State v. E.J.J.

IN THE SUPREME COURT OF THE STATE OF WASHINGTON'''
STATE OF WASHINGTON, )
) No. 88694-6
Respondent, )
)
v. ) En Banc
)
E.J.J., )
)
Petitioner. )
) Filed JUN 2 5 2015
JOHNSON, J.-This case challenges, on grounds under the First
Amendment to the United States Constitution, a juvenile court "conviction" for
obstructing a law enforcement officer under RCW 9A.76.020(1). The Court of
Appeals affirmed the trial court. The basis for the prosecution centers on E.J.J.
calling the officers abusive names, yelling, and using profanity toward the officers
while they were engaged in a criminal investigation. We find insufficient evidence
to support the conviction and that E.J .J.' s words directed at the officers are
constitutionally protected. We reverse the conviction and dismiss. 1
1
Because we resolve this case on First Amendment grounds, we do not address E.J.J.'s
privacy claim.
State v. E.JJ, No. 88694-6
FACTS AND PROCEDURAL POSTURE
This case began as a call for police assistance to E.J.J. 's house to help with
his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police
responded and began their intervention by escorting R.J. out of the house 10 to 15
feet away from the front door, where the officers attempted to calm her down.
E.J.J. grew concerned when he saw an officer reach for what he perceived to be a
nightstick..2 E.J.J. exited the house and stood on the porch, telling the officers that
R.J. was his sister and that they should not use the nightstick. The officers advised
him that they were in the middle of their investigation and instructed him multiple
times to leave the scene and return to the house. Initially, E.J.J. did not comply,
questioning why he had to return to the house. When, eventually, he did return to
his home, he stood in the open doorway and continued his verbal interaction with
the officers. The house had double doors: a wrought iron screen door, through
which someone could see out and communicate through, and a second, solid wood
door. The officers directed E.J.J. multiple times to close the solid wood door and to
withdraw further into the home, but E.J.J. refused, stating that he wanted to
supervise the scene from the doorway ( 10 to 15 feet away from the other officers
2
The record is unclear as to whether the officer actually pulled the nightstick. But it is of
no import to this case whether the nightstick was actually pulled. Instead, we are dealing with
E.J.J.' s reaction to what he perceived at the time as a nightstick being pulled on his sister.
2
State v. E.JJ, No. 88694-6
and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind
the closed wrought iron door. Multiple times, an officer reached into the home to
close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was
irate, yelling profanities and calling the officers abusive names. 3 An officer warned
E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the
solid door, an officer put him under arrest for obstruction of a law enforcement
officer. The entire interaction lasted approximately 10 to 15 minutes.
STANDARD OF REVIEW
The free speech provision of the First Amendment4 stands as a guardian
protecting citizens against criminal prosecution when exercising their
constitutional right to speak, to witness and engage in the political process, and to
criticize certain governmental activities. Historically, First Amendment values
have occupied a crucial place in shaping our democracy. Cases have consistently
and strongly held that people cannot be held liable when exercising their right to
speak. While E.J.J. 's words may have been disrespectful, discourteous, and
annoying, they are nonetheless constitutionally protected.
3
According to the officers, E.J.J. resorted to the use of profanity towards them. E.J.J.
testified that the officers were also yelling profanities and calling him names.
4
"Congress shall make no law ... abridging the freedom of speech, or of the press."
3
State v. E.J.J., No. 88694-6
E.J.J. challenges the obstruction statute as unconstitutional as applied to his
behavior. We review such constitutional challenges de novo. State v. Abrams, 163
Wn.2d 277, 282, 178 P.3d 1021 (2008). In the context of the First Amendment,
this requires a review of the record to determine that the conviction could not have
been based only on constitutionally protected speech. 5 The obstruction statute
provides, "A person is guilty of obstructing a law enforcement officer ifthe person
willfully hinders, delays, or obstructs any law enforcement officer in the discharge
of his or her official powers or duties." RCW 9A.76.020(1). To save the
obstruction statute from being unconstitutionally overbroad in a First Amendment
setting, we have construed the statute narrowly. Our cases have consistently
required conduct in order to establish obstruction of an officer. State v. Williams,
171Wn.2d474, 485, 251 P.3d 877 (2011). In other words, a conviction for
obstruction may not be based solely on an individual's speech because the speech
itself is constitutionally protected. This review is also consistent with the approach
established by the United States Supreme Court. See Street v. New York, 394 U.S.
576, 578, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969).
5
Althoughmost First Amendment cases involve challenges to statutes or ordinances, our
review of the sufficiency of the evidence in this case is similar to the standard of review in any
other First Amendment case.
4
State v. E.JJ, No. 88694-6
Washington courts have long limited the application of obstruction statutes,
lest those statutes infringe on constitutionally protected activity. In Stone, the Court
of Appeals invalidated portions of a city obstruction ordinance that criminalized
the defendant's refusal to identify himself to police officers. City of Mountlake
Terrace v. Stone, 6 Wn. App. 161, 492 P.2d 226 (1971). In Grant, this court
invalidated portions of a similar state obstruction statute but held that the
remainder of the obstruction statute was constitutionally adequate because it
focused on conduct rather than speech. State v. Grant, 89 Wn.2d 678, 575 P.2d 210(1978). Four years after Grant, we reviewed the successor obstruction statute,
former RCW 9A.76.020 (1975). 6 State v. White, 97 Wn.2d 92, 640 P.2d 1061(1982). Although we held that subsections (1) and (2) were constitutionally
overbroad, we left intact subsection (3 ), which made it a misdemeanor to
'"knowingly hinder, delay, or obstruct"' a public servant. White, 97 Wn.2d at 96(quoting former RCW 9A.76.020). Following White, in cases where defendants
were charged under subsection (3) by giving false names or refusing to give any
6
"Obstructing a public servant. Every person who, (1) without lawful excuse shall
refuse or knowingly fail to make or furnish any statement, report, or information lawfully
required of him by a public servant, or (2) in any such statement or report shall make any
knowingly untrue statement to a public servant, or (3) shall knowingly hinder, delay, or obstruct
any public servant in the discharge of his official powers or duties; shall be guilty of a
misdemeanor;'' .
5
State v. E.J.J, No. 88694-6
information to police-paradigmatic speech activity-our Court of Appeals
correctly reasoned that subsection (3) requires conduct, not speech alone. See State
v. Hoffman, 35 Wn. App. 13, 16-17, 664 P.2d 1259 (1983). Although our courts
resolved these cases on the bases of due process and vagueness, the fundamental
principle is the same. In order to satisfy our state and federal constitutions,
obstruction statutes must have articulable, clear standards that do not impair
important constitutional activities, such as speech.
After the legislature adopted the current obstruction statute, our courts
continued to require conduct in order to survive a constitutional challenge. The
current obstruction statute contains only the "willfully hinders, delays, or
obstructs" subsection of the former statute. Former RCW 9A.76.020(1). Reviewing
this revised language, the Court of Appeals in Williamson reversed the obstruction
conviction of the defendant who falsely told police his name was "'Christopher
Columbus."' State v. Williamson, 84 Wn. App. 37, 45, 924 P.2d 960 (1996). The
court reasoned that the defendant's response was speech, not conduct. Williamson,
84 Wn. App. at 43-45.
In Williams, we thoroughly discussed the history of cases analyzing the
concerns our courts have long held in relation to attempts to criminalize incidents
where speech is involved. We emphasized the concern that police could use this
6
State v. E.JJ, No. 88694-6
statute to detain and arrest individuals solely for their speech. In Williams, we
vacated the defendant's conviction for obstruction when he gave a false name to
police during a traffic stop, holding that "in order to avoid constitutional
infirmities" we require some conduct to support a conviction. Williams, 171 Wn.2d
at 478. As our history makes clear, conduct is prerequisite of an obstruction
charge.
