Tuesday, September 8, 2015

Public defender sues for arrest while trying to represent her clients -- UPDATED

Back in January several outlets reported on an incident in San Francisco involving an arrest of a public defender which was caught on video.  Today, the ABAJournal.com is reporting that she has filed a complaint against the city and the police department.

Given that the incident was caught on video, the facts are easy to observe.  The plaintiff's clients were in court that day for a hearing related to a misdemeanor robbery charge.  While hanging out with their lawyer (the plaintiff) in the hallway, a police officer approached them to talk about another case and said he needed to take photos of the clients.  The lawyer objected and the police officer then told her she would be arrested "for resisting arrest."  That is a curious charge, since the police had not said they were going to arrest anyone.  In other words, the lawyer was not interfering with the police's attempt to arrest her clients.  She was also not resisting her own arrest since the police was not trying to arrest her.  Bottom line, the cop essentially said "let me do what I want to do here or you will be arrested."  And that is exactly what happened.

From what I can see, there is basis for a claim of false imprisonment here, but it is not clear what is the level of damages.  The claim, however, is apparently not for common law false imprisonment but for violation of civil rights.

See below for a a video of the incident.   

UPDATE:  The complaint in this case eventually was dismissed by a federal district judge and that decision was affirmed on appeal.  Go here for the story.  Reading this story, however, raises several questions for me, the most important of which is why was the case argued the way it was?

It appears that the main argument for the plaintiff was that she was arrested (in violation of her constitutional rights) because she exercised her freedom of speech.  I suspect that was the argument so they could make a federal case out of what would otherwise have been a simple state torts claim.

This turned out to be a mistake.  From the limited evidence I can see (by which I am admitting that I could be totally wrong if I had all the evidence available), this was, at least on paper, an easy false arrest claim.  

The police officer arrested her for "resisting arrest" which is absurd to being with.  How can you arrest someone for resisting arrest if she was not being arrested?  You can get arrested for something, and then get charged with resisting arrest if there is evidence that you did resist arrest in the process of getting arrested for the conduct you are getting arrested to start.  

So the charge used to justify the arrest is nonsense, and the video disproves the allegation.  Then, there's the fact that the lawyer was released and not charged with anything.  The police simply arrested her so they could get her out of the way and talk to her clients without her being present.

In dismissing the complaint, the judge concluded that there was enough probable cause to conclude that the lawyer was "obstructing justice" or interfering with a valid police investigation.  

I don't think so but even if that is the case, that conclusion does not support the court's decision because that is NOT what the lawyer was arrested for.  If she had been arrested for and charged with obstruction of justice, that argument may have been a valid way to retroactively justify the arrest; but those were not the facts.

Even if there was probable case to arrest for obstruction of justice, the arrest was for something else.  Therefore, the arrest was not valid.  

Here is the video of the original arrest:

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