State v. E.J.J.

González, J.

¶48 (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.

¶49 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[29] are created equal, that they are endowed by their Creator with certain unalienable *526Rights, that among these are Life, Liberty and the Pursuit of Happiness.” The Declaration of Independence para. 2 (U.S. 1776). The history of this nation is the history of our efforts to keep this promise to each other, even if at times we 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.

¶50 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, 171 Wn.2d 667, 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.30 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 503-04. 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.

¶51 Let me explain why I write of such lofty things in what might be called a garden variety obstruction case.

¶52 On February 14, 2011, E.J.J.’s mother called the police to assist her family in crisis. E.J.J.’s younger sister *527was 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 Kang County wants to build a new youth jail, perhaps the community opposition is understandable.)31

¶53 I started by saying this case is about Liberty in context. The real context is not subsequent events in Missouri32 or New York.33 The context is that E.J.J. is a young black man in a city where the police have been found *528by 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.34 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.

¶54 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 of Houston v. Hill, 482 U.S. 451, 464 n.12, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (quoting Note, Types of Activity Encompassed by the Offense of Obstructing a Police Officer, 108 U. Pa. L. Rev. 388, 407 (I960)). But free speech often “demands some sacrifice of efficiency.” Id. We should not criminalize and pathologize typical juvenile behavior.

¶55 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 513. By assuming the authority of the law, police also take on the burden of *529restraint 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, 171 Wn.2d 474, 484-86, 251 P.3d 877 (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.” Williams, 171 Wn.2d at 485 (citing State v. Bobic, 140 Wn.2d 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 *530convicted for his speech and his refusal to shut his door and turn away.

¶56 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 police is protected by our constitutions, even if he acted like the juvenile he was at the time.

¶57 With these observations, I fully concur in the majority.

Unfortunately, our founders mistakenly omitted women from their stirring statements.

Atmospheric calls for equal justice have not kept this promise. Like the man said, “[j]ustice for all just ain’t specific enough.” John Legend & Common, Glory, on Selma (Columbia Records 2014).

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, after 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, http://www.seattleweekly.com/home/956961-129/activists-cant-stop-the-youth-de tention (noting that “[alctivists 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”).

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 November 24,2014. The announcement set off another wave of protests. See Jack Healy, Ferguson, Still Tense, G?-ows Calmer, N.Y. Times (Nov. 26, 2014), http://www.nytimes.com/2014/ll/27/us/michael-brown-darren-wilson-ferguson-pro tests.html?_r=0.

Eric Garner, an unarmed African-American man, choked to death when a police officer used a choke hold 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 officer in relation to the death of Eric Garner, triggering a wave of protests. See J. David Goodman & A1 Baker, Wave of Protests after Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, N.Y. Times (Dec. 3, 2014), *528http://www.nytimes.com/2014/12/04/n3fregion/grand-jury-said-to-bring-no-charges -in-staten-island-chokehold-death-of-eric-garner.html.

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 op Justice Civil Rights Div., Investigation op the Seattle Police Department 28 (2011), http://www.justice.gov/crt/about/spl /documents/spd_findletter_12-16-ll.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.