                                                                               FILED
                                                                              iPR 1 9 2019
                                                                              5HING r(^ ilATE
                                                                            ^UP^MENsmRT

 IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CITY OF SHORELINE,                                                    No. 95707-0


                           Respondent,                                  ORDER
                                                                     AMENDING
                                                                       OPINION


SOLOMON DION MCLEMORE,

                           Petitioner.


     It is hereby ordered that that the lead opinion of Gonzalez, J., filed April 18, 2019,
in the above entitled case is changed as indicated below.
     On page 17, line 2 of the slip opinion, beginning with "We",strike all material down
to and including "opinion." on line 3 and insert:
      We in the lead opinion would hold the city presented insufficient evidence to sustain
  McLemore's conviction and remand to the trial court for further proceedings consistent
  with this opinion. However, we recognize this opinion has garnered only four
  signatures. "Therefore, there being no majority for the reversal of the judgment of the
  trial court, it necessarily stands affirmed, and the order of this court is that the judgment
  appealed from be and it is hereby affirmed." Peterson v. City ofTacoma. 139 Wash.
  313, 313, 246 P. 944 (1926).

     DATED this            day of April, 2019.



                                                 Chief Justice
  APPROVED:
 rruE
  IN CLERK* OFFICE
                                                               This opinion was
                                                                Med for rpQOx
       iamiecFWkaHNOTOH                                     at X6i>lon
       AP            2019
                                                              Susan t. Carlson
   CHIEF JUS
                                                            Supreme Court Clerk




    IN THE SUPREME COURT OF THE STATE OF WASHINGTON


CITY OF SHORELINE,

                        Respondent,             No. 95707-0



SOLOMON DION MCLEMORE,
                                                Filed      APR 1 8 2019
                        Petitioner.



       Gonzalez, J.—This case involves a clash of deeply significant public

policies. As a modem society, we condemn domestic violence and have

vested police with the power and duty to investigate and to intervene. As a

society governed by our constitutions, there are limits on the State's power

to punish speech, to demand an individual's active cooperation, or to intrude

into a home.


       Our homes hold a special place in our constitutional jurispmdence. It

is the first place specifically called out in our constitution, and it is called out

to give it special protection. Under our constitution,"[n]o person shall be

disturbed in his private affairs, or his home invaded, without authority of

law." Const, art. I, § 7(emphasis added). "In no area is a citizen more
City ofShoreline v. McLemore, No. 95707-0

entitled to his privacy than in his or her home. For this reason,'the closer

officers come to intrusion into a dwelling, the greater the constitutional

protection'." State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994)

(citation omitted)(quoting           v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d

419 (1984)). Officers must have a warrant or a well-established exception to

the warrant requirement before intruding into a home. Id. at 181. Our

constitutions also rigorously protect speech, even obnoxious speech. State v.

E.J.J., 183 Wn.2d 497, 501, 354 P.3d 815 (2015).

       Here, a bystander called 911 about a loud, late-night argument in a

home. Police officers, appropriately concerned about domestic violence,

went to that home to investigate. They heard an argument and demanded

entry. Solomon McLemore and his girlfriend, Lisa,' lived in that home,

refused to open their door, and told the officers to go away. Instead, the

officers broke down that door under a well-established exception to the

warrant requirement: community caretaking. However, when the officers

found that no one was injured and that there was no evidence of any other

crime, they arrested McLemore for obstruction of a law enforcement officer.

This arrest appeared to be mostly based on McLemore's belligerent refusal

to open his door. He was subsequently convicted of the charge. We must

' We use only Lisa's first name to avoid subjecting her to unwanted publicity. No
disrespect is intended.
City ofShoreline v. McLemore, No. 95707-0

decide whether, under the obstruction statute as properly limited to its

constitutional scope and the facts of this case, the conviction may stand. It

may not.

                                    Facts


      Late one night, a bystander heard a disturbance and called 911. Three

Shoreline police officers responded and heard the sounds of an argument

coming from an apartment above a dry cleaner's shop. Police heard a

woman shouting,"'[Y]ou can't leave me out here,"'"T'm going to call the

police,"' and "something along the lines of T'm reconsidering our

relationship'." Clerk's Papers(CP) at 149. The officers laiocked on the

door of the apartment, rang the doorbell, announced they were Shoreline

police, and demanded to be let in. No one in the apartment replied, but the

sounds ofthe argument stopped. Using amplification and much profanity,

the officers insisted they would break down the door if they were not let in.

McLemore told them to leave. After several minutes of this, police heard

the sound of breaking glass. The officers started to break down the door.

      McLemore and Lisa lived together with their six month old son in that

apartment. The couple had had a difficult night. McLemore had

accidentally broken a window, and Lisa was upset about having to repair it.

McLemore had told Lisa he would clean up the glass but instead went to
City ofShoreline v. McLemore, No. 95707-0

play pool with a friend. When he came home at about one o'clock in the

morning, he and Lisa argued. Since their child was asleep, they took their

argument outside to a balcony. McLemore claimed he accidentally locked

Lisa outside on that balcony when he came in. Minutes after he let Lisa

back in, the police started banging on their door. McLemore told the

officers that they were okay, that he was recording the incident, and that they

should leave. At McLemore's insistence, Lisa confirmed that she was fine

and that she also wanted the officers to leave. Instead, rightfully concerned

about domestic violence, the officers broke down her door.

      After the door was "completely destroyed," CP at 152, the officers

entered with their guns drawn, handcuffed McLemore, and put Lisa and

McLemore into separate police cars. Officers determined Lisa was not

injured. Lisa told the officers that the couple had not opened the door

because they were afraid one of them would be arrested if they did. Officers

arrested McLemore for obstruction of a law enforcement officer under ROW


9A.76.020. No other charges were filed.

      Before trial, McLemore moved to dismiss the charge on the grounds

the city had offered "no evidence that McLemore willfully hindered or

delayed an officer's lawful investigation as the law does not require any duty

of a person to act in a warrantless search oftheir residence." CP at 139. The
City ofShoreline v. McLemore, No. 95707-0

judge denied the motion, concluding that the charges were sustainable under

State V. Steen, 164 Wn. App. 789, 265 P.3d 901 (2011). The judge also

excluded any defense related to McLemore's assertion that the officers did

not have the right to enter without a waiTant.

