Article from: www.thenewspaper.com/news/68/6843.asp

11/27/2019

Ninth Circuit Tosses Lawsuit Over Motorcyclist Harassment
Federal appeals court says lawyer cannot advise client who is pulled over for a traffic violation.

A lawyer arrested for attempting to advise his client of his rights during a traffic stop lost his false arrest case last week before the Ninth Circuit US Court of Appeals. A sharply divided three-judge panel concluded that Stephen P. Stubbs, an attorney, arguably "obstructed" a police officer at the side of the road on November 13, 2013, after he approached Kevin Desmairas, a fellow motorcyclist and client, while he was pulled over in Las Vegas, Nevada.

Desmairas is a member of Bikers for Christ, a group of Christian ministers that complains of frequent police department harassment. Desmairas had been stopped for allegedly failing to signal.

"He has a Fifth Amendment right to counsel right now because he's being detained and in custody," Stubbs told Sergeant Williams at the scene.

The sergeant gave Stubbs permission to help his client and to approach the arresting officer, Del Rosario, while the motorcyclist was being questioned.

"Just don't interrupt his duties," Sergeant William advised Stubbs. "You just do what you do."

A few minutes later, Sergeant (later Lieutenant) Yesenia Yatomi arrived on the scene. She was upset to see Stubbs advising his client. She ordered him to leave so she could question him alone, warning him three times that he would be arrested if he did not leave. Stubbs refused to go, citing his client's constitutional right to counsel.

Stubbs was arrested and charged for obstruction, but as soon as a Las Vegas judge watched video of the encounter and noted discrepancies in the police report, Stubbs was acquitted. Stubbs subsequently filed a lawsuit for false arrest, but the Ninth Circuit majority believed the police in this instance did nothing wrong.

"Stubbs points to no case, and we are aware of none, holding that the right to counsel authorizes an attorney to: (1) stand shoulder-to-shoulder with his client; (2) during a traffic stop; (3) while armed with a firearm; and (4) refuse repeated, reasonable law enforcement requests to step aside," the appellate court majority found. "We have serious doubts that the right to counsel encompasses such conduct."

The majority rejected all of the arguments that the conduct of Stubbs did not meet the statutory definition of obstruction.

"Whatever Stubbs's motive might have been, the facts and circumstances established by the record were sufficient to warrant a prudent officer's belief that he was willfully -- that is, intentionally -- hindering, delaying, or obstructing Lieutenant Yatomi in the lawful discharge of her duties by refusing to comply with her orders to step away during the pendency of the traffic stop," the majority concluded.

Judge A. Wallace Tashima disagreed with his colleagues.

"Until Yatomi arrived he was 'being professional' and cooperating amicably with Sergeant Williams and Officer Del Rosario, had explicitly agreed to let Officer Del Rosario do his job, and exhibited no intent to obstruct or hinder the officers in carrying out the traffic stop proceedings, nor, according to the officers, had Stubbs in fact done anything to obstruct the traffic stop investigation," Judge Tashima wrote in his dissent.

Stubbs has vowed to appeal the case to the full Ninth Circuit.

"This is not over," he said.

A copy of the ruling is available in a 250k PDF file at the source link below.

Source: Stubbs v. Las Vegas Metropolitan Police (US Court of Appeals, Ninth Circuit, 11/20/2019)

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