                                                                         FILED 

                                                                       OCT 22, 2015 

                                                               In the Office of the Clerk of Court 

                                                             WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                        )
                                            )         No. 32859-7-111
                    Respondent,             )
                                            )
      v.                                    )
                                            )         UNPUBLISHED OPINION
NARIAH CORDOVA,                             )
                                            )
                    Appellant.              )

      BROWN, J. -   Nariah Cordova appeals her convictions for disorderly conduct and

obstructing a law enforcement officer. In an as-applied challenge, Ms. Cordova

contends the disorderly conduct ordinance found in Pasco Municipal Code (PMC)

9.06.010 is unconstitutional because it infringes on her First Amendment rights. Ms.

Cordova next contends her unlawful seizure cannot support an arrest for obstructing a

law enforcement officer. We disagree with Ms. Cordova's contentions and affirm.

                                        FACTS

      Officer Dean Perry of the Pasco Police Department responded to a call regarding

the location of Ms. Cordova, a reported teenaged runaway, at an area McDonald's.

Officer Perry and Ms. Cordova differ in their accounts of what subsequently transpired.

      According to Officer Perry, as he was responding to the call, he learned Ms.

Cordova's mother was at the McDonald's with Ms. Cordova. When he arrived at the
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f    No. 32859-7-111
     State v. Cordova
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     McDonald's, he noticed quite a few people in the dining area. He approached Ms.

     Cordova and her mother, who were seated at a table, and saw Ms. Cordova loudly

     arguing with her mother. After identifying himself as a police officer, Officer Perry

     further noted Ms. Cordova's "behavior was belligerent and aggressive towards her

     mother" and him. Report of Proceedings (RP) at 42. Ms. Cordova used foul language.

     Officer Perry testified it was clear Ms. Cordova "was going to have her own way in this

     situation or there was gonna be no way." RP at 42: As Ms. Cordova continued to yell

     louder, people began to stop and watch, and her mother asked that the trio go outside

     as Ms. Cordova's behavior "was clearly stopping business." RP at 43.

            Ms. Cordova refused to go outside. Officer Perry, intending to escort her out,

     grabbed her arm and elbow, putting her in a low-force escort hold. Ms. Cordova, still

     not complying with his directives, decided to either fight or flee. Because he was aware

     of the amount of traffic on the road near the McDonald's and the dangers of chasing a

     runaway through that traffic, Officer Perry escalated the force used and rolled into an

     arm bar technique. Ms. Cordova continued to struggle, which resulted in Officer Perry

     pinning her against a counter so he could handcuff her; Ms. Cordova sustained a

     scrape above her eye. Despite wanting to arrest her for disorderly conduct, Officer

     Perry released Ms. Cordova to her mother.

           According to Ms. Cordova and her mother, they were sitting quietly in

     McDonald's, with Ms. Cordova talking in her normal voice, when Officer Perry

     approached them. He loudly asked questions, which Ms. Cordova answered. When



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Ms. Cordova's mother suggested they go outside, Ms. Cordova stood up to leave. After

rebuffing her mother's attempt to grab her hand, Officer Perry grabbed Ms. Cordova,

threw her into the counter, and said she was under arrest. Then, in response to Ms.

Cordova's comment Officer Perry "Iike[s] it rough," Officer Perry grabbed her head and

slammed it into the counter. RP at 122.

      The juvenile court found Ms. Cordova guilty of disorderly conduct in violation of

PMC 9.06.010(1)(C) and obstructing a law enforcement officer. Ms. Cordova appealed.

                                       ANALYSIS

                        A. Constitutionality of PMC 9.06.010(1 )(C)

      The issue is whether PMC 9.06.010(1)(C) is unconstitutional as applied to Ms.

Cordova. PMC 9.06.010(1 )(C) reads: "A person is guilty of disorderly conduct if that

person does, with intent to cause or recklessly create a risk of public inconvenience,

annoyance or alarm: ... Engages in fighting or in violent, tumultuous, or threatening

behavior." Ms. Cordova contends her speech alone cannot constitutionally serve as the

basis for her conviction as (1) her speech was constitutionally protected under the First

Amendment, 1 (2) disorderly conduct ordinances have been limited to the use of fighting

words,2 and (3) her speech did not amount to fighting words.


       1 Ms. Cordova solely argues her conviction is unconstitutional under the First
Amendment to the United States Constitution. Thus, the applicability of the parallel
state constitutional provision is not addressed.
      2 "Fighting words are words whose very utterance inflict injury or tend to incite an
immediate breach of the peace." State v. Montgomery, 31 Wn. App. 745, 754,644 P.2d
747 (1982) (citing Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103,31 L. Ed. 2d 408
(1972».