       In closing argument, the city stressed that most of the elements were

not in dispute. Instead, the "element that gets the bulk of the argument. . .

and the bulk ofthe scrutiny in this testimony was did the defendant willfully

hinder or delay or obstruct the discharge of[officers'] duties." CP at 468.

The city characterized McLemore's refusal to open the door as a willful

obstruction. Defense counsel argued that "[it is] not McLemore's job to

help" the police and that "he did nothing. He simply sat in his house." Id. at

478.


       During deliberations, the jury sent out one question: "Does a person

have the legal obligation to follow the police instructions, in this case?" Id.

at 43. The court responded,"[Y]ou have been provided with the law in this

case in the jury instructions." Id. The instructions, including the to-convict

instruction, mirrored the pattern jury instructions, and no specific instruction

on a citizen's obligation to open a door to a warrantless entry was included.

See, e.g., id. at 59; 1 lA WashingtonPractice: Washington Pattern
City ofShoreline v. McLemore, No. 95707-0

Jury Instructions: Criminal 120.02, at 519(4th ed. 2016). McLemore

was convicted.


       McLemore appealed, first to the superior court, then to the Court of

Appeals, and finally here. We granted review. City ofShoreline v.

McLemore, 191 Wn.2d 1001 (2018).

                                       Analysis


       We stress that we are not asked to determine whether the officers'


forced entry in McLemore's home was lawful. McLemore, wisely, does not

challenge the trial court's conclusion that the officers were exercising their

community caretaking function at the time. Based on this record, the

officers had the lawful power to enter McLemore's home to assess whether

domestic violence had occurred and to take appropriate action if it had. See

Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 208-19, 193 P.3d 128

(2008)(plurality opinion)(surveying Washington's public policy of

combating domestic violence); ch. 10.99 RCW (establishing that domestic

violence is a serious crime and setting forth minimum standards for official

responses).^ Analogously, officers have the statutory authority to break into


^ The dissent states that "everyone, including McLemore, agrees that the officers
responding to the domestic violence call had the constitutional authority to demand entry
pursuant to the community caretaking exception to the warrant requirement" and that
"McLemore did have a duty to comply with lawful police orders to open the door."
Dissent at I, 8. We respectfully disagree with this characterization of the case. We agree
that the officers had the constitutional authority to enter the home pursuant to the
City ofShoreline v. McLemore, No. 95707-0

a home to make an arrest "if, after notice of[their] office and purpose,[they]

be refused admittance." RCW 10.31.040. It is undisputed that the officers

here responded appropriately and lawfully to a potential domestic violence

situation in which both Lisa and the child reasonably appeared in immediate

danger.

       But McLemore was not charged with a crime of domestic violence.

Instead, he was charged with violating RCW 9A.76.020(1), which provides

in relevant part that "[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."

In effect, McLemore contends that this statute cannot be constitutionally

applied to his inaction. "We review such constitutional challenges de novo.

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." E.J.J., 183 Wn.2dat501 (citation

omitted){oXimg State v. Abrams, 163 Wn.2d 111, 282, 178 P.3d 1021

(2008)); U.S. Const, amend. I.

       This court has long "noted that [obstruction] statutes can 'result in

disturbing intrusions into an individual's right to privacy and can implicate

community caretaking exception to the warrant requirement. We do not agree that
McLemore had a duty to comply with the police's demand to open the door.
City ofShoreline v. McLemore, No. 95707-0

other rights specifically enumerated in the Bill of Rights.'" State v.

Williams, 171 Wn.2d 474, 481, 251 P.3d 877(2011)(quoting State v. White,

97 Wn.2d 92, 97, 640 P.2d 1061 (1982)). "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." E.J.J., 183 Wn.2d at

501-02 (citing Williams, 171 Wn.2d at 485). We narrowly construe the

obstruction statute even when the parties are not directly raising a

constitutional challenge. Williams, 171 Wn.2d at Ml-1%.

      We use this narrow construction for two reasons. First, we are

required to interpret statutes as constitutional, if possible, and our narrowing

construction accomplishes this task. See In re Pers. Restraint ofMatteson,

142 Wn.2d 298, 307, 12 P.3d 585 (2000){(yioting Addleman v. Bd. of

Prison Terms & Paroles, 107 Wn.2d 503, 510, 730 P.2d 1327 (1986)). We

also limit the scope of this statute to avoid chilling the exercise of

constitutional rights. See State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571

(1984)(plurality opinion)(citing State v. Frampton, 95 Wn.2d 469,627 P.2d

922(1981)); see also E.J.J., 183 Wn.2d at 501-02.
City ofShoreline v. McLemore, No. 95707-0

      Criminalizing the refusal to open one's own door to a warrantless

entry would be enormously chilling and inconsistent with our deeply held

constitutional values. As the United States Supreme Court observed:

            From earliest days, the common law drastically limited the
      authority of law officers to break the door of a house to effect an
      arrest. Such action invades the precious interest of privacy summed
      up in the ancient adage that a man's house is his castle. As early as the
      13th Yearbook of Edward IV (1461-1483), at folio 9, there is a
      recorded holding that it was unlawful for the sheriff to break the doors
      of a man's house to arrest him in a civil suit in debt or trespass, for the
      arrest was then only for the private interest of a party. Remarks
      attributed to William Pitt, Earl of Chatham, on the occasion of debate
      in Parliament on the searches incident to the enforcement of an excise
      on cider, eloquently expressed the principle:

            "The poorest man may in his cottage bid defiance to all the
            forces of the Crown. It may be frail; its roof may shake; the
            wind may blow through it; the storm may enter; the rain may
            enter; but the King of England cannot enter—all his force dares
             not cross the threshold of the ruined tenement!"


MUler V. United States, 357 U.S. 301, 306-07, 78 S. Ct. 1190, 2 L. Ed. 2d

1332(1958)(footnotes omitted)(quoting The Oxford Dictionary of

Quotations 379(2d ed. 1953)). Even under the more limited protections

afforded by the Fourth Amendment than our own constitution,"[w]hen law

enforcement officers who are not armed with a warrant knock on a door,

they do no more than any private citizen might do. And whether the person

who knocks on the door and requests the opportunity to speak is a police

officer or a private citizen, the occupant has no obligation to open the door
City ofShoreline v. McLemore, No. 95707-0

or to speak." Kentucky v. King, 563 U.S. 452, 469-70, 131 S. Ct. 1849, 179

L. Ed. 2d 865 (2011){ciXmg Florida v. Royer, 460 U.S. 491, 497-98, 103 S.

Ct. 1319, 75 L. Ed. 2d 229(1983)(plurality opinion)); U.S. Const, amend.

