and certainly no cause of action.

  2. What part of “ostensibly investigating” did you miss? There was no investigation simply harassment. Suhr would have taken the chance to cover for the perp cop had the cover been there, but since this will end up in civil court, Suhr wanted to ensure that he was not actually lying when he could get caught lying.

  3. Then the photograph served a useful purpose i.e. it led to the knowledge that these two perps were not the perps in that particular crime.

    That in turn will better enable the cops to catch the real perps.

  4. We were talking about the perp.

    It was fine to not charge the PD because by then the cops had the photos they needed to hopefully nail the perp

  5. Yes, cops are well known for pressing charges that do not stick while failing to clear violent crime, so you are right that fraud would be a reasonable presumption when a cop like Stansbury fabricates a charge.

  6. Such a burden that the white cop must bear under the ordeal of reverse racism after being charged with civil rights violations by another sworn Officer of the Court!

  7. Guest, you must have watched a different video from me. The cop had a clear line of sight to photograph the perp and only then did the over-zealous PD insert herself between the two, thereby obstructing justice and an investigation.

    The cop only directed the PD away after she had moved to insert herself between the two, thereby grossly exceeding her authority and jurisdiction.

    There is no reasonable expectation of privacy from photography in a public place even if you are not a perp.

  8. Byyyy the way, arresting officer Brian Stansbury–now famous after over 1,000,000 views of the above video–is actually an ELECTED member of the Retirement Board that oversees SF’s $20 pension fund!

    He is also this Brian Stansbury:
    http://www.sfgate.com/crime/article/SF-cop-sues-claims-traffic-stop-racial-profiling-4979100.php

    A San Francisco police officer has filed a federal civil rights lawsuit against the city, saying he was racially profiled, choked and wrongfully arrested during a traffic stop by several colleagues [including Stansbury] who ignored him when he said he was an officer.

  9. The officer directed an individual away from their counsel without having custody in order to secure a clear photo. Nobody has the right to control the movements of another, especially to separate them from counsel in order to take a photograph, not even a cop.

  10. Guest, show me where in any statute, guideline or practice guide where a cop cannot take a photograph of a perp in a public place.

    You cannot.

    The cop was perfectly within his right to take a photo. Surveillance photography happens all the time. The perp here could have turned his back or walked away. The PD could have advised him to.

    What the PD cannot do is obstruct the cop in his investigation. By physically intervening her body between cop and perp, she made herself an accomplice. She over-stepped her authority.

  11. There is something illegal about a cop demanding that an individual restrain his conduct while an individual is actively consulting with counsel so that the cop can photograph him.

    There is something illegal about a cop abandoning teh requirements of the law for an arrest and then arresting an officer of the court for violating no law.

    I was hoping that this would all be plumbed in court at trial, but clearly Gascon and Suhr feared exposing their rot to sunshine.

  12. There was no intent to arrest anyone. It was simple evidence-gathering – a normal part of the investigative process. The perp could have walked away but he chose not to.

    There is nothing illegal about taking a photograph of someone in a public place.

  13. There was no effort made to arrest the perp. The perp was not an officer of the court bound by different rules. The police officer is an officer of the court. The police officer is bound by certain rules when a defendant is with counsel, rules which he seemed content to blow through as if they did not exist because he felt he could get away with it.

  14. But it’s not unusual for a perp to get arrested at the court house for a crime other than the one he is currently dealing with.

    Perps can get arrested immediately after a trial on another charge, or while attending a parole or probation meeting.. Moreover people get picked up on warrants when they go to fight a parking ticket or collect a towed car, if a warrant is out on them.

    Heck, if you wanted a find a criminal, 850 Bryant would be a good place to look as the place is full of them. And they don’t get immunity from investigation or questioning just because they are in a court house.

    On balance it’s probably OK to not prosecute this PD, who was guilty more of over-zealous tactics rather than criminal intent. But from what I saw, the cops were civil, reasonable and within their rights to opportunistic seek to gather evidence on the basis of what they saw as the fortuitous presence of a person of interest,

  15. As Officers of the Court inside the court house, both the officer and the attorney were bound by practices different than those applicable to an investigator pursuing a perp.

  16. A thoughtful analysis.

    Yes, engaging her client rather than the cop would have been better. Tillotson had no jurisdiction over the cop and confronting him was an over-zealous error of judgement.

