City of Seattle v. Abercrombie

• Decision Date: 17 March 1997
• Docket Number: No. 37079-1-I,37079-1-I
• Citation: 85 Wn.App. 393,945 P.2d 1132
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Respondent, v. Edward Larry ABERCROMBIE, aka Larry Patterson, Appellant.

Page 393

85 Wn.App. 393

945 P.2d 1132

CITY OF SEATTLE, Respondent, v. Edward Larry ABERCROMBIE, aka Larry Patterson, Appellant.

No. 37079-1-I.

Court of Appeals of Washington Division 1.

March 17, 1997.

Review Denied Sept. 3, 1997.

Neil Martin Fox, Public Defender Association, Seattle, for Appellant

Margaret M. Boyle, City Attorney's Office, Seattle, for Respondent.

AGID, Judge.

Edward Abercrombie, also known as Larry Patterson, appeals his conviction for obstructing a public officer, arguing that the obstruction ordinance under which he was charged is unconstitutionally vague and overbroad and that his conviction was not supported by sufficient evidence. We conclude that the obstruction ordinance is neither void for vagueness nor overbroad, and affirm.

FACTS

At approximately 2 a.m. on April 30, 1993, Seattle Police officers involved in a narcotics surveillance operation near Fourth and Virginia in downtown Seattle were Abercrombie was charged with one count of menacing, in violation of SMC 12A.06.030(A)(1), and one count of obstructing a public officer, in violation of SMC 12A.16.010(A)(5). The case was tried to the bench. Although Abercrombie testified to a different version of the facts, the court found the officers' account more credible in part because of inconsistencies in Abercrombie's own testimony at trial and found him guilty of both menacing and obstructing an officer. Abercrombie appealed and the

investigating a suspicious narcotics incident observed by police that centered on a Toyota Celica parked in a nearby lot. Officer Gregory Hunter testified that he was instructed to join seven or eight other uniformed police officers in interviewing several individuals gathered around the Toyota to determine whether any of them had been involved in the incident. Police were also investigating a report that the car was stolen. Abercrombie was one of the people police interviewed at the scene. After he told officers he had no connection to the vehicle or the other people gathered around it, they told him he was free to go. But he chose to remain at the scene and began verbally abusing the officers as they continued interviewing other suspects. He screamed obscenities at the officers, threatened to kill them, raised his fists and waved his hands within inches of their faces. Officers repeatedly asked him to leave, but he refused to go away. After two officers escorted him to a spot about 50 feet away from where police were conducting the interviews, Abercrombie returned almost immediately and continued to verbally abuse and threaten to hit the officers. Officers testified that Abercrombie's belligerent and physically aggressive behavior made it difficult for them to focus on questioning those who remained at the scene and interfered with their investigation by forcing them to turn their attention from their investigation to deal with his behavior. After Abercrombie returned, officers told him that, if he did not leave, he would be arrested. When he still did not leave, police did as they had promised and arrested him superior court certified his appeal to this court, which accepted discretionary review.

DISCUSSION

Obstructing a Police Officer

Abercrombie first contends that his conviction for obstructing a public officer should be reversed because the ordinance under which he was convicted, SMC 12A.16.010(A)(5), is unconstitutionally overbroad and vague.

A. Overbreadth

A statute or ordinance is overbroad if it sweeps constitutionally protected free speech activities within its prohibitions and there is no way to sever its unconstitutional applications. ¹ State v. Talley, 122 Wash.2d 192, 210, 858 P.2d 217 (1993); City of Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989). Criminal statutes require particular scrutiny and may be facially invalid if they " 'make unlawful a substantial amount of constitutionally protected conduct ... even if they also have legitimate application.' " Huff, 111 Wash.2d at 925, 767 P.2d 572 (quoting City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, cert. denied, 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987)). A statute that regulates behavior and not pure speech "will not be overturned unless the overbreadth is 'both real and substantial in relation to the ordinance's plainly legitimate sweep.' " City of Seattle v. Eze, 111 Wash.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). Even if a statute is "substantially overbroad," we will uphold it if we are able to limit its construction in a way that brings it within constitutional bounds. State v. Halstien, 122 Wash.2d 109, 123, 857 P.2d 270 (1993).

SMC 12A.16.010(A)(5), under which Abercrombie was charged with obstructing an officer, provides:

A person is guilty of obstructing a public officer if, with knowledge that the person obstructed is a public officer, he or she: ...

5. Intentionally refuses to leave the scene of an investigation of a crime while an investigation is in progress after being requested to leave by a public officer.

On its face, SMC 12A.16.010(A)(5) regulates only conduct, not constitutionally protected speech. But Abercrombie still argues that the ordinance is overbroad because it criminalizes refusing to leave the scene of a police investigation when remaining at the scene is "necessary to challenge verbally and to observe police actions."

Although it is possible that a person who intentionally refuses to leave the scene of an investigation after being asked to do so by police officers may also be exercising his or her free speech rights, any impact of SMC 12A.16.010(A)(5) on those rights would be minimal. The ordinance does not limit what a person may say to police officers, nor does it limit a person's ability to observe what police officers are doing or to address the officers from a position outside the crime scene. Rather, a violation of the ordinance is triggered only by refusing to comply with an order to leave the scene of an investigation, not by exercising free speech rights. In other words, the ordinance punishes the refusal to leave, not the words spoken while remaining. It does not, as Abercrombie contends, limit anyone's ability to "challenge verbally" police officers conducting an investigation. It only limits the place from which someone may do so. Because its impact on an individual's right to free speech is minimal, we conclude that SMC 12A.16.010(A)(5) does not include "a substantial amount of constitutionally protected conduct" within its "plainly legitimate sweep." See Halstien, 122 Wash.2d at 123, 857 P.2d 270. For this reason, we reject Abercrombie's argument that SMC 12A.16.010(A)(5) is overbroad.

Moreover, to the extent the ordinance might interfere with an individual's right to free speech, the exercise of that right, even in public forums, is subject to valid time, place, and manner restrictions. So long as they " 'are content-neutral, ... narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication,' " these restrictions are valid. Huff, 111 Wash.2d at 926, 767 P.2d 572 (quoting United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706-07, 75 L.Ed.2d 736 (1983)). The ability of police officers to restrict public access to a crime scene serves a significant government interest both in facilitating a thorough investigation and assuring the safety of everyone at the scene, including bystanders, any suspects, and officers. Because SMC 12A.16.010(A)(5) is directed at the conduct of the individual interfering with an investigation, not the words being spoken, and only requires that a person leave the scene if asked, it is both content neutral and narrowly tailored.

B. Vagueness

Abercrombie also argues that SMC 12A.16.010(A)(5) is void for vagueness, both on its face and as applied to his particular conduct. The purposes of the vagueness doctrine are to ensure that citizens receive fair notice as to what conduct is proscribed and to prevent arbitrary law enforcement. Haley v. Medical Disciplinary Bd., 117 Wash.2d 720, 730-40, 818 P.2d 1062 (1991); Eze, 111 Wash.2d at 26, 759 P.2d 366. A statute is void for vagueness if it is so vague that persons " 'of common intelligence must necessarily guess at its meaning and differ as to its application'." Haley, 117 Wash.2d at 739, 818 P.2d 1062 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (19...