IV; see also United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir.

1978)(holding the right to refuse a warrantless entry is not a crime or

evidence of a crime (citing Camara v. Mun. Court, 387 U.S. 523, 528-29, 87

S. Ct. 1727, 18 L. Ed. 2d 930 (1967); District ofColumbia v. Little, 339 U.S.

1, 7, 70 S. Ct. 468, 94 L. Ed. 599 (1950))). Similarly, our Court of Appeals

found the refusal to allow an officer into a home without a warrant was not


sufficient to sustain an obstruction conviction. State v. Bessette, 105 Wn.

App. 793, 799, 21 P.3d 318 (2001). The officer had been pursuing a

juvenile who was spotted holding a beer bottle. Id.

       Under the limited construction ofthe statute required by our

constitution, a defendant's conduct that amounts to passive delay will not

sustain an obstruction charge.^ As we ruled recently in a case where a

juvenile defendant refused to retreat into his home while police were

arresting his sister in the front yard:




^ The dissent claims that "refusal to obey lawful orders oflaw enforcement has always
been deemed sufficient conduct to support an obstruction conviction." Dissent at 11. We
have never so held, and, under our limiting construction of the obstruction statute, it
cannot be.



                                          10
City ofShoreline v. McLemore, No. 95707-0

       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 consistent[] with our
       Constitution abridge those freedoms to obviate slight inconveniences
       or annoyances."

E.J.J., 183 Wn.2d at 506 (quoting Giboney v. Empire Storage & Ice Co., 336

U.S. 490, 501-02, 69 S. Ct. 684,93 L. Ed. 834 (1949)). Lack of cooperation

does not become obstruction ofjustice merely because it causes the police

delay. "As a general proposition, there is no obligation to cooperate with the

police." State v. D.E.D., 200 Wn. App. 484, 494, 402 P.3d 851 (2017)

(citing State v. Budik, 173 Wn.2d 727, 272 P.3d 816 (2012)). "The duty

imposed by the obstructing statute is not to hinder or delay the police

investigation; there is no duty to cooperate." Id. at 495 (citing State v.

Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985))."^ While cooperation with

the police might have been wise, the failure to do so was not criminal under

these circumstances.


       The city analogizes this to cases where officers had a waiTant or other

court order. But the officers here did not have a warrant or other court order.


No impartial magistrate authorized the intrusion. These cases are not helpful


 Indeed, the jury's question during deliberation,"Does a person have the legal obligation
to follow the police instructions, in this case?" touches on this vital principle. CP at 43.
We do not fault the judge for not answering it during deliberations. But this case does
turn on when a person has a legal obligation to follow an officer's directions.


                                             11
City ofShoreline v. McLemore, No. 95707-0

to the city. See, e.g., State v. Miller, 74 Wn. App. 334, 873 P.3d 1197

(1994). The city also analogizes to cases where a defendant actively resisted

officers' waiTantless entry. In State v. Line, the defendant physically

struggled with officers, ripping their clothing. 121 Haw. 74, 81, 214 P.3d

613 (2009). In Dolson v. United States, the court stressed that "one has a

Fourth Amendment right to deny police officers and other government

officials a warrantless entry into one's home, and thus one's assertion of this

right cannot serve as the basis for a criminal conviction or evidence of a

crime." 948 A.2d 1193, 1201 (D.C. 2008)(citing Camara, 387 U.S. at 540;

Little, 339 U.S. at 7; Prescott, 581 F.2d at 1350-51). The court declined to

extend that principle to locking and holding a gate closed against an officer

in pursuit. Id. at 1202.^ There was no evidence here that McLemore locked

the door to exclude officers, held it closed, or physically resisted. These

cases are not helpful to the city either.

       In contrast, in the vast majority of cases called to our attention, courts

have held that there is no obligation to open a home to an officer's

warrantless demand for entry. The city of Columbus, for example.


^ This, of course, is what distinguishes Dolson's conduct from McLemore's. Dolson shut
his gate, locked it, and held it shut to keep out the police. Dolson, 948 A.2d at 1197.
McLemore refused to open an already-locked door. Because of Dolson's active
resistance, he was not entitled to a passive resistance instruction. Id. at 1201. McLemore
did not resist, he simply did not open the door. But see dissent at 16 (treating Dolson's
active resistance as analogous).


                                           12
City ofShoreline v. McLemore, No. 95707-0

prosecuted a man who refused to open the door to allow officers responding

to a potential domestic violence call to enter his home. City ofColumbus v.

Michel, 55 Ohio App. 2d 46,47-48, 378 N.E.2d 1077(1978). Officers

spoke with the person who made the call, saw broken glass, knocked for 7 to

10 minutes, and told the occupants to either let them in or have their door

broken down. Id. at 46-47. The court noted that the officers were "justified

in breaking open the door of the apartment to determine whether anyone was

injured in the apartment." Id. at 48. But the "defendant's failure to open the

door to the apartment is not made a crime" under the ordinance. Id.\ see also

Beckom v. State, 286 Ga. App. 38, 41,648 S.E.2d 656(2007)(refusing to

open the door or answer the phone,"without more, does not constitute

obstruction ofthe police, eveii if it is the police doing the knocking and

ringing"); State v. Berlow, 284 N.J. Super. 356, 364,665 A.2d 404(Law

Div. 1995)(purpose of both the Fourth Amendment and the parallel

provision of the New Jersey Constitution "is to stop governmental intrusion

at the door. One cannot be penalized for passively asserting that right").

Recently, the New Jersey Supreme Court, on almost identical facts,

unanimously held failure to act was not obstruction. State v. Fede,      A.3d

_,2019 WL 1118751 (Mar. 12, 2019).




                                      13
City ofShoreline v. McLemore, No. 95707-0

      The one exception to these cases brought to our attention by the city is

Steen, 164 Wn. App. 789. Over a vigorous dissent, Steen held that the

failure to open the door and leave a travel trailer when commanded to by an

officer exercising community caretaking functions can constitute

obstruction. Id. at 800.