    Your advice to “walk away” should be tempered with noting that evasiveness can imply something to hide, however.

    You are also correct that the suspect was under no obligation to hold still and pose. But the cop could have taken some shots anyway – perfectly legal and routine. As we appear to agree, the validity of that can debated later before a judge, just like with an illegal search, which again a lawyer should not try and physically stop.

    I’ll be interested to see if these suspects get convicted of this crime. If so, the cop’s diligence here should surely be commended regardless.

  17. There were two problems.
    First, the cop appeared to be “detaining” Tillotson’s client – a legally significant status that requires “reasonable suspicion” that he has committed a crime (“articulable facts” must support that suspicion, not just an “inchoate hunch”). We can tell it was a detention because the cop seemed to believe he had the right to tell the young man to hold still (after Tillotson was taken away, he did just that). Tillotson had every right to protest that there was a detention at all, and probably her best move would have been to advise her client to simply walk away from the officer. Of course the cop could have lawfully taken a photo of the young man as he walked away, but NOT ordered him to stand still for a mug shot. This “Sam” guy is actually right that in the end, if the cops asserted a detention of the client, Tillotson and her office would have had to fight in court to suppress the photos later on Fourth Amendment grounds. BUT I don’t think the cop had even asserted a detention, nor had he bothered to justify it to the lawyer, so the best choice would have been to advise him to walk away from the officers. She probable would have done this, but was trying to handle the situation politely first.
    The second problem was that Tillotson had the right to stand with her client in case he was questioned. The Sixth Amendment (right to counsel) would permit this even (or perhaps especially) in the context of a detention or arrest. The cop appeared to be telling Tillotson to step away, when Tillotson had every right to stay with her client. Under NO circumstances can the cops lawfully require a criminal defense lawyer to be separated from their client during questioning.
    We don’t know the exact scope of what the cops knew, what Tillotson knew, and what had been demanded of her or her client before the video started rolling. BUT the real point here is: simply by calmly and respectfully speaking for her client, even if the police ultimately had the right to detain and photograph him, there is NO WAY that Tillotson’s conduct rose to the level of “obstructing or delaying a peace officer” which is the legal description of the 148 “resisting arrest” for which she was arrested. As the ACLU spokesman in the article above wrote, if what Tillotson did justified arrest, then how is ANYONE supposed to ever peacefully protest police action?
    (P.S. Full disclosure, I’m a public defender too.)

  18. Wait, Sam is right. If the cop is just taking the photo of the perp, that is ok and should be. The legal person has no right to object, after all the entire progressive community is filming every move that cops make, even forcing cops to be filmed 24/7.

  19. The world won’t end if Sam and the rest of us are limited to two posts a thread. He’s smarter than most of us lefty losers who post here, but that’s not a sufficient reason to allow him to dominate thread after thread. He’s playing a long game trying to disrupt any civility and social discourse on this site, and hoping to denigrate its usefullness for the lefties to debate important topics with one another. The current economic and political situation in SF and Bay Area couldn’t be any better for the Sam’s of the world, so might as well disrupt any outlets where the beaten down lefties are gathering to talk amongst themselves.

  20. I seriously doubt that “Sam” is as willfully ignorant as he pretends to be. He certainly does enjoy stirring up reactions. Okay, he’s a troll. Personally, I don’t agree that he should be banned. He lays out talking points, and that’s useful.

    But it’s also useful to remember he’s a troll. So why make him happy by letting him know he’s raised your blood pressure?.

  21. He just never shuts up, filling the air with noise that nobody wants to hear because we’ve heard it all already.

  22. The new rules will be far more likely to remove your posts, which contain nothing but attacks on other commentators, then they are to remove mine, which are always on topic.

  23. If her “clients” were innocent, then why did Tillotson object to a photograph being taken? Surely as an officer of the court she wants a possible crime to be solved and the perps held to account, right?

    Moreover there is no reasonable expectation of privacy in a pubic place. Anyone can take a photograph of you in a public place.

    It looks like obstruction of justice to me. And violation of an individual’s right to take a photograph in a public place. If Tillotson wishes to have the photograph excluded on procedural or technical grounds, she can ask for a hearing in the usual way, and try and get the evidence thrown out.

    That is how these things work. You let the cops do their job and then try and argue to suppress the evidence later in court.

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