Given the important First Amendment rights at stake, we are required to
engage in a careful review of the record to ensure that E.J.J.'s conviction could not
have been based on speech alone. 7 This analysis is consistent with the United
States Supreme Court's holding in Street. In Street, the defendant burned an
American flag in the street, telling police, "'We don't need no damn flag."' Street,
394 U.S. at 579. The defendant was convicted under a New York statute that made
it a misdemeanor to '"publicly ... mutilate, deface, defile ... or cast contempt
upon either by words or act"' any flag of the United States. Street, 394 U.S. at 578
7
A conviction may be based on an individual's conduct even if he or she engaged in
protected speech. Freedom of speech does not immunize speech used as an integral part of
conduct in violation of a valid criminal statute. See Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949). Furthermore, not all speech is protected from
punishment under the obstruction statute. This case would certainly be different ifE.J.J.'s speech
fell within one of the unprotected speech categories. See State v. Kilburn, 151Wn.2d36, 42-43,
84 P.3d 1215 (2004) (listing libel, fighting words, incitement, obscenity, and child pornography).
The State, however, does not claim that E.J.J.'s speech fit into any of these categories.
7
State v. E.JJ, No. 88694-6
(quoting N.Y. PENAL LAW§ 1425). After holding that a person may not
constitutionally be convicted for speaking contemptuous words about the flag, the
United States Supreme Court heldthat it was compelled to reverse the conviction
because given the record, the way Street was charged, and the general verdict
entered, he could have been convicted for his speech alone. Street, 394 U.S. at 590;
see also Williams v. North Carolina, 317 U.S. 287, 292, 63 S. Ct. 207, 87 L. Ed.
279 (1942) ("T'o say that a general verdict of guilty should be upheld though we
cannot know that it did not rest on the invalid constitutional ground ... would be
to countenan.ce a procedure which would cause a serious impairment of
constitutional rights."). Washington cases also follow this analysis. See
Williamson, 84 Wn. App. at 44-45 (presuming prejudice when defendant was.
convicted of obstruction solely because he gave a false name). Thus, this case turns
on whether the record suggests that E.J.J. was convicted of obstruction based
solely on his words. 8
------·-----
8
. The· chief justice wrongly criticizes our review of the record, claiming that we have
disregarded the trial court's findings of fact. Concurrence (Madsen, C.J.) at 1. However, it is the
chief justice that disregards the constitutional standard of review that requires scrutiny of not
only the trial court's findings but of the entire record to ensure that the conviction could not have
been based on protected speech alone. See Street, 394 U.S. at 590 (reversing conviction because
review of the record could not establish that the conviction was based on conduct and not solely
on speech). The standard of review announced in Street is also in accord with the standard we
announced in Williams. Williams, 171 Wn.2d at 485.
8
State v. E.J.J, No. 88694-6
The State argues that in addition to his abusive speech directed at the
officers, E.J.J. engaged in conduct by approaching the officers while they were
trying to calm R.J. down and by refusing to obey the officers' requests to return to
the house and close both the wrought iron and solid wood doors. The Court of
Appeals agreed, holding that the record supported the trial court's determination
that E.J .J. was guilty of obstruction. We address each fact relied on by the Court of
Appeals in turn.
First, the Court of Appeals determined that E.J .J.' s physical approach toward
the officers was sufficient evidence of conduct to support his conviction. We
disagree. The record indicates that E.J.J. did not physically interfere with or touch
either the police or his sister. Furthermore, the trial court's findings of fact provide
that E.J.J. did not make any threatening movements toward the officers at any time.
Clerk's Papers at 14. This conduct is insufficient to support his conviction for
obstruction.
The second "fact" relied on by the Court of Appeals was that E.J .J. 's
presence at the scene escalated the situation. But E.J.J. 's mere presence at the
scene cannot constitute conduct. E.J.J. had every right to stand on his own
property, provided he did not physically interfere with police. Moreover, other than
this generalized claim of interference, nothing in the record establishes any
9
State v. E.J.J., No. 88694-6
connection between E.J.J.' s speech or presence and anything that specifically
resulted from it.
Third, the Court of Appeals held that E.J.J.'s refusal to obey the officers'
repeated requests to leave the scene was sufficient evidence of conduct. More
precisely, it appears that the Court of Appeals agreed with the trial court that E.J.J.
obstructed police when he became irate, hurled abuses on the officers, and refused
to close the solid wood door to his home. But this exchange is so intertwined with
E.J.J. 's protected speech that we find insufficient evidence of E.J.J. 's conduct to
support his conviction on this basis. The trial judge said as much when
commenting, "If [E.J.J.] had simply stood there ... and observed the situation and
if the officers had said close the door and he had disobeyed that order, [they] might
not be here today and there could very well not be sufficient evidence of
obstruction." Report of Proceedings (RP) at 99. This recognition by the trial court
is telling because it implies that the trial judge based the conviction on E.J .J.' s
refusal to close the door and his abusive statements toward police, and not on
E.J.J. 's approach toward the police officers. Most importantly, because we cannot
be confident that his words did not support the trial court's conclusion that the
front door exchange constituted obstruction (quite the opposite, E.J.J. 's speech
10
State v. E.JJ, No. 88694-6
appears to be dispositive ), we find insufficient evidence of conduct from the
exchange between E.J.J. and police at the front door.
Finally, the Court of Appeals found sufficient evidence of obstruction from
the fact that an officer was eventually required to escort E.J.J. back to the home,
thus delaying officers. That E.J.J.'s behavior may have caused a minor delay is of
no import. Although the officer's request that E.J.J. return to his home and close
both doors might have been an attempt for a more convenient resolution of the
situation, "[ s]tates cannot consistently [sic] with our Constitution abridge those
freedoms to obviate sl~ght inconveniences or annoyances." Giboney, 336 U.S. at
501-02. In the First Amendment context, we must be vigilant to distinguish
between obstruction and inconvenience. As the Fourth Circuit Court of Appeals
remarked, "[I]nconvenience cannot, taken alone, justify an arrest [for
obstruction]." Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003) (affirming trial
court's ruling that plaintiff properly alleged insufficient probable cause to support
his arrest for obstruction when he refused to obey orders to cease and depart the
scene). And as the trial court in Kittoe noted, "When protected speech is added to
the equation in punishing an individual for refusing to comply with an order to
disperse," and in a situation that is "littered with potential for abuse of First
Amendment rights," the State's ability to punish under an obstruction statute could
11
State v. E.JJ, No. 88694-6
give the State "a mask for unconstitutional conduct." Wilson v. Kittoe, 229 F.
Supp. 2d 520, 531, 532 (2002), aff'd, 337 F.3d 392.
Likewise, obstruction statutes may not be used to limit citizens' right to
express verbal criticism, even abusive criticism, at police officers. The United
States Supreme Court recognized this protection in City ofHouston v. Hill, 482
U.S. 451, 454, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). In Hill, the defendant
watched as police approached a friend. Believing that the police officers were
going to punch his friend, Hill began shouting at police, telling them to "'pick on
somebody your own size."' Hill, 482 U.S. at 454. Hill was arrested under a
municipal obstruction ordinance. In declaring that ordinance invalid under the First
Amendment, the Court sagely remarked that "[t]he freedom of individuals verbally
to oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police state."
}fill, 482 U.S. at 462-63. The similarity between the facts of Hill and the present
case are striking. 9 Furthermore, the record demonstrates that the officers in this
9
The chief justice criticizes our reliance on Hill, arguing that Cox v. Louisiana, 379 U.S.