      But the Steen court relied heavily on case law that involved motor

vehicles, not homes. See id. at 800-02 (discussing State v. Contreras, 92 Wn.

App. 307, 966 P.2d 915 (1998)). In Contreras, police responded to a report

of a possible vehicle prowl and found Contreras sitting in the car. Contreras,

who seemed '"out of it,'" did not raise his hands, did not exit the vehicle,

and gave only a first name. 92 Wn. App. at 309-10. Contreras was arrested

for (though not charged with) obstruction of a law enforcement officer. Id.

at 309. Contreras argued there was insufficient grounds for the arrest

because he merely refused to speak to the officer. The court noted that mere

refusal to talk to an officer is insufficient grounds to support an arrest for

obstruction. But "Contreras did more than merely refuse to talk. He also

disobeyed the officer's orders to put his hands up in view of[the officer], to

exit the car, to keep his hands on top ofthe car, and to provide his name."

Id. at 316.




                                        14
City ofShoreline v. McLemore, No. 95707-0

      Not surprisingly, Contreras itself also relied largely on cases

involving motor vehicles. See Contreras, 92 Wn. App. at 316-17 (citing

State V. Hudson, 56 Wn. App. 490, 497-98, 784 P.2d 533 (1990); State v.

Little, 116 Wn.2d 488, 497, 806 P.2d 749(1991)(plurality opinion); State v.

Mendez, 88 Wn. App. 785, 792-93, 947 P.2d 256 (1997), rev'd, 137 Wn.2d

208, 970 P.2d 722(1999); City ofSunnyside v. Wendt, 51 Wn. App. 846,

851-52, 755 P.2d 847(1988)). Hudson, Mendez, and Wendt all implicated

statutes that require drivers to cooperate with law enforcement. Little was

brought under a former version ofthe obstruction statute that was

significantly revised after being repeatedly held unconstitutional. See S.B.

Rep. on S.B. 6138, 53d Leg., Reg. Sess.(Wash. 1994); White, 97 Wn.2d at

103 (describing the previous version of the statute as "flagrantly

unconstitutional"). Washington law imposes on drivers and witnesses to

traffic accidents a duty to cooperate with officers in many circumstances.

E.g., RCW 46.61.020,.021. While Washington law vests officers with the

statutory authority to break into a house under certain circumstances, see,

e.g., RCW 10.31.040, there is no law requiring people to open their own

doors to officers seeking warrantless entry.

      Location matters. A home is entitled to constitutional protections that

a moving vehicle is not. See State v. Ferrier, 136 Wn.2d 103, 112, 960 P.2d



                                      15
City ofShoreline v. McLemore, No. 95707-0

927(1998). "'[T]he closer officers come to intrusion into a dwelling, the

greater the constitutional protection.'" Id. (internal quotation marks omitted)

(quoting Young, 123 Wn.2d at 185). To the extent Steen suggests it is

obstruction to not open the door to a home in response to a warrantless

knock, it is inconsistent with Washington law and is overruled. See

Williams, 171 Wn.2d at 485; White, 97 Wn.2d at 97.

       Under the limited construction we are required to give the obstruction

statute to render it constitutional, the city presented insufficient evidence to

sustain this conviction. Taken in the light most favorable to the city,

McLemore refused to open the door, loudly insisted he had no obligation to

do so, and told Lisa to tell the officers she was okay. None ofthis is

punishable "conduct" under our limiting construction of the obstruction

statute. Further, our review of the record leaves us with an abiding concern

the jury could have convicted on speech alone. See E.J.J., 183 Wn.2d at 501

(citing Abrams, 163 Wn.2d at 282). Much of the evidence focused on what

McLemore and the officers shouted at one another. There was no evidence


presented that McLemore closed his door to prevent the officers' entry or

prevented Lisa from opening it. Accordingly, we reverse.®


® Given our disposition, we do not reach the remaining arguments. We note in passing
that it is questionable whether a defendant can appeal the denial of a Knapstad motion
after the case has gone to trial. State v. Zakel, 61 Wn. App. 805, 811 n.3, 812 P.2d 512


                                            16
City ofShoreline v. McLemore, No. 95707-0

                                     Conclusion


        We hold the city presented insufficient evidence to sustain

McLemore's conviction and remand to the trial court for further proceedings

consistent with this opinion.




(1991)(declining to review a denial of a Knapstad motion after trial); State v. Knapstad,
107 Wn.2d 346, 729 P.2d 48 (1986); CrR 8.3(c)(3)("A decision denying a motion to
dismiss under this rule is not subject to appeal under RAP 2.2.").


                                            17
City ofShoreline v. McLemore, No. 95707-0




                                            /




WE CONCUR:




                                  18
City ofShoreline v. McLemore (Solomon Dion)
(Stephens, J., dissenting)




                                    No. 95707-0




      STEPHENS, J. (dissenting)—^In asking this court to overturn his conviction,

Solomon McLemore appeals broadly to privacy rights, free speech rights, and the

fact that individuals owe no duty to assist law enforcement. These appeals obscure

the fact that everyone, including McLemore, agrees the officers responding to the

domestic violence call had the constitutional authority to demand entry pursuant to

the community caretaking exception to the warrant requirement. And, settled

precedent makes clear that refusing to obey lawful commands to take a specific

action is conduct sufficient to support an obstruction conviction. I disagree with the

lead opinion that McLemore's conviction rests "mostly" on speech and involves

only passive "inaction" while inside his home. Lead opinion at 2, 7, 15-16.

      I would continue our long tradition ofholding that individuals cannot willfully

disobey law enforcement orders without facing legal consequences. Though no one
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




owes an affirmative obligation to assist the police, obstruction in violation ofRCW

9A.76.020 involves more than the mere refusal to assist. On the night in question,

McLemore's right to privacy in his home yielded to the officers' authority to demand

entry in order to verify the safety ofthe occupants inside. His obstruction conviction

rests not on pure speech or mere inaction but on his willful conduct that hindered,

delayed, or obstructed law enforcement in the discharge of their official duties. I

would affirm the Court of Appeals and uphold McLemore's conviction.

