The State of Washington, Respondent, v. E.J.J., Petitioner, 183 Wash. 2d 497

Johnson, J. ¶1 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.

Facts and Procedural Posture ¶2 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. 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 two doors: a wrought iron screen door, through which someone could see out and communicate, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw farther 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 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.

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 ¶3 The free speech provision of the First Amendment 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. ¶4 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. The obstruction statute provides, “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). 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, 171 Wn.2d 474, 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 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). 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 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. ¶6 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(3).

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. ¶7 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 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. ¶8 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. 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 (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 held that 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) (“To 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 countenance 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. ¶9 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. ¶10 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. ¶11 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 connection between E.J.J.’s speech or presence and anything that specifically resulted from it. ¶12 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 appears to be dispositive), we find insufficient evidence of conduct from the exchange between E.J.J. and police at the front door. ¶13 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 slight 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 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. ¶14 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 of Houston 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.” Hill, 482 U.S. at 462-63. The similarity between the facts of Hill and the present case are striking.

Furthermore, the record demonstrates that the officers in this case ordered E.J.J. to close the solid wood door in order to silence his harsh criticism and observation of police activity. In conclusion, we find that there is not sufficient evidence to support E.J.J.’s conviction. ¶15 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 508-09.

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 ¶16 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 decision of the trial court is reversed and charges are dismissed. Owens, Fairhurst, Stephens, González, and Gordon Mc-Cloud, JJ., concur. Because we resolve this case on First Amendment grounds, we do not address E.J.J.’s privacy claim. 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.

According to the officers, E.J.J. resorted to the use of profanity toward them. E.J.J. testified that the officers were also yelling profanities and calling him names. “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Although most 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. “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.” 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 if E.J.J.’s speech fell within one of the unprotected speech categories. See State v. Kilburn, 151 Wn.2d 36, 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. 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 508-09. However, it is the chief justice who 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. 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 519-20. 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 from 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 the state and does not specify certain types of behavior beside the rather broad language “hinders, delays, or obstructs.” 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.