559, 563, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965), is more analogous. Concurrence (Madsen, C.J.)
at 12-13. We disagree. Cox involved a constitutional challenge to a statute that prohibited
picketing near courthouses. Dispositive to the holding was that there is a substantial public
interest in an impartial justice system free froin intimidation and that the statute was precisely
and narrowly drawn to specific types of behavior in a very limited area (in or near courthouses).
Cox, 379 U.S. at 562. The obstruction statute at issue in this case, by contrast, applies throughout
12
State v. E.JJ, No. 88694-6
case ordered E.J.J. to close the solid wood door in order to silence his harsh
10
criticism and observation of police activity. In conclusion, we find that there is
not sufficient evidence to support E.J.J. 's conviction.
The chief justice argues that we have ignored the unchallenged findings of
fact and that those findings fully support the conclusion that E.J.J. was convicted
on the basis of his conduct. Concurrence (Madsen, C .J.) at 1. The chief justice's
concurrence is problematic and fails to apply the proper constitutional standard of
review; Simply put, we cannot be certain that E.J.J.'s conviction was not based on
his speech alone. The trial court's unchallenged findings of fact certainly do not
support a contrary result.
CONCLUSION
Where individuals exercise their constitutional rights to criticize how the police
are handling a situation, they cannot be concerned about risking a criminal conviction
for obstruction. Such a conviction is not permitted under the First Amendment.
After a comprehensive review of the record and the trial court's findings, the
the state and does not specify certain types of behavior beside the rather broad language
"hinders, delays, or obstructs."
16 At trial, the following exchange occurred between defense counsel and an officer who
was testifying:
"Q .... And so you wanted him to shut the inside door so the more solid door that you
could not see out of, so that he would not be able to see what was going on, correct?
"A. Yes, correct, yes." RP at 52.
13
State v. E.JJ, No. 88694-6
decision of the trial court is reversed and charges are dismissed.
WE CONCUR:
14
State v. E.JJ
No. 88694-6
MADSEN, C.J. (concurring)-! concur with the majority's reversal ofE.J.J.'s
conviction, but on different grounds. I cannot sign the majority because I disagree with
the majority's description of the facts as found by the judge, its characterization of the
basis for the trial court's ruling, and the majority's legal analysis in light of relevant,
unchallenged findings of fact. Given the testimony of the witnesses and the inferences in
favor of the state on sufficiency review, there is ample evidence ofE.J.J.'s obstructive
conduct to affirm his conviction for obstructing a law enforcement officer under RCW
9A.76.020(1).
Because this case presents a well-settled point of law regarding sufficiency of the
evidence to sustain a conviction, the only reason for this court's review is because it has
been called to the court's attention that the crime of obstruction is used disproportionately
to arrest people of color. Thus, despite the fact that sufficient evidence supports the
conviction under the current law, I believe this court must take this opportunity to add a
common law requirement to the obstructing statute to ensure its constitutional application
as follows: where the officer's conduct substantially contributed to the escalation of the
circumstances that resulted in the arrest for obstruction, the state has failed to meet its
No. 88694-6
Madsen, C.J., concurring
burden to show that the defendant willfully hindered, delayed, or obstructed a law
enforcement officer in the discharge of his or her official powers or duties. Under this
common law requirement the State would be required to prove that the defendant's
obstructing conduct was not substantially produced by the officer's escalating conduct. 1
This additional requirement is necessary because our system of justice cannot condone
disparate treatment of the people we serve, based on race, through the use of obstruction
statutes. Applying this requirement here, E.J.J.'s conviction must be reversed.
Discussion
The Broader Context of This Case Requires a New Rule
The concerns raised by E.J.J. and amicus American Civil Liberties Union of
Washington about the potential for abuse of the obstruction statute at issue here,
particularly in communities where there exists tension with law enforcement and
questions of excessive force, are real. According to a report from the auditor of the
Office of Professional Accountability (OPA), 51 percent of the obstruction charges filed
in Seattle during a two-year period were filed against African Americans, even though
African Americans comprise only about 8 percent of Seattle's population. 2 When called
1
As a practical matter, the State could meet its burden by proving police attempted to de-
escalate the situation through approved de-escalation techniques.
2
City of Seattle Office of Pro fl Accountability, Auditor's Report on Obstruction Arrests:
January 2006-July 2008, at 7 (2008), available at
http://www.seattle.gov/Documents/Departments/OPA/Auditor/AuditorObstrnction.pdf; see also
City of Seattle Office of Intergovernmental Relations, The Greater Seattle Data Sheet,
Demographics, Population by Race in 2010, available at
http://www.seattle.gov/oir/datasheet/demographics.htm (noting Seattle African American
population as 8.4 percent).
2
No. 88694-6
Madsen, C.J., concurring
to the attention of the court, we must not condone practices that visit severe consequences
on one particular segment of the community and we must consider the conduct of police
in charges of obstruction when obstruction laws are used disproportionately in contacts
with African Americans.
Accordingly, in my view, in the context of this case we should take judicial notice
of the recent settlement of the United States Department of Justice (DOJ) claims against
the city of Seattle concerning the Seattle Police Department (SPD) practices when the
events underlying this case occurred. 3 In a complaint filed July 27, 2012 (Complaint),
the DOJ determined that "SPD engages in patterns or practices of using unlawful force
that systematically deny the people of Seattle their constitutional rights." Complaint at
2. 4 Of significance here, the DOJ's complaint alleged that "SPD officers escalat[e]
situations and us[ e] excessive force when arresting individuals for minor offenses,
particularly during encounters with persons with mental illnesses and those under the
influence of alcohol or drugs." Complaint at 3. "SPD's routine failure to report and
investigate use of force incidents, to hold officers accountable for improper uses of force,
or to emphasize the importance of de-escalation facilitates a supervisory culture where
3
See United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) ("Fed.R.Evid. 20l(b)(2)
permits judicial notice of a fact that is 'not subject to reasonable dispute in that it is ... (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.' In particular, a court may take judicial notice of its own records in
other cases, as well as the records of an inferior court in other cases." (alteration in original)); see
also ER 201 (b)(2).
4
The noted Complaint, which was filed in the United States District Court for the
Western District of Washington at Seattle, in United States v. City of Seattle, Cause No. 12-CV-
1282, is available on the DOJ's website at
http://www.justice.gov/iso/opa/resources/877201272719531542159.pdf.
3
No. 88694-6
Madsen, C.J., concurring
excessive force is tolerated." Id. 5 As a part of the "Settlement Agreement" reached
between the city of Seattle and DOJ, the department committed to provide training for
officers and supervisors on the appropriate use of de-escalation techniques. Settlement
Agreement at 35, 36. 6 As discussed below, no such techniques were employed here.
Based on the alarming statistics regarding the SPD' s use of minor charges, such as
obstruction, disproportionately when interacting with African American, Latino, Asian,
and mentally ill members of our community, and recognizing the SPD's agreement to
reform its practices, we should not look only to the conduct of the defendant, but we
should also consider the conduct of the police officers in their interactions with members
of the public to ensure that police conduct does not deprive persons of rights, privileges,
or immunities secured or protected by the Constitution or laws of the United States.
As discussed below, it is apparent that in this case the arresting officer
unnecessarily escalated the situation when E.J.J. refused to close the front door. At that
point it appears that E.J.J. and the officer were involved in a contest of wills, and the
officer won because he had the power of arrest.
In line with the Settlement Agreement reached between the city of Seattle and the
DOJ, officers co11ld have employed de-escalation strategies when responding to E.J.J.'s
5
The DOJ investigation addressed SPD conduct over "a recent two-year period" and is
thereby relevant to the time period and events in this case. Complaint at 3.
6
The Settlement Agreement is available on the DOJ's website at
http://www.justice.gov/iso/opa/resources/407201283 l 74056123976.pdf.