                                    ANALYSIS


       This case arises in the context of officers responding to a late-night domestic

disturbance call.   Upon arriving outside McLemore's building, officers heard

shouting and then the sound of glass breaking. When they loudly knocked on the

door, all went silent. Clerk's Papers(CP)at 304,324,362,365. Despite being given

several explanations as to why officers were at his door and several chances to

comply, McLemore refused to open the door to allow officers to verify the safety of

McLemore's girlfriend, Lisa,^ and the couple's child. Deputy Ben Emmons

testified:


      [I gave vjery basic commands, clear and concise. This is Shoreline Police
      Department, please open the door. Shoreline Police Department, come and

       ^ Consistent with the lead opinion, and to avoid subjecting her to unwanted
publicity, I refer to McLemore's girlfriend solely by her first name. No disrespect is
intended.


                                         -2-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




       talk to us. Shoreline Police Department, let me see your face. Shoreline
       Police Department, call 911. I want to give as many options as possible. I
       know some people are antsy about contacting the police face to face so I took
       that into account. If they wanted to call 911 that was fine. If they want to
       peek over the balcony that was fine too. 1just wanted to establish some kind
       of back and forth and 1 was getting none.

CP at 364-65. When officers finally did get a response, they once again clearly

explained that their intention was to verify the safety of all occupants in the home:

       So as we continued kind of in this repetitive loop of conversation, at some
       point a female comes to the door and he said tell them you're okay. We had
       been telling him we need to make sure that everyone is okay. We need to
       know that everyone is okay because of what is going on here. So the female
       at some point comes to the door and he says, tell them you're okay. The
       female said I'm okay. Aft] this point they both said something like we're
       scared or something ofthat nature. But we tell them, we can'tjust take your
       word for it. You telling her to tell us you're okay isn't enough for us to verify
       that you're okay. He could be forcing you to say this. We have no idea.
       You're behind a door and we have no idea what's going on. We need to
       investigate.

CP at 330-31 (Test, of Deputy Jeremy Dallon).^ The record continues to detail

repeated instances where the officers make clear that they are giving a lawful order


       ^ The lead opinion downplays the fact that McLemore told Lisa how to respond,see
lead opinion at 4 ("At McLemore's insistence, Lisa confirmed that she was fine and that
she also wanted the officers to leave."), ultimately concluding there is "no evidence" he
did anything to prevent her from opening the door. Id. at 15-16. The testimony and a
recording of the incident support a different conclusion. Deputy Dallon testified that Lisa
"sounded like she had been crying. . . . [l]t didn't sound like a calm, normal individual."
CP at 331. He explained, "[McLemore] saying tell them you're okay seemed very
coercive"; officers "have the legal obligation to investigate to make sure that someone who
needs help isn't being prevented from getting help beeause of various reasons." Id. On
eross-examination, McLemore grudgingly acknowledged that he told Lisa she needed to
talk to the police and she needed to act mad. CP at 440. He also told her that ifshe opened
the door and went outside, he was going to jail. CP at 441. Given this evidence, even if

                                             -3-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




to open the door so they can verify the safety ofthe occupants inside. See CP at 302,

304-05, 314-15, 324-31, 361-80.         McLemore acknowledged this fact in his

testimony:

      They said we're coming in. We need to eome in. We need to make sure
      everybody is okay. And I asked them ail the relevant questions as to why—
      legal entry. Do you have anything to show me that shows me you can come
      in?


            . . . They tell me they don't have to. They don't need to show me
      anything to get in. And then I tell them, well then in that case you need to
      go away.


CP at 414. McLemore acknowledged that the officers even gave him the option to

call 911 to verify that they were the police. CP at 438;see also CP at 329("You can

call the police, 911. They'll tell you that we're the police, let us in.") (Test, of

Deputy Dallon).

      Though the lead opinion describes the issue in this case as whether an

individual has the duty to assist a warrantless search or seizure, the officers made no

demand to search the home.          CP at 294-381. The record makes clear that the

officers wanted to fulfill their statutory duty to verify Lisa's safety as part of their

community caretaking responsibility.^


McLemore's own refusal to open the door might be characterized as mere "inaction"—a
dubious characterization under our case law—evidence that he directed Lisa's response to
the officers' commands plainly supports the jury's finding of obstruction.
       ^ RCW 10.99.030 imposes specific requirements on law enforcement when
responding to a domestic violence report. For example, officers are required to "take a

                                          -4-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




        McLemore's conduct falls squarely within the ambit ofthe obstruction statute,

and his conviction is fully consistent with constitutional guaranties of privacy and

jhee speech. Because there is no constitutional infirmity in McLemore's conviction,

I believe our judicial role requires us to apply the statute the legislature has seen fit

to adopt and the executive branch has seen fit to enforce, and to respect the jury's

verdict. To explain why, I first address the statute, RCW 9A.76.020, and then

consider the privacy and free speech rights asserted to excuse McLemore's violation

ofthe statute.


   /.      Sufficient Evidence Supported the Jury's Finding That McLemore
           Committed Obstruction under RCW 9A.76.020


        The statute under which McLemore was convicted provides, "A person is

guilty ofobstructing a law enforcement officer ifthe person willfully hinders, delays,

or obstructs any law enforcement officer in the discharge ofhis or her official powers

or duties." RCW 9A.76.020(1). It is undisputed that the officers responding to the

911 call were discharging their official powers or duties. Mot. for Discr. Review at




complete offense report including the officer's disposition ofthe case" and "advise victims
of all reasonable means to prevent further abuse, including advising each person of the
availability of a shelter or other services in the community, and giving each person
immediate notice of the legal rights and remedies available." RCW 10.99.030(6)(b)-(7).
The responding officers testified that it would have been difficult to fulfill their statutory
duties in this instance without a visual verification ofLisa's safety and the ability to speak
with her separate from McLemore. CP at 330-31, 363, 371.

                                             -5-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




3; lead opinion at 6. Absent a constitutional privilege, McLemore had a statutory

duty not to willfully hinder, delay, or obstruct law enforcement.

