(concurring) — I concur in the opinion of the majority because it is based upon the narrow issue of an appropriate instruction on the use of force to prevent an unlawful arrest. I am not fully convinced of the conclusion reached on the issue of outrageous conduct, but I also recognize that issue was not raised by Petitioner Valentine at trial or before the Court of Appeals, and that it was first identified by the dissenting judge in the Court of Appeals.
We are committed in appellate courts to following established rules of procedure and law. This sometimes results in "blinders” which obscure the reality of circumstances in cases before us. This is one such case.
It is my hope that this case will not provide law enforcement officers a license to target a person as a "suspicious subject” merely because the person is standing on a street corner at midday "wearing a black coat,” to observe the person drive away in an automobile and follow the automobile until a turn signal violation occurs, to then stop the person, with participation of at least four police officers, and to engage in a course of conduct which results in subduing, tackling and handcuffing the person whose obstreperous response to this confrontation then results in trial and conviction for third degree assault against a police officer engaged in performance of official duties.
Under the undisputed facts of this case, Petitioner Valentine did nothing to justify characterizing him as a "suspicious subject” except being an African-American male person standing on a street corner in Spokane at midday. The law in all its majesty requires something more than that.