4
No. 88694-6
Madsen, C.J., concurring
concern for his sister's welfare. 7 Rather than de-escalating the situation, however, one
officer chose to push his authority beyond that necessary to secure the scene, resulting in
the arrest and conviction of an African American teenager, further eroding the confidence
of the community in the justice system. 8
7
The "Memorandum of Understanding" accompanying the Settlement Agreement
acknowledges "Community Engagement" goals, stating, "SPD needs strong community
relationships and sustainable dialogue with Seattle's diverse communities to ensure
constitutional and bias-free policing, to closely interact with the community to resolve
neighborhood problems, and to increase community confidence in the Department." DEP'T OF
JUSTICE, MEMORANDUM OF UNDERSTANDING BETWEEN THE U.S. AND THE CITY OF SEATTLE at 3
(July 27, 2012), available at
http://www.justice.gov/iso/opa/resources/592201283 l 74042815512.pdf. Such goals respond in
part to the problems identified in the DOJ's complaint, which included SPD's continuing failure
to implement "training that assists officers in de-escalating situations." Complaint at 12-13.
8
According to a 2012 report by the Washington State Minority and Justice Commission
titled Justice in Washington State Survey, '"African Americans and Whites are on two different
ends of the spectrnm, with the fonner exhibiting strong signs of cynicism about the ability of the·
justice system to provide fair, impartial, and respectful justice, and the latter displaying
substantially more confidence and trnst in the system."' WASH. STATE MINORITY & JUSTICE
COMM'N AND WASH. STATE CTR. FOR CT. RESEARCH, JUSTICE IN WASHINGTON STATE SURVEY:
2012 (REVISED AND UPDATED 2014) at 1, available at
http://www. courts. wa. govI content/publicUpload/N ews/Justice%20in%20W ashington %20Report.
pdf. Latinos were only '"somewhat less critical'" than African Americans. Id. The report also
noted the disproportional impact of police encounters. When asked about their personal
encounters with police officers and the courts, the study found substantial differences between
Whites and African Americans in tenns of the :frequency of negative encounters. Specifically,
Black respondents reported being treated both '"unfairly"' and "'disrespectfully"' far more often.
Id. In the most extreme case, while only 11 percent of Whites report disrespectful treatment
:from the police at least once, fully 62 percent of African Americans make note of such treatment.
Id. Latinos report more contentious contacts with police than Whites, though somewhat fewer
such contacts relative to African Americans, and approximately one-third of Asian Americans
surveyed reported disrespectful treatment by police. Id. "Personal negative encounters with the
police have a far ranging impact on how individuals ... assess the broader justice system ....
The more frequently individuals report being treated unfairly or disrespectfully by the police, the
less likely they are to agree that the 'justice system'. .. treats people fairly and equally' and/or
'the courts ... can usually be trnsted to give everyone a fair trial."' Id. at 2. Accordingly,
encounters with police play a critical role "in shaping citizens' views of the broader criminal
justice system." Id. Further,
5
No. 88694-6
Madsen, C.J., concurring
We have an obligation to promote confidence in the courts and our justice system.
While studies verify the prominent impact of negative police contacts on the citizenry's
general perceptions of fairness and bias in our justice system, 9 we must do more than
merely study the problem. In order to ensure that the obstruction statute is not abused as
a tool of biased policing, I would add a common law requirement to the statute's
provisions as described above. Adding this common law requirement to the obstruction
statute is an appropriate response addressing this case and the broader concern of police
conduct in this context. 10 It will preserve the proper utility of the obstruction statute
while guarding against the statute's misuse.
The impact of negative personal encounters with the police ... is greatly
magnified through "discussion networks," or the acquaintances with whom
citizens tend to discuss their experiences. African Americans are, other things
equal, far more likely to discuss their police encounters with other African
Americans, encouraging a tendency for them to base their evaluations of the
justice system not just on personal experiences, but on vicarious experiences with
acquaintances, as well. Even Blacks who have not had personal negative
encounters with law enforcement, therefore, have often spoken with someone who
has experienced such an interaction, potentially leading to more critical
assessments of the justice system even among those not personally affected by it.
Id. at 3.
9
See supra note 7. Moreover,
[A]ttitudes about the fairness of the justice system are likely to color citizens'
views of much of the rest of the political system .... [P]eople who believe the
justice system to be unfair tend to evaluate the entire political system as less
legitimate. The justice system is as close as many come to the government; thus,
low levels of confidence in the [criminal justice system] can clearly undermine
support for the broader system.
Jon Hurwitz & Mark Peffley, Explaining the Great Racial Divide: Perceptions of Fairness in
the US. Criminal Justice System, 67 J. PoL.762, 764 (Aug. 2005), available at
http://www.polisci.pitt.edu/sites/default/files/pubs/HurwitzPeffley.2005.RacialDivide.pdf.
° 1
Cf State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004) (acknowledging that
the judge-made affirmative defense of unwitting possession "ameliorates the harshness of [the]
strict liability crime" of possession of a controlled substance). Here, although the added
requirement is not an affirmative defense, it is similarly designed to ameliorate the inequity of
6
No. 88694-6
Madsen, C.J., concurring
Moreover, I would apply this new requirement in the present case, as well as
prospectively, just as the Supreme Court applied the new advisement requirements
announced in its Miranda decision. I I As in Miranda, the newly minted requirement here
would serve as a prophylactic against "overzealous police practices." Miranda, 384 U.S.
at 444. As Miranda acknowledged, improper police conduct "'lowers the esteem in
which the administration of justice is held by the public."' Id. at 448 (quoting IV NAT'L
COMM'N ON LAW OBSERVANCE & ENFORCEMENT, REPORT ON LAWLESSNESS IN LAW
ENFORCEMENT 5 (1930)). Like Miranda, the new requirement's purpose is to assure the
eradication of improper police practices. See id. at 447. This new requirement similarly
provides "concrete ... guidelines for law enforcement agencies and courts to follow,"
which will thereby "'contribute directly to a more effective, efficient and professional
level oflaw enforcement."' Id. at 442, 441 n.3 (quoting L.A. Times at 1(Oct.2, 1965)).
On this basis, I would concur in the majority's reversal of E.J.J.'s conviction. I
turn now to my disagreement with the majority's analysis, which, in my view, does not
credit the salient facts establishing E.J.J.'s conduct and ignores pertinent case law.
The Present Case Turns on E.J.J. 's Conduct
The obstruction statute under which E.J.J. was convicted provides:
biased policing by considering the conduct of police employing the obstruction statute. Police
are critical to a functioning society, and biased policing diminishes this critical role.
11
See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
(articulating advisement requirements that police must perform prior to commencing in-custody
interrogation of suspects).
7
No. 88694-6
Madsen, C.J., concurring
A person is guilty of obstructing a law enforcement officer if the person
willfully hinders, delays, or obstructs any law enforcement officer in the
discharge of his or her official powers or duties.
RCW 9A.76.020(1).
The charge against E.J.J. proceeded to a bench trial in juvenile court. The trial
court's findings of fact are either unchallenged or supported by substantial evidence and
are thus binding on appeal. On appeal, E.J.J. assigned error to only two of the trial
court's 27 findings of fact, finding of fact 19 and 21. See Appellant's Opening Br. at 2.
All other unchall'enged findings are verities on appeal. State v. B.JS., 140 Wn. App. 91,
97, 169 P.3d 34 (2007). Where challenged findings are supported by substantial
evidence, those findings also are binding on appeal. State v. O'Neill, 148 Wn.2d 564,
571, 62 P.3d 489 (2003); see also State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270(1993). 12 Those findings are summarized as follows.