      The lead opinion frames this case in terms of a "duty to cooperate" with law

enforcement and invokes the general rule that no such duty exists. See lead opinion

at 10-11. In so doing, it characterizes McLemore's conduct as involving only

"passive delay" and observes that behavior causing minor delay or inconvenience

does not amount to obstruction. Id. at 10 (quoting State v. E.J.J., 183 Wn.2d 497,

506,354 P.3d 815(2015)). I believe this misstates both the facts ofthis case and the

valid reach of the obstruction statute. While individuals interacting with the police

owe no affirmative duty to cooperate, it is well recognized they may not engage in

conduct that interferes in specific ways with law enforcement officers' discharge of

their powers or duties. See State v. D.E.D., 200 Wn. App. 484, 494-95, 402 P.3d

851 (2017) (recognizing valid reach of obstruction statute despite no general

obligation to cooperate with a police investigation); State v. Steen, 164 Wn. App.

789, 802 n.8, 265 P.3d 901 (2011) (recognizing obstruction statute does not

criminalize a "citizen's mere refusal to assist police officers performing their

community caretaking duties"). Hindering or causing material delay in lawful police

efforts is punishable as obstruction. See D.E.D., 200 Wn. App. at 495 (describing

examples of obstruction: interfering in the arrest of another, refusing to obey


                                         -6-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




commands designed to control the scene, and failing to obey commands to exit a car

and keep hands in sight).

       In D.E.D.,the Court of Appeals overturned an obstruction conviction because

the charged conduct involved only "[pjassive resistance" to an unlawful arrest. 200

Wn. App. at 496. Central to the reasoning in D.E.D. was the fact that a separate

resisting arrest statute (RCW 9A.76.040(1)) imposed a duty not to resist only in

situations of a lawful arrest and the defendant's arrest was plainly unlawful. Id.

Under the obstruction statute, the court held that D.E.D. did not "hinder or obstruct

the officer since he had no obligation to cooperate with the officer." Id.'^ The court

cautioned against extending its narrow holding beyond the context of "[pjassive

resistance consistent with the lack of a duty to cooperate." Id.




       ^ This is not to say that individuals may violate unlawful police commands without
legal consequences. The court in D.E.D. surveyed precedent recognizing that a person
"cannot respond to police illegality by performing a criminal act in retum." 200 Wn. App.
at 492; see also State v. Holeman, 103 Wn.2d 426,693 P.2d 89(1985)(illegality of arrest
did notjustify hindering officers). The main rationale for this rule is public safety: the right
to be free from illegal police conduct "can be protected and vindicated through legal
processes, whereas loss of life or serious physical injury cannot be repaired in the
courtroom." State v. Westlund, 13 Wn. App.460,467,536 P.2d20(1975);see also United
States V. Pryor, 32 F.3d 1192, 1195 (7th Cir. 1994) (stating the "indignity and
inconvenience" of an improper arrest is less serious than injuries "engendered by
encouraging suspects to make their own snap judgments about the legality of official
demands"); State v. Hatton, 116 Ariz. 142,147-48,568 P.2d 1040(1977)("Ifresistance to
an arrest or a search made under the color of law is allowed, violence is not only invited
but can be expected.").

                                              -7-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




      Unlike the juvenile in D.E.D., McLemore did have the duty to comply with

lawful police orders to open the door and allow officers to verify Lisa's safety.

Describing his refusal to open the door in this context as akin to D.E.D.'s "passive

resistance"   requires   ignoring    that     McLemore    testified   he   made     an

intentional—found to be willful—decision to disobey a direct, lawful order. I

recognize that it may be difficult in some situations to distinguish between an

affirmative duty to cooperate and a duty not to hinder or delay police, but this is not

one ofthem.


      Indeed, the facts of this case align with the cases the court in D.E.D. was

careful to distinguish. 200 Wn. App. at 495;see State v. Little, 116 Wn.2d 488,498,

806 P.2d 749(1991)(plurality opinion)(flight from officers and refusal to stop when

ordered to do so constituted obstruction of a public servant); Steen, 164 Wn. App. at

802 (refusal to open trailer door and exit with hands up held punishable under the

obstruction statute); State v. Contreras, 92 Wn. App. 307, 316-17, 966 P.2d 915

(1998)(refusal to comply with orders to keep hands in view, exit the vehicle, and

keep hands on top of the car supported obstruction conviction). The lead opinion

recognizes the affinity between this case and these prior authorities, and its only

response is to overrule Steen and to distinguish any case involving a car or a prior




                                            -8-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




version of the obstruction statute. Lead opinion at 13-14. This approach does not

withstand scrutiny.

      The lead opinion's dismissal of Steen appears to rest solely on the fact that

Steen "relied heavily on case law that involved motor vehicles, not homes." Id. at

13 (citing Contreras,92 Wn. App. 307). This undeveloped analysis misapprehends

the key distinction in Washington law that is explained in Steen—^between the duty

to follow lawful orders given by law enforcement as opposed to no duty to assist

with an unlawful arrest. Compare Steen, 164 Wn. App. at 801(duty to obey officer's

commands), with D.E.D., 200 Wn. App. at 496 (no duty to cooperate in unlawful

arrest). Far from supporting an automobile/home distinction, Steen explicitly states

that it is following the precedent set in Contreras that "an individual's failure to

follow police officers' lawful orders authorized the individual's warrantless arrest

for obstruction." Steen, 164 Wn.App. at 801. Just as failure to comply with officer's

demands to keep his hands in view and exit the vehicle constituted conduct for the

purposes ofthe obstruction statute under Contreras,so too "refusal to open the trailer

door and exit the trailer with his hands up" constituted conduct in Steen sufficient to

support an obstruction conviction. Id. at 801-02. The decision in Steen is not an

outlier but instead a correct application of our precedent recognizing that failure to

obey a lawful order constitutes conduct sufficient for an obstruction conviction.


                                         -9-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




      That precedent includes this court's decisions in Williams and Little. See State

V. Williams, 171 Wn.2d 474, 251 P.3d 877 (2011); Little, 116 Wn.2d at 488. In

Williams, we traced the development of obstruction statutes and free speech

protections and narrowly construed RCW 9A.76.020 to require some conduct in

addition to making false statements in order to support a conviction. 171 Wn.2d at

481-82. In the course of our analysis, we cited Contreras ("refusal to put hands up

in view, to exit the car, and to keep hands on top of car as instructed and providing

a false name")as an example of what constitutes conduct as opposed to pure speech.

