Come and see the violence inherent in the system.
On January 27th, Deputy Public Defender Jami Tillotson was arrested for refusing to allow her client to be questioned by police without an attorney present. I have much respect for Attorney Tillotson for calmly and implacably inviting the inspector to carry out his threat of unlawful arrest.
You can watch the video here. “I’m going to arrest you for resisting arrest,” is a pretty strong tip-off that there is no valid arrest being made — especially where he had just said the other man would be free to go after having his picture taken. Resisting what arrest?
My reference to “the violence inherent in the system” isn’t just a Monty Python reference. It’s very common for police officers to make “contempt of cop” arrests, where the only offense is being in the way of the police doing things their way. In many of these cases, the arresting officer knows that the arrest will not stand up in court, but is simply using force to punish the person for non-compliance.
The identifying features of a “contempt of cop” arrest are some apparently lawful activity that is inconvenient to the officer, and a vague misdemeanor charge like “Disorderly conduct,” “resisting arrest,” or “criminal mischief.” In Massachusetts we sometimes see “interfering with a police officer in violation of the common law,” which is literally not a crime that exists.
There’s also a common thread in the culture of many police departments that resent public defenders as being on the side of crime and against peace and good order.
In this worldview, private attorneys are seen as understandable because they are in a lawful occupation making an honest buck — even when hired to advise suspects in pending investigations, in ways that are inconvenient to the police.
Public defenders get the extra contempt because it’s a financially irrational occupation, and the idea that public defenders would sacrifice pay to defend criminals is beyond the officer’s capacity or willingness to understand.
The intellectually lazy, stand-in explanation is that the public defender is an evil person who wants to see the collapse of law and order and the reign of anarchy. They tolerate advocacy in the courtroom because it is a behavior that is defined and specifically endorsed by the social order, and the officers can tell themselves a story about how the public defenders are “just doing their jobs,” however misguided that job may be. Many police officers assume that defense lawyers find courtroom advocacy distasteful (we don’t).
However, when a public defender steps outside the courtroom and advises a suspect on how to protect their rights, the contempt erupts. In the officer’s view, fieldwork is the private domain of cops (even if it happens in a courthouse), and lawyers are not welcome there and must be punished for straying outside of their box.
When I was a full-time public defender, I once took a call from a former client who was under investigation for a new crime. I advised him not to talk (as I always do), and told him, as I always do, to give my card to the investigating detective and tell him that I was the asshole who said not to talk. I do this so that my clients can deflect onto me the social pressure of going against the police authority.
Within an hour, I took a call from the detective demanding to know what right I had to advise a suspect who had not been arrested. The detective informed me that, after speaking to his chief, they were prepared to file a bar complaint against me for “using your authority as a public defender to represent him.” (I told him that I would welcome such a complaint, and he and the chief should feel free to file it. That was the last I heard of it.)
Massachusetts does make it a crime to resist even an unlawful arrest — whether the arrest of one’s self or another. However, even by that standard, the arrest in San Francisco is problematic, since the inspector had said the client would be free to leave after being photographed. It appears that there was no arrest to resist.
The greater point is that contempt of cop arrests are questionably legal at best. They are an abuse of authority under color of the law, not an idiosyncratic lawful act.
How does the arrest take place? Easy. The officer says, “you’re under arrest,” and then puts the cuffs on or orders a junior officer to do so, and the lawyer is taken away.
The fact that there is absolutely no legal justification for it is why the attorney was only detained for an hour, and why she will almost certainly win her lawsuit against the Inspector and the other officers who were involved.
My point is that “resisting arrest” is a meaningless mouth noise that the Inspector made while ordering her arrest. He might as well have said “you’re under arrest for flibbitygibbet.” Trying to find a narrative in which the Inspector’s words connect with his actions in a way that you can recognize as having something to do with the actual content of the law is an exercise in pursuit of madness. If you’re hoping to find a colorable justification for the arrest, I will save you the trouble: There isn’t one.
It is absolutely illegal for a police officer to make an arrest without probable cause, but the law is not self-executing. Who will enforce the law? Police are notoriously reluctant to arrest or even internally discipline their own. Many departments have a cultural narrative that says the people want the police to protect us at whatever cost, and don’t want to know the details about what they do for us. It is a “you can’t handle the truth” mentality.
People who are harmed by the illegal acts of police officers can sue, but there are some systematic obstacles to getting relief that way too.
We currently have two primary tools for controlling police misbehavior: lawsuits and criminal prosecutions. There is also internal affairs, but in many departments that is a toothless entity, or more interested in petty irregularities than serious misconduct.
Lawsuits are meant in part to be a deterrent: an officer who is worried about getting sued will be more careful, the theory goes, and a department that is worried about being on the hook for lawsuits against officers will better train and supervise its officers.
There are a couple of problems here. First, big departments with long histories of misconduct (I’m looking at you, NYPD), are able to buy insurance to cover these costs rather than addressing the root problem.
Second, the Supreme Court fabricated a defense to these lawsuits for officers to use: if it was at all ambiguous whether the conduct was illegal, the officer wins even if the court later finds that the conduct was in fact illegal. This defense is not in the statute Congress created to let people sue police officers for misconduct–the Supreme Court made it up.
Criminal prosecutions have several related problems. First, most US jurisdictions do not include a credible mechanism for private citizens to bring criminal charges without the active participation of police and/or district attorneys. Police and district attorneys are really reluctant to ever prosecute police officers for unlawful acts in the line of duty, even where the liability is really pretty clear.
Second, judges and juries are often reluctant to convict police officers. Police, prosecutors, judges, and juries all worry that convictions will deter people from being willing to serve as police officers out of fear that their mistakes will be treated as crimes and they will face draconian consequences.
In part, this is a problem of society’s rational unwillingness to hang individual officers out to dry for structural problems in which they are mere participants. And in part it is a problem of society’s unwillingness to call out real cases of individual misconduct when they occur, out of real or feigned fear that hindsight bias will conflate the two, or make a mistake look like a crime.
That, in turn, is a benefit that we as a society offer to white police officers more than to non-white police officers, to all officers more than to non-police officers, and to white or economically privileged non-officers more than to poor, black, non-officers, who get almost none of it.
Ultimately, we have two fundamental problems: the existence of legal structures that will adequately deter or remediate police misconduct, and the willingness of human actors to enforce those structures in practice.
(Originally written as a series of comments on 1/28/2015.)