12
Finding of fact 19 stated that the officers "had legitimate safety concerns to not leave
their backs exposed to an open door of a house that had not been swept for weapons, with an
individual in the immediate vicinity who had not been patted down for weapons." Clerk's
Papers (CP) at 15. Both testifying officers expressed their concerns for officer safety at the time
because E.J.J. was hostile and yelling at them, he approached them from behind interjecting
himself into the scene of their investigation, he had not been patted down for weapons, and when
he was placed back into the house by an officer he refused to close the front door. Report of
Proceedings (RP) at 19, 20, 30, 39-43, 54-56. Officer Sean Jenkins testified that it was unsafe
for the officers to have the front door open because as they dealt with E.J.J.'s sister in the front
yard they had their backs to the door, which left them vulnerable to attack.
Finding of fact 21 states that E.J.J. "could have observed the police, while complying
with their orders [to close the front door], from a front window inside of the house." CP at 16.
E.J.J. admitted during testimony that he could have observed the officers just as well from the
window as from the open door. RP at 78-79. Substantial evidence supports the challenged
findings.
8
No. 88694-6
Madsen, C.J., concurring
On the night of February 14, 2011, E.J.J.'s mother, Geraldine, called 911 for help
to get her daughter, R.J., to leave her King County home. R.J. was heavily intoxicated
and agitated. EJ.J. lives with his mother and was home when she called 911.
Officer Sean Jenkins and two other officers responded to the call and escorted R.J.
out of the home. As the officers talked with R.J. in the yard, E.J.J. stepped off the porch
and approached the officers and R.J. The officers had calmed R.J. down, but when E.J.J.
began speaking in a loud and excited voice, R.J. became agitated. "[E.J.J.] knew that his
presence was making it difficult for the officers to keep [R.J.] still and calm." Clerk's
Papers (CP) at 14 (Finding of Fact 9).
The officers asked E.J.J. at least five times to go back inside the house and shut
the door, warning E.J.J. that he was obstructing their investigation and could be arrested,
but E.J.J. refused the officers' requests. Officer Jenkins ultimately walked E.J.J. to the
front door and instructed him to go inside and close the front door. E.J.J. called the
officers several insulting names and was yelling and swearing as Officer Jenkins walked
him to the door. E.J.J. refused to close the front door because he wanted to supervise the
scene and make sure that R.J. was not harmed during her interaction with the officers.
Officer Jenkins asked E.J.J. to close the door several times, but E.J.J. refused despite
being repeatedly warned that he could be arrested for obstructing the officers. "The
officers' request[s] for [E.J.J.] to go inside and shut the door were not unreasonable
because his presence, yelling and refusal to comply with police escalated [R.J.]'s
behavior" and his presence in the doorway presented a safety concern for the officers.
9
No. 88694-6
Madsen, C.J., concurring
CP at 15 (Finding of Fact 19-20). Because E.J.J. continued to refuse to close the front
door, he was arrested for obstruction.
After hearing testimony as above described, the trial court opined and ruled as
follows: 13
So here we have really two stages in what developed. The first stage
had to do with [E.J.J.] going outside the house because he felt that his sister
was potentially being threatened with force, and so he wanted to, as he put
it, supervise the situation.
The evidence is quite clear that [E.J.J.] was told several times that
he needed to step away, and he finally did so, and if this case had ended at
that point perhaps there would be no obstruction charges, but the situation
continued and the officers finally arrested [E.J.J.] for obstruction after he
continually. opened the door after the officer told him he wanted the door
closed.
One of the issues that has been raised by the defense is that the
officer essentially had no right to ask [E.J.J.] to close the door. He was in
his house, he had a right to observe. [E.J.J.] himself testified that as a
citizen he has a right to observe law enforcement, and the court certainly
doesn't disagree with that.
If [E.J.J.] had simply stood there at the very beginning and observed
the situation and if the officers had said close the door and he had
disobeyed that order, we might not be here today and there could very well
not be sufficient evidence of obstruction. But the court has to view what
happened at the door in the context of what came before, and the court isn't
making a judgment about whether [E.J.J.] had a right to be upset, but the
fact of the matter is that the situation escalated very quickly. [E.J.J.] was
calling the police officers names and the court is willing to accept [E.J .J. 's]
testimony that they might have called him names as well, but the fact of the
matter is that [E.J .J. 's] presence outside escalated the situation, and the
court does accept the testimony of both officers that just by being there and
raising his voice that it made the situation worse for the officers who were
trying to calm down [R.J.].
And so the fact that [E.J.J.] refused to close the door made the
situation worse because it wasn't as if at that point he was simply standing
in his house observing, which he would have every right to do, but [E.J.J.]
13
I quote at length from the trial court's oral rnling because both the majority and Justice
Gonzalez's concurrence misconstrne the basis of the trial court's opinion.
10
No. 88694-6
Madsen, C.J., concurring
was engaged in a back-and-forth with the officers. The word "taunting"
came up. _I don't know whether that accurately describes what went on
here, but it's very clear to the court that by raising his voice and calling the
officers names, he was making his presence known to his sister, and the
testimony was that through his presence, it made it more difficult for the
officers to do their job.
So I am finding [E.J.J.] guilty beyond a reasonable doubt of
obstructing these law enforcement officers. And I want to make it clear to
[E.JJ] that I'm not.finding you guilty because you were disrespectful
toward the police officers. That's not an element of this offense. And I'm
not even finding you guilty because you disobeyed the officer. That in and
of itself may be a violation of another statute. The reason why I'm finding
you guilty is because through your acts you hindered or delayed or
obstructed the officers in what they were trying to do outside. And I
understand what may have been going on in your mind. In your mind, you
may well have thought that you were protecting your sister, but I think you
would probably agree with me, if you don't agree with me now, perhaps if
you think about it, you kind of lost your cool, and by losing your cool you
created a climate that was extremely adversarial and also, as I've said a
number of times now, made it much more difficult for the officers to do
what they came to do. And so that is the basis for the court's ruling.
Report of Proceedings (RP) at 98-101 (emphasis added).
We have considered the constitutionality of the obstruction statute, or its
predecessors, on several occasions. See State v. Grant, 89 Wn.2d 678, 575 P.2d 210(1978); State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982); State v. Williams, 171 Wn.2d
474, 251 P.3d 87 (2011). In Williams, we observed that "our jurisprudential history
[requires] conduct in addition to pure speech in order to establish obstruction of an
officer." 171 Wn.2d at 485. We explained that such an interpretation of the statute
applies a limiting construction necessary to save the statute's constitutionality. Id. at 486.
Our treatment of the obstruction statute is in line with federal First Amendment analysis.
11
No. 88694-6
Madsen, C.J., concurring
"[C]onduct mixed with speech may be regulated or prohibited." Cox v. Louisiana, 379
U.S. 559, 563, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965).
In Cox, the United States Supreme Court considered a statute that prohibited
persons from picketing or parading near a courthouse with the intent of interfering,
obstructing, or impeding the justice system. Id. at 560. Those challenging the statute
argued that regardless of the conduct at issue, the statute was unconstitutional because it
necessarily burdened speech by punishing picketers carrying signs or utilizing other
forms of expression. The court disagreed, holding that the conduct was "subject to
regulation even though intertwined with expression and association." Id. at 563. The
court made clear that the presence of speech "'cannot immunize ... unlawful conduct
from state control."' Id. at 564 (quoting Giboney v. Empire Storage & Ice. Co., 336 U.S.
490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949)).
The rule to be gleaned from these cases is twofold. First, pure speech alone
cannot be criminalized as obstructionist. See Williams, 171 Wn.2d at 485 (noting our
"concern that criminalizing pure speech would implicate freedom of speech."). Second,
conduct, whether carried out with protected speech or accomplished without expression
at all, can always form the basis for a conviction under RCW 9A.76.020(1). See id.(requiring "conduct in addition to pure speech in order to establish obstruction of an
officer").