Id. at 483. In Little, which involved a Terry^ stop at an apartment complex, we

recognized that the willful refusal to obey direct police orders violated the

obstruction statute. 116 Wn.2d at 498 ("flight from the officers and refusal to stop

when ordered to do so constituted an obstruction of a public servant").

      The lead opinion attempts to minimize Little as having been decided under a

former version of the obstruction statute, which we later declared unconstitutional.

Lead opinion at 14. The aspect of the statute we invalidated, however, involved a

requirement that individuals stop and identify themselves when directed by law

enforcement. See State v. White, 97 Wn.2d 92, 96-97, 640 P.2d 1061 (1982). As

recently explained in E.J.J., the constitutional problem with the former statute was


        Terry V. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).

                                         -10-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




a provision that forced individuals to speak up and provide information to law

enforcement, i.e., it punished pure speech. 183 Wn.2d at 502. But, we recognized

that our decision in White "left intact subsection (3)[of former RCW 9A.76.020

(1975)], which made it a misdemeanor to '"knowingly hinder, delay, or obstruct'" a

public servant." Id. (quoting White, 97 Wn.2d at 96 (quoting former RCW

9A.76.020)). While the wording ofthe obstruction statute has evolved to recognize

that speech alone cannot support an obstruction conviction,see Williams, 171 Wn.2d

at 481-83, the refusal to obey lawful orders of law enforcement has always been

deemed sufficient conduct to support an obstruction conviction when it hinders,

delays, or obstructs the performance of official duties. See id.', Little, 116 Wn.2d at

498; Contreras, 92 Wn. App. at 317; Steen, 164 Wn. App. at 802. As a result, the

relevant question in this case is not whether McLemore was in his home or in a

vehicle, as the lead opinion would suggest. Instead,the relevant question, according

to precedent, is whether McLemore's refusal to obey lawful police orders hindered,

delayed, or obstructed the officers in the performance oftheir duties.

      Sufficient evidence exists to support McLemore's conviction for obstruction

based on his willful failure to obey a lawful police order to open the door(or to allow

Lisa to open the door)in order for officers to verify the safety ofthe occupants inside

the home. It cannot be denied that McLemore's actions had specific consequences


                                         -11-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




that both hindered and delayed the officers from performing their community

caretaking duties. Officers spent several minutes trying to convince McLemore or

Lisa to open the door; then, after hearing glass shattering, they attempted

unsuccessfully to break the door or lock with a pickax, before finally having the

Shoreline Fire Department arrive with breaching tools to help police forcibly enter

the home. All essential elements ofthe obstruction statute are supported by evidence

sufficient to sustain McLemore's conviction, and we should not disturb it unless

McLemore can demonstrate that his conduct was constitutionally privileged. As

discussed below, he has not demonstrated that his conviction violates either his

privacy rights or his free speech rights.

   II.      McLemore's Obstruction Conviction Does Not Offend His Privacy Rights
            under the Fourth Amendment and Article I, Section 7Because the Officers
            Acted with Authority ofLaw

         Article I, section 7 ofthe Washington Constitution provides that "[n]o person

shall be disturbed in his private affairs, or his home invaded, without authority of

law." While the gold standard for authority of law is a judicially issued warrant,

"there are a few '"jealously and carefully drawn" exceptions' to the warrant

requirement which 'provide for those cases where the societal costs of obtaining a

warrant, such as danger to law officers or the risk ofloss or destruction of evidence,

outweigh the reasons for prior recourse to a neutral magistrate.'" State v. Houser,


                                            -12-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




95 Wn.2d 143, 149, 622 P.2d 1218 (1980){c^oimg Arkansas v. Sanders, 442 U.S.

753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). Relevant here, the community

caretaking exception "allows for the limited invasion of constitutionally protected

privacy rights when it is necessary for police officers to render aid or assistance or

when making routine checks on health and safety." State v. Thompson, 151 Wn.2d

793, 802, 92 P.3d 228 (2004). Once the community caretaking exception applies,

police officers are allowed to conduct a noncriminal investigation,"so long as it is

necessary and strictly relevant to performance of the community caretaking

function." State v. Kinzy, 141 Wn.2d 373, 388, 5 P.3d 668(2000).

      Both McLemore and the lead opinion acknowledge that the officers

responding to the 911 call had authority of law under the community caretaking

warrant exception. See Mot. for Discr. Review 8-16; lead opinion at 6("McLemore,

wisely, does not challenge the trial court's conclusion that the officers were

exercising their community caretaking function at the time."). "Police officers

responding to a domestic violence report have a duty to ensure the present and

continued safety and well-being of the occupants" of a home. State v. Raines, 55

Wn. App. 459, 465, 778 P.2d 538 (1989), review denied, 113 Wn.2d 1036 (1990).

This duty is recognized in statute. RCW 10.99.030(5) provides that "[t]he primary

duty of peace officers, when responding to a domestic violence situation, is to


                                        -13-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




enforce the laws allegedly violated and to protect the complaining party." In

addition,the legislature has decided that it is not enough for a police officer to simply

observe the safety of a potential victim; even in cases where the officer has "not

exercised arrest powers or decided to initiate criminal proceedings by citation or

otherwise," officers are still required to "notify the victim of the victim's right to

initiate a criminal proceeding" and advise all parties ofthe importance ofpreserving

evidence. RCW 10.99.030(6)(a). Bearing these requirements in mind, the lead

opinion concedes that "[i]t is undisputed that the officers here responded

appropriately and lawfully to a potential domestic violence situation in which both

Lisa and the child reasonably appeared in immediate danger." Lead opinion at 7.

      One is left to wonder why, then, the lead opinion embarks on a detailed

privacy analysis under the Fourth Amendment of the United States and article I,

section 7. Its eloquent exposition of an individual's right to keep the government

from crossing the threshold to his home presupposes a different set offacts—officers

seeking a warrantless entry without constitutional authority oflaw. See lead opinion

at 8-10. Here, the officers correctly explained to McLemore that they did not need

a warrant to justify the limited intrusion they were seeking. The lead opinion seems

to suggest that McLemore's refusal to open the door would be viewed differently

had the officers held an actual warrant instead of authority of law under a warrant


                                          -14-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




exception. Lead opinion at 11. But, it does not explain why. Certainly, from the

perspective of a person refusing an officer's command to open a door, there is no

reason why the officer's assertion that he has a warrant would be any more

persuasive than his assertion that he has other authority of law. Moreover, neither

the chilling of privacy rights that the lead opinion is concerned about nor the

constitutional authority of law the officers possess varies between the warrant

scenario and the warrant exception scenario. The case law the lead opinion cites

speaks to a privacy right McLemore did not possess here—the right to refuse entry

to officers acting entirely without authority of law under either a warrant or a

recognized warrant exception.

