¶17 (concurring) — I concur with the majority’s reversal of E.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, un*509challenged findings of fact. Given the testimony of the witnesses and the inferences in favor of the state on sufficiency review, there is ample evidence of E.J.J.’s obstructive conduct to affirm his conviction for obstructing a law enforcement officer under RCW 9A.76.020(1).
¶18 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 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.11 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
¶19 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 *510in 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, 51 percent of the obstruction charges filed in Seattle during a two-year period were filed against African Americans, even though African Americans comprise about only 8 percent of Seattle’s population.12 When called 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.
¶20 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.13 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 2.14 Of significance here, the DOJ’s complaint alleged that “SPD officers escalat[e] situations and us[e] excessive *511force when arresting individuals for minor offenses, particularly during encounters with persons with mental illnesses and those under the influence of alcohol or drugs.” Id. 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 excessive force is tolerated.” Id.15 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, 36.16 As discussed below, no such techniques were employed here.
¶21 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.
¶22 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.
¶23 In line with the Settlement Agreement reached between the city of Seattle and the DOJ, officers could have *512employed de-escalation strategies when responding to E.J.J.’s concern for his sister’s welfare.17 Rather than deescalating 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.18
*513¶24 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,19 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.20 It will preserve the proper utility of the obstruction statute while guarding against the statute’s misuse.
¶25 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 *514in its Miranda decision.21 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 (1931)). 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 of law enforcement.’ ” Id. at 442, 441 n.3 (quoting L.A. Times, Oct. 2, 1965, at 1).
¶26 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
¶27 The obstruction statute under which E.J.J. was convicted 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).
¶28 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 *515only two of the trial court’s 27 findings of fact, findings of fact 19 and 21. See Appellant’s Opening Br. at 2. All other unchallenged findings are verities on appeal. State v. B.J.S., 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).22 Those findings are summarized as follows.
¶29 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. E.J.J. lives with his mother and was home when she called 911.
¶30 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).
*516¶31 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. CP at 15 (Findings of Fact 19-20). Because E.J.J. continued to refuse to close the front door, he was arrested for obstruction.
¶32 After hearing testimony as above described, the trial court opined and ruled as follows:23
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.
*517One 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 [72. <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.] 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.J.J.] 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.
*518In 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).
¶33 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 877 (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. “[Conduct 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).
¶34 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 & *519Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949)).
¶35 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 9 A. 76-.020(1). See id. (requiring “conduct in addition to pure speech in order to establish obstruction of an officer”).
¶36 Instead of following Cox,24 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 507.1 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.25 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 con*520struing 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.
¶37 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 basis for the 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.
¶38 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.
¶39 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 Law § 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 *521subsequent 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 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.
¶40 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 speech or presence and anything that specifically resulted from it.” Majority at 505-06. *522But, as discussed, the record clearly establishes E.J.J.’s hindering conduct.26
¶41 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 of E.J.J.’s conduct to support his conviction on this basis.” Majority at 505-06. 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”).
¶42 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.”27 Here, the trial court’s findings, which are based on substantial evidence in the record, made clear that *523E.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 Fact 19). By ignoring or discounting such findings, the majority’s analysis makes officers less safe.28 Accordingly, I cannot agree with the majority’s rationale.
An Appropriate Resolution
¶43 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, I 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.
¶44 Dismissing my concurrence as “problematic,” the majority impliedly criticizes my suggestion of adding a common law requirement to the obstruction statute. Majority at 508. 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, 151 Wn.2d 203, 213, 87 P.3d 757 (2004) (“ ‘[t]his 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 *524communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole.” State v. Schaler, 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 infirmity. Similarly, in Schaler, 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) (plurality opinion) (“Requiring a nexus between the defendant, the crime, and the weapon protects against violation of the right to bear arms.”).
¶45 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.
¶46 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 *525preserves 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.
¶47 On this basis, I concur in the majority’s reversal of E.J.J.’s conviction.
Wiggins, J., and Seinfeld, J. Pro Tem., concur with Madsen, C.J.As a practical matter, the State could meet its burden by proving police attempted to de-escalate the situation through approved de-escalation techniques.
City op Seattle Office op Prop’l Accountability, Auditor’s Report on Obstruction Arrests: January 2006-July 2008, at 7 (2008), http://www.seattle.gov/Documents /Departments/OPA/Auditor/AuditorObstruction.pdf; see also City of Seattle Office of Intergovernmental Relations, The Greater Seattle Datasheet, Demographics, Population by Race in 2010, http://www.seattle.gov/oir/datasheet/demographics.htm (noting Seattle’s African American population as 8.4 percent).
See United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980) (“Fed.R.Evid. 201(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).
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, No. 12-CV-1282, is available on the DOJ’s website at http://www.justice.gov/iso /opa/resources/877201272719531542159.pdf.
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.
The Settlement Agreement is available on the DOJ’s website at http:// www.justice.gov/iso/opa/resources/407201283174056123976.pdf.
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 op Justice, Memorandum of Understanding Between the U.S. and the City of Seattle at 3 (July 27, 2012), http://www.justice.gov/iso/opa /resources/592201283174042815512.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.
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 spectrum, with the former 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 trust in the system.’ ” Wash. State Minority & Justice Comm’n & Wash. State Ctr. for Ct. Research, Justice in Washington State Survey: 2012, at 1 (2014), http://www.courts.wa.gov/content/publicUpload/News/Justice%20in%20 Washington%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 terms 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 trusted 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,
[t]he 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 *513equal, 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.
See supra note 17. Moreover,
attitudes about the fairness of the justice system are likely to color citizens’ views of much of the rest of the political system. . . . [Pleople 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 U.S. Criminal Justice System, 67 J. Pol. 762, 764 (Aug. 2005), http://www.polisci.pitt.edu/sites/default/files/pubs/HurwitzPeffley.2005.RacialDiv ide.pdf.
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 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.
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).
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 inteijecting 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.
I quote at length from the trial court’s oral ruling because both the majority and Justice González’s concurrence misconstrue the basis of the trial court’s opinion.
Similarly, Justice González’s concurrence does not discuss Cox.
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 § 34-11(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^]’ an officer.” Id. at 462 (alterations in original). The ordinance in Hill also had no intent element, as RCW 9A.76.020(1) does.
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 (Findings 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.”).
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 507 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. at 563 (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. (quoting Giboney, 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 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.
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”).