12
No. 88694-6
Madsen, C.J., concurring
Instead of following Cox, 14 the majority relies on City of Houston v. Hill, 482 U.S.
451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) to support the notion that "obstruction
statutes may not be used to limit citizens' right to express verbal criticism, even abusive
criticism, at police officers." Majority at 12. I do not disagree with that statement, but
this case does not involve an obstruction arrest based on mere criticism of police.
Furthermore, Hill addressed a very different statute. The ordinance at issue there in fact
criminalized speech standing alone. See Hill, 482 U.S. at 461 (explaining that the
ordinance "prohibits verbal interruptions of police officers."). Under the ordinance in
Hill, a person could be convicted simply for speaking out. 15 Our obstruction statute is
different. We have consistently construed RCW 9A.76.020(1) to require conduct in
addition to pure speech. Further, the Court in Hill acknowledged that a properly tailored
statute may inhibit protected speech when it is intertwined with obstructionist conduct.
In construing RCW 9A.76.020(1), we have already engaged in the requisite narrow
tailoring that Hill required, making clear that a conviction for obstruction must rest on
conduct in addition to speech. See Williams, 171 Wn.2d at 486.
Here, the unchallenged findings and substantial evidence in the record support the
trial court's conclusion that E.J.J. 's conduct, not his speech, formed the bas'is for the
14 Similarly, Justice Gonzalez's concurrence does not discuss Cox.
15
The ordinance at issue in Hill made it "'unlawful for any person to . . . in any manner
oppose, molest, abuse or interrupt any policeman in the execution of his duty,' and thereby
prohibits verbal interruptions of police officers." Hill, 482 U.S. at 461 (emphasis added)
(alteration in original) (quoting Code of Ordinances, City of Houston, Texas, § 34-1 l(a) (1984)).
The Court opined that the ordinance "is not limited to fighting words nor even to obscene or
opprobrious language, but prohibits speech that 'in any manner ... interrupt[s]' an officer." Id.
at 462 (alterations in original). The ordinance in Hill also had no intent element, as RCW
9A.76.020(1) does.
13
No. 88694-6
Madsen, C.J., concurring
charge and conviction in this case. In accordance with Williams, the trial court explained
that E.J.J. was being convicted not for insulting the police officers, but for hindering them
in the performance of their duties. This conduct included interjecting himself into the
investigation scene, knowingly agitating R.J., repeatedly refusing to leave the scene until
he was escorted back to the house by an officer, and thereafter repeatedly failing to
comply with officers' directives despite repeated warnings that his behavior was
obstructing the officers' investigation and would result in his arrest.
Citing Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969),
the majority asserts that we must look past the trial court's findings and consider the
record as a whole. Here, police testimony, which the trial court expressly accepted,
established that, based on officer safety concerns, police instructed E.J.J. (1) to step away
from the investigation scene, which he refused to do until police escorted him back to the
house and (2) to close the front door, which he refused to do. RP at 42-43. This is
"conduct" by any measure.
Secondly, Street is a case concerning "flag desecration perpetrated in the course of
a political protest," 394 U.S. at 604-05 (Warren, C.J., dissenting), in violation of a New
York statute that prohibited both public mutilation of an American flag and publicly
casting contempt on the flag "'by words."' Id. at 589 (quoting N.Y. PENAL CODE§
1425). In Street, the Supreme Court held:
In the face of an information explicitly setting forth appellant's words as an
element of his alleged crime, and of appellant's subsequent conviction
under a statute making it an offense to speak words of that sort, we find this
record insufficient to eliminate the possibility either that appellant's words
14
No. 88694-6
Madsen, C.J., concurring
were the sole basis of his conviction or that appellant was convicted for
both his words and his deed.
Id. at 590 (emphasis added). The Supreme Court reversed defendant's conviction under
circumstances where (1) defendant was charged with and convicted of violating a statute
containing multiple prohibitions, including an unconstitutional prohibition against pure
political speech, (2) the trial court's decision did not specify the ground on which the
conviction rested, and (3) the basis of the judge's conviction decision could not otherwise
be ascertained from the record. See id. at 585-88. E.J.J.'s case, however, does not
involve a statute.that prohibits speech. Nor does the charging document indicate that
E.J .J. 's speech was a basis for his arrest. CP at 1. And here the trial court gave a clear
articulation of the basis of its decision finding E.J .J. guilty of obstruction. See RP at 100-
01. Indeed, the trial court's oral ruling took pains to set forth and analyze the evidence
presented at trial. The court's lengthy explanation, given for the benefit of the juvenile
defendant, should not be read out of context. The trial court here expressly and clearly
articulated the basis for its guilty verdict: E.J.J.'s "acts" that hindered the officers'
investigation and efforts to deal with E.J.J. 's sister outside the house. See id. By contrast
in Street, the particulars of the statute at issue and the absence of clarity in the verdict,
necessitated the Supreme Court's reviewing the record to try and discern the basis of the
defendant's conviction. Those circumstances are not present in E.J.J. 's case.
The majority opines that E.J .J. 's "physical approach" and "mere presence" at the
investigation scene does not amount to sufficient "conduct" to sustain his conviction,
particularly because "nothing in the record establishes any connection between E.J.J.'s
15
No. 88694-6
Madsen, C.J., concurring
speech or presence and anything that specifically resulted from it." Majority at 9-10.
But, as discussed, the record clearly establishes E.J.J.'s hindering conduct. 16
The majority also contends that E.J.J.'s refusal to close the front door was "so
intertwined" with his "protected speech" of "hurl[ing] abuses on the officers" that the
majority finds "insufficient evidence ofE.J.J.'s conduct to support his conviction on this
basis." Majority at 10. But the presence of speech does not immunize unlawful conduct.
See Cox, 379 U.S. at 564; Williams, 171 Wn.2d at 485 (requiring "conduct in addition to
pure speech in order to establish obstruction of an officer").
Finally, the majority appears to hold that the presence of any speech creates an
uncertainty that requires dismissal. That approach is contrary to Cox, 379 U.S. at 564,
which held, "[T]he fact that free speech is intermingled with ... conduct does not bring
with it constitutional protection." 17 Here, the trial court's findings, which are based on
16
The unchallenged findings spell out the connection that the majority asserts is missing.
"[E.J.J.]'s yelling and repeated refusals to follow the officers' instructions to go back inside the
house caused [R.J.]'s behavior to escalate." CP at 15 (emphasis added) (Finding of Fact 13).
E.J .J.' s behavior "agitated" R.J., and he "knew that his presence was making it difficult for the
officers to keep [R.J.] still and calm." Id. at 14 (Finding of Fact 8-9); see also CP at 15 (Finding
of Fact 20) (E.J.J.'s "presence, yelling and refusal to comply with police escalated [R.J.]'s
behavior.").
17
The majority says Cox is limited to the issue presented therein, which it identifies as "a
constitutional challenge to a statute that prohibited picketing near courthouses." Majority at 12
n.9. But the Supreme Court explained in Cox that it was applying a rule of broader application to
the case at issue. "The examples are many of the application by this Court of the principle that
certain forms of conduct mixed with speech may be regulated or prohibited." Cox, 379 U.S. at563 (citing examples). The Supreme Court explained, '" [I]t has never been deemed an
abridgment of freedom of speech or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means of language, either spoken,
written, or printed."' Id. at 563 (quoting Giboney v. Empire Storage & Jee Co., 336 U.S. at 502).
"We are not concerned here with such a pure form of expression as newspaper comment or a
telegram by a citizen to a public official. We deal in this case not with free speech alone, but
16
No. 88694-6
Madsen, C.J., concurring
substantial evidence in the record, made clear that E.J.J. was being convicted for his
conduct and not for his speech. RP at 100-01. As importantly, the trial court's findings
establish that the officers had "legitimate safety concerns" based on E.J .J. 's conduct as
the scene evolved. CP at 15 (Finding of Pact 19). By ignoring or discounting such
findings, the majority's analysis makes officers less safe. 18 Accordingly, I cannot agree
with the majority's rationale.