      In attempting to create legal justification for McLemore's actions, the lead

opinion misreads Dolson v. United States, 948 A.2d 1193, 1201 (D.C. 2008). Lead

opinion at 11-12. While Dolson explains that individuals have a Fourth Amendment

right to deny police officers warrantless entry into a home,Dolson makes clear that

"[t]his right to deny entry to a warrantless officer is not unlimited, however, despite

the constitutional right involved." Dolson,948 A.2d at 1201. It provides no solace

in McLemore's case because, even absent authority oflaw under an exception to the

warrant requirement,Dolson concludes that "just as no one has the right to resist an

unlawful arrest, no one has the right to resist an unlawful entry to make an arrest."


                                         -15-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




Id. (footnote omitted).     This holding is consistent with the precedent noted

previously, recognizing that a person's recourse to unlawful police activity is

through a court action, not self-help.

      Simply stated, McLemore's conduct cannot be excused on the basis of a

nonexistent privacy right. His right to deny the officers entry to his home necessarily

yields to valid authority of law, under a warrant exception just as surely as under a

warrant. While the lead opinion is correct that McLemore's privacy in his home is

entitled to greater constitutional protection than a person's privacy in a vehicle or on

the street, the greater weight of the privacy interest has no bearing on the question

before us.    Heightened privacy protections in the home affect the court's

determination as to when authority of law exists to justify an intrusion. But

regardless of whether individuals are in a home, in a vehicle, or on the street, once

they receive a lawful order from law enforcement, they have a statutory duty to

comply. Because all parties agree that McLemore received a lawful order from the

officers, we cannot excuse his willful refusal to comply with this order simply

because it involved opening the door to his home.




                                          -16-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




   III.     McLemore's Obstruction Conviction Is Consistent with Free Speech
            Protections Because It Does Not Rest on "Speech Alone"

      Having established that McLemore had no privacy-based right to disobey

lawful police commands and that his refusal to open the door is punishable under the

obstruction statute, I turn to the remaining proposition: that McLemore's conviction

rests purely on speech rather than conduct. To avoid constitutional infirmities,

Washington law requires "conduct in addition to pure speech in order to establish

obstruction of an officer." Williams, 171 Wn.2d at 485-86; see also E.J.J., 183

Wn.2d at 502 ("a conviction for obstruction may not be based solely on an

individual's speech because the speech itself is constitutionally protected").

          Consistent with prior case law, McLemore's actions constituted punishable

conduct and his conviction did not rest on "speech alone." E.J.J., 183 Wn.2d at 503.

His conduct included willfully and repeatedly refusing to open the door, as well as

directing Lisa's response to the officers' commands,supporting a jury inference that

he prevented her from opening the door. Contrary to the lead opinion's view, it is

not enough to observe that"[mjuch ofthe evidence focused on what McLemore and

the officers shouted at one another." Lead opinion at 16. The cases that have

invalidated obstruction convictions on free speech grounds all involve speech alone

without sufficient evidence of accompanying conduct. In State v. Williamson, for




                                         -17-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




example, the defendant was charged with obstruction for falsely telling police his

name was '"Christopher Columbus.'" 84 Wn. App. 37, 45, 924 P.2d 960 (1996).

Similarly, in Williams,the defendant was convicted for giving a false name to police

during a traffic stop. 171 Wn.2d at 476. In EJJ,we reviewed our state and related

federal precedent imposing free speech limits on obstruction convictions and vacated

a juvenile adjudication where there was "insufficient evidence of conduct," 183

Wn.2d at 506, and where we could not "be certain that E.J.J.'s conviction was not

based on his speech alone,"Id. at 508. Here,in contrast, McLemore plainly engaged

in conduct in addition to speech, and there is no constitutional infirmity when both

speech and conduct are present. See Williams, 171 Wn.2d at 477-78; Little, 116

Wn.2d at 498; E.J.J., 183 Wn.2d at 502.

      Without doubt, our precedent confirms that obstruction statutes may be

constitutionally applied to punish individuals for willful conduct in refusing to obey

law enforcement directives when such conduct hinders, delays, or obstructs the

performance of official duties—even when speech is also involved.                 Such

punishment under the obstruction statute is wholly consistent with constitutional

constraints because it does not rest on "speech alone." E.J.J., 183 Wn.2d at 503;see

also Williams, 171 Wn.2d at 485("We hew to ourjurisprudential history ofrequiring

conduct in addition to pure speech in order to establish obstruction of an officer.").


                                        -18-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




As discussed above, the metaphysical distinction the lead opinion draws between

action and inaction is nowhere to be found in our precedent.            When a law

enforcement officer tells a person to "put your hands up" or "open the door," the

willful refusal to obey this command constitutes conduct—and such conduct violates

RCW 9A.76.020.


                                   CONCLUSION


      Thankfully, in this case there was no physical harm to any of the parties

involved. But recognizing the sort of"privilege to obstruct" that McLemore seeks

will encourage individuals to "make their own snap judgments about the legality of

official demands," Pryor, 32 F.3d at 1195, and "violence is not only invited but can

be expected." Hatton, 116 Ariz, at 148. There is no precedent that supports

recognizing this privilege and no constitutional privacy or free speech rights at issue

here that justify it. While reasonable minds might disagree about whether the

officers or the prosecutor were overzealous in charging McLemore with obstruction

or even whether the legislature should criminalize the refusal to obey police orders

to open one's door, courts must leave those decisions to other branches of

government. Our judicial role is constrained to invalidating arrest and prosecution

decisions only when they result in constitutional violations. Because McLemore's




                                         -19-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




conviction does not violate his constitutional rights, I would affirm the Court of

Appeals and uphold his conviction.




                                        -20-
City ofShoreline v. McLemore (Solomon Dion), 95707-0 (Stephens, J., dissenting)




                                        -21-