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       The Washington Supreme Court addressed a challenge to the constitutionality of

a similar Seattle ordinance prohibiting disorderly conduct on a bus, which included "loud

or raucous behavior" that "unreasonably disturbs others." City of Seattle v. Eze, 111

Wn.2d 22, 24, 759 P.2d 366 (1988) (quoting Seattle Municipal Code 12A.12.040(F)).

While the challenge in Eze related to the ordinance's overbreadth, the court's analysis is

instructive. The court first recognized the Seattle ordinance regulated behavior, not

pure speech. Id. at 31. The Eze court then held the ordinance, to the extent it affected

"speech," was not unconstitutional. !d. The court stated "restrictions on the volume of

speech do not necessarily violate the First Amendment, even when that speech occurs

in an area traditionally set aside for public debate-the so-called 'public forum.'" Id.

       Here, Ms. Cordova fails to recognize the very terms of PMC 9.06.010(1)(C), like

that of the ordinance at issue in Eze, regulates behavior, not pure speech. Unlike the

cases she cites, Ms. Cordova was not charged with creating a disturbance by using

abusive, lewd, vulgar, obscene, or crude language. See Montgomery, 31 Wn. App.

745; City of Kennewick v. Keller, 11 Wn. App. 777, 525 P.2d 267 (1974); City of Pasco

v. Dixson, 81 Wn.2d 510, 503 P.2d 76 (1972). Neither Officer Perry nor the juvenile

court focused on Ms. Cordova's speech in finding her guilty of disorderly conduct.

Rather, they both focused on her conduct. The court's findings specifically state Ms.

Cordova's "conduct within the restaurant was intentional, tumultuous, and created public

inconvenience, annoyance, or alarm." Clerk's Papers at 100 (emphasis added). And

while Officer Perry testified Ms. Cordova used foul language, he also testified she was



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not disorderly because of her words; instead, he believed Ms. Cordova committed

disorderly conduct by engaging in "tumultuous behavior likely to cause public alarm,"

namely her demeanor, her volume, and generally being disruptive. RP at 63. Thus, it

was Ms. Cordova's conduct, not her speech, that was the basis for her conviction; her

conviction for disorderly conduct under PMC 9.06.010(1 )(C) was constitutional.

                        B. Obstruction of a Law Enforcement Officer

       The issue is whether Ms. Cordova's conviction for obstruction of a law

enforcement officer was based on an unlawful seizure. Ms. Cordova contends Officer

Perry did not have a lawful basis for her arrest as he was not engaged in an official

police duty sufficient to support her conviction.

       "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 establish obstruction of a law

enforcement officer, Washington case law requires specific conduct. State v. EJ.J.,

183 Wn.2d 497,502,354 P.3d 815 (2015).

       Officer Perry was at the McDonald's responding to a report of a runaway. Under

the Family Reconciliation Act, chapter 13.32A RCW, "a law enforcement officer is

unquestionably fulfilling his ... role as a community caretaker when he ... encounters

a child runaway or a child beyond the control of [her] parents." State v. A.A., 187 Wn.

App. 475, 488, 349 P.3d 909 (2015). Officer Perry's response to the report and his

subsequent arrival at McDonald's was thus an official duty. See State v. Turner, 103



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Wn. App. 515,526, 13 P.3d 234 (2000) ("Officers are performing official duties ...

provided they were not acting in bad faith or engaging in a 'frolic' of their own."). While

there, Officer Perry observed behavior indicating Ms. Cordova would not go back home

with her mother. This behavior included acting belligerent, getting louder, and yelling at

Officer Perry, which in turn caused McDonald's patrons to stop and take notice of what

was occurring. This subsequent behavior constituted disorderly conduct.

       At this point, Officer Perry asked Ms. Cordova to go outside. When she refused

and attempted to resist, she obstructed a law enforcement officer. 3 See id. (sufficient

evidence to support a conviction for obstructing a law enforcement officer as officer was

performing official duties when officer had reasonable suspicion defendant committed

the crime of public indecency by urinating in public and defendant refused to give his

name, threatened the officer, and lunged at the officer).

       Affirmed.




       3 In her brief, Ms. Cordova contends her seizure cannot be justified under the
community caretaking exception to the warrant requirement and thus her seizure can
only be justified on a suspicion of criminal activity, i.e., the disorderly conduct in violation
of her First Amendment rights. She argues the community caretaking function allowed
Officer Perry to approach her and ask her questions but did not authorize him to
physically detain her. But Ms. Cordova did commit a crime in Officer Perry's presence
while he was at the McDonald's performing an official duty. The seizure was lawful. No

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       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                             Brown, J.

WE CONCUR:




Siddoway, C.J.                               K rsmo, J.




need exists to address whether his actions fell within the exception.


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