An Appropriate Resolution
As noted earlier, while I disagree with the majority's reasoning, I concur in the
result. Obstruction statutes provide an important tool for law enforcement, when used
appropriately. Rather than jeopardize the legitimate use of the obstruction statute, l
would require courts to scrutinize the conduct of the officers involved in these types of
charges to protect the due process rights of all the people we serve.
Dismissing my concurrence as "problematic," the majority impliedly criticizes my
suggestion of adding a common law requirement to the obstruction statute. Majority at
13. But this court "may ... take any ... action as the merits of the case and the interest
of justice may require." RAP 12.2; see also Blaney v. Int 'l Ass 'n of Machinists &
Aerospace Workers, Dist. No. 160, 151Wn.2d203, 213, 87 P.3d 757 (2004) ('"[t]his
with expression mixed with particular conduct." Id. at 564. So noting, the Supreme Court held,
"[T]he fact that free speech is intermingled with such conduct does not bring with it
constitutional protection." Id. In my view, the rule applied in Cox is applicable in E.J.J.'s case
as well.
18
This court is not free to ignore findings that are supported by substantial evidence that
includes witness testimony. See Davis v. Dep 't of Labor & Indus., 94 Wn.2d 119, 124, 615 P.2d
1279 (1980) ("it is not the function of an appellate court to substitute its judgment for that of the
trial court or to weigh the evidence or the credibility of witnesses").
17
No. 88694-6
Madsen, C.J., concurring
court has the inherent discretionary authority to reach issues not briefed by the parties if
those issues are necessary for decision'" (alteration in original) (quoting City of Seattle v.
McCready, 123 Wn.2d 260, 269, 868 P.2d 134 (1994))). We have not shied from adding
reasonable limiting judicial constructions where appropriate and necessary in other
circumstances. For instance, we judicially limited the reach of statutes prohibiting
"threats" to apply only to "true threats" because "[t]he First Amendment prohibits the
State from criminalizing communications that bear the wording of threats but which are
in fact merely jokes, idle talk, or hyperbole." State v. Schafer, 169 Wn.2d 274, 283, 236
P.3d 858 (2010). Accordingly, in State v. Johnston, 156 Wn.2d 355, 364, 127 P.3d 707(2006), we interpreted the bomb threat statute, RCW 9.61.160, to reach only "true
threats" in order to save that statute from constitutional infinnity. Similarly, in Schafer,
we construed the threats-to-kill provision of the harassment statute, RCW 9A.46.020, to
apply only to "'true threats."' 169 Wn.2d at 283-84. Again, this court has added a
"nexus" requirement to save deadly weapon/firearm sentence enhancements from
constitutional infirmity. See State v. Brown, 162 Wn.2d 422, 435,173 P.3d 245 (2007)
(adherence to judicially imposed nexus analysis harmonizes the imposition of mandatory
deadly weapon/firearm sentence enhancements with the constitutional right to bear arms);
State v. Schelin, 147 Wn.2d 562, 575, 55 P.3d 632 (2002) ("Requiring a nexus between
the defendant, the crime, and the weapon protects against violation of the right to bear
arms.").
18
No. 88694-6
Madsen, C.J., concurring
As for the obstruction statute at issue here, we observed in Williams, "Our
constitution puts constraints on the State and guarantees certain protections and liberties
to the people. Our continued interpretation of obstruction statutes as requiring some
conduct ensures these constitutional limits are maintained." 171 Wn.2d at 486. Adding
the common law requirement I propose would refine and continue the limiting judicial
construction we have previously applied to the obstruction statute to maintain its
constitutionality. We should not shy from that task today.
In my view, adding the new common law requirement is the only appropriate way
to resolve this case and address the broader problem that this case touches on; this is why
we granted review in the first place. This court clearly has the authority to so act, and the
interests of justice oblige us to do so. The added requirement would serve both the
community and police officers. Such revision preserves the obstruction statute as an
effective tool that, when used appropriately, plays an important role in protecting
officers, who daily put their lives on the line to serve and protect our community. Such
revision would further the dual goals of curbing improper use of the obstruction statute
and enhancing the community's perception of fairness regarding contacts with law
enforcement. Such revision would play an important role, along with unbiased policing,
de-escalating training, and community policing techniques, in making members of the
community into partners instead of adversaries. Accordingly, I would apply the new
common law requirement noted herein.
On this basis, I concur in the majority's reversal ofE.J.J.'s conviction.
19
No. 88694-6
Madsen, C.J. concurring
/ .T,.f T:
20
State v. E..J.J, No. 88694-6 (Gonzalez, J., concurring)
No. 88694-6
GONZALEZ, J. (concurring)-E.J.J. is not guilty of obstruction. Since
we conclude, among other things, that the State presented insufficient
evidence to sustain his conviction, our dismissal of his conviction is
necessarily with prejudice. From this case, at least as a matter of law, he is
free. On this point we are unanimous. I write separately to emphasize why I
completely agree with the majority's analysis of E.J.J. 's free speech rights
and agree, in part, with the chief justice's concurrence that the context of this
case matters.
This case is about our liberty in context. On July 4, 1776, we
announced our independence from Great Britain with these ringing words:
"WE hold these Truths to be self-evident, that all Men[lJ are created equal,
that they are endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the Pursuit of Happiness." THE
DECLARATION OF INDEPENDENCE para. 2. The history of this nation is the
history of our efforts to keep this promise to each other, even if at times we
1 Unfortunately, our founders mistakenly omitted women from their stirring statements.
1
State v. E.J.J., No. 88694-6 (Gonzalez, J., concurring)
fall short. See generally RICHARD KLUGER, SIMPLE JUSTICE (1975). This
second sentence of our Declaration of Independence encapsulates the moral
ideal to which we must strive if we are to be true to our best heritage.
Abraham Lincoln believed the Declaration represented principles through
which the United States Constitution should be interpreted. JAMES M.
McPHERSON, ABRAHAM LINCOLN AND THE SECOND AMERICAN REVOLUTION
126-27 (1990); 2 ABRAHAM LINCOLN, LIFE AND WORKS OF ABRAHAM
LINCOLN: EARLY SPEECHES: 1832-1856, at 248-49 (1907). I agree.
E.J.J. is entitled to this Liberty. He is entitled, like everyone else in
our state, to freedom of speech and equal justice before the law. WASH.
CONST. art. I,§ 5; State v. Monday, 171Wn.2d667, 680, 257 P.3d 551(2011). We can keep our promise to him and to each other that all people
are equal before the law. We must keep this promise, and we must keep it in
a way that is specific enough to be meaningful. 2 Today, the court has done
so by articulating a clear test when we are considering whether the
obstruction statute has been constitutionally applied: that we will scrutinize
the record to ensure the "conviction could not have been based on speech
alone." Majority at 7. We do this to ensure that constitutionally protected
speech is not criminalized. Henceforth, if our careful review of the record
persuades us that the conviction could have been based on constitutionally
protected speech alone, we will reverse.
2Atmospheric calls for equal justice have not kept this promise. Like the man said,
"LiJustice for all just ain't specific enough." JOHN LEGEND & COMMON, Glory, on SELMA
(Columbia Records 2014).
2
State v. E.J.J., No. 88694-6 (Gonzalez, J., concurring)
Let me explain why I write of such lofty things in what might be
called a garden variety obstruction case.
On February 14, 2011, E.J.J.'s mother called the police to assist her
family in crisis. E.J.J. 's younger sister was intoxicated and breaking
windows. The police responded and intervened. E.J.J., 17 years old at the
time, saw one officer raise his nightstick as the police tried to subdue his
sister. E.J.J. was concerned for his sister's welfare and let the police know
he was watching. E.J.J. and one officer called each other names. An officer
ordered E.J.J. to retreat to his house. At first E.J.J. refused, but ultimately he
acceded. Once inside, E.J.J. asserted his right to watch the police from
inside his own home. He refused an unlawful order to close his own door.
He refused to turn away. For this, he was arrested, charged, and convicted.
(If this is typical of the cases for which King County wants to build a new
youth jail, perhaps the community opposition is understandable.) 3
I started by saying this case is about Liberty in context. The real
context is not subsequent events in Missouri 4 or New York. 5 The context is
3 The King County Council voted 7-0 to approve a design-build contract for a new $210
million King County Children and Family Justice Center on February 9, 2015, afier six
hours of "community members deliver[ing] fiery public testimony accusing Council
members of racism." Marcus Harrison Green, Activists Can't Stop the Youth Detention
Center. So What Now?, SEATTLE WEEKLY, Feb. 17, 2015, available at
http://www.seattleweekly.com/home/956961-129/activists-cant-stop-the-youth-detention
(noting that "[a]ctivists cite the county's own data that reveals that as of 2012, 42 percent
of the juveniles incarcerated in Washington's most populous county were black, even
though blacks account for only 7. 7 percent of the general population-noting that this
figure is almost identical to the national average (43 percent), belying our region's claim
as a bastion of progressive values").
4
A police officer shot and killed Michael Brown, an unarmed African-American
teenager, on August 9, 2014, in Ferguson, Missouri. The shooting prompted protests that
roiled the area for weeks. A grand jury decided not to indict the police officer on
3
State v. E.JJ., No. 88694-6 (Gonzalez, J., concurring)
that E.J.J. is a young black man in a city where the police have been found
by the United States Department of Justice (DOJ) to use excessive force
against nonviolent black youth, especially when intoxication or mental
health issues are involved, and that the charge of obstruction is used against
black defendants disproportionately. 6 Even if the officers who responded to
E.J.J.'s family that night are unfairly painted by the DOJ's brush, E.J.J. had
cause to be concerned for his sister and a right to observe, especially from
inside his own home.
I acknowledge that E.J .J. 's behavior was, in some ways, typically
juvenile. It must have made it harder for the police officers to do their jobs;
verbally challenging officers "'operates, of course, to impair the working
efficiency of government agents."' City ofHouston v. Hill, 482 U.S. 451,
November 24, 2014. The announcement set off another wave of protests. See Jack
Healy, Ferguson, Still Tense, Grows Calmer, N.Y. TIMES (Nov. 26, 2014), available at
http://www.nytimes.com/2014/1112 7/us/michael-brown-darren-wilson-ferguson-
protests .html?_r=O.
5
Eric Garner, an unarmed African-American man, choked to death when a police officer
used a chokehold on him and compressed his chest on July 18, 2014, in New York City.
Just over a week after the grand jury's announcement in the Michael Brown case, on
December 3, 2014, a grand jury determined not to indict the police offer in relation to the
death of Eric Garner, triggering a wave of protests. See J. David Goodman & Al Baker,
Wave of Protests after Grand Jury Doesn't Indict Officer in Eric Garner Chokehold
Case, N.Y. TIMES (Dec. 3, 2014), available at
http://www.nytimes.com/2014/ 12/04/nyregion/grand-jury-said-to-bring-no-charges-in-
staten-island-cho.keholcl-dcath-of-cric-garner.html.
6 In its exhaustive investigation of the Seattle Police Department (SPD), the DOJ found
that "among the 76 'obstruction only' charges [filed in 2008], 51 % involved Black
individuals." U.S. Dep't of Justice Civil Rights Div., Investigation of the Seattle Police
Department 28 (2011 ), available at
http://www.j ustice. govI crt/about/ spl/documents/ spd_ findletter_ 12-16-11. pdf. Though
this alone should be cause for grave concern given that African Americans make up about
7 percent of Seattle's population, it is especially alarming when coupled with the fact that
more than half of all incidents involving excessive or unreasonable uses of force by the
SPD involved nonwhite subjects. Id.4
State v. E.J.J., No. 88694-6 (Gonzalez, J., concurring)
464 n.12, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (l 987) (quoting Note, Types of
Activity Encompassed by the Offense of Obstructing a Police Officer, 108 U.
PA. L. REv. 388, 407 (1960)). But free speech often "demands some
sacrifice of efficiency." Id. We should not criminalize and pathologize
typical juvenile behavior.
E.J .J. 's speech was clothed in constitutional protection, just as police
officers are clothed with the authority of law. I am intrigued by the new
common law requirement proposed by the chief justice, and I agree with her
that we should consider officers' conduct in context when determining
whether there is sufficient evidence to sustain a conviction. Concurrence
(Madsen, C.J.) at 6. By assuming the authority of the law, police also take
on the burden of restraint in its use. As the inimitable Judge Kozinski
observed, "[W]hile police, no less than anyone else, may resent having
obscene words and gestures directed at them, they may not exercise the
awesome power at their disposal to punish individuals for conduct that is not
merely lawful, but protected by the First Amendment." Duran v. City of
Douglas, 904 F.2d 1372, 1378 (9th. Cir. 1990). Both our state and federal
Bill of Rights strongly protect E.J.J.'s right to observe and criticize the
police. Id.; State v. Williams, 171Wn.2d474, 484-86, 251P.3d877 (2011).
Our obstruction statutes must be narrowly construed to conform to these
constitutional free speech protections. Williams, 171 Wn.2d at 486; State v.
White, 97 Wn.2d 92, 97, 640 P.2d 1061 (1982). Simply put, "in order to
find obstruction statutes constitutional, appellate courts of this state have
long required conduct." 171 Wn.2d at 485 (citing State v. Bobic, 140 Wn.2d
5State v. E.JJ, No. 88694-6 (Gonzalez, J., concurring)
250, 264, 996 P.2d 610 (2000)). As the American Civil Liberties Union of
Washington rightly points out, E.J.J. was not punished for his conduct.
E.J .J. was punished because he was watching and speaking when the police
did not want him to. The trial court's oral ruling makes this abundantly
clear:
[J]ust by being there and raising his voice [E.J.J.] made the situation
worse for the officers who were trying to calm down [his sister].
And so the fact that he refused to close the door made the
situation worse because it wasn't as if at that point [E.J.J.] was simply
standing in his house observing, which he would have every right to
do, but [E.J.J.] was engaged in a [verbal] back-and-forth with the
. officers. The word "taunting" came up. I don't know whether that
accurately describes what went on here, but it's very clear to the court
that by raising his voice and calling the officers names, he was
making his presence known to his sister, and the testimony was that
through his presence, it made it more difficult for the officers to do
their job.
So I am finding [E.J.J.] guilty beyond a reasonable doubt of
obstructing these law enforcement officers.
Report of Proceedings at 100. E.J.J. was not arrested and convicted for any
of his own conduct. He was arrested and convicted for his speech and his
refusal to shut his door and turn away.
E.J .J.' s conviction was not just, and it is not lawful. If the obstruction
charge can be used this way, it violates the Liberty we hold so dear. We
reverse not despite E.J.J. 's actual obstruction of the officers but because his
conduct was not criminal. Instead, his Liberty to look at and speak to the
6
State v. E.JJ, No. 88694-6 (Gonzalez, J., concurring)
police is protected by our constitutions, even if he acted like the juvenile he
was at the time.
With these observations, I fully concur in the majority.
7
State v. E.JJ, No. 88694-6 (Gonzalez, J. concurring)
8