City of Seattle v. Patu

Decision Date10 September 2001
Docket NumberNo. 45284-3-I.,45284-3-I.
Citation30 P.3d 522,108 Wn App 364,108 Wash. App. 364
PartiesCITY OF SEATTLE, Respondent, v. Paul H. PATU, Appellant.
CourtWashington Court of Appeals

Neil Fox, Christine Jackson, King County Public Defender Ass'n, Seattle, for Appellant.

Richard Greene, Asst. City Attorney-Criminal Div., Seattle, for Respondent.


We cannot provide any relief to Paul Patu because he invited the constitutional error that occurred at his trial in Seattle Municipal Court. We granted discretionary review nevertheless, in order to clarify our decision in City of Seattle v. Abercrombie.1 We became aware of the need for clarification when Patu sought modification of our court commissioner's order denying discretionary review. Patu read a portion of our decision in Abercrombie one way, our commissioner read it another way, and neither of them read it as we had intended to write it. And so, once more, we address the elements of the crime of obstructing a public officer contained in Seattle's poorly drafted obstruction ordinance, SMC 12A.16.010(A)5. Those elements are: (1) that the defendant obstructs a public officer at the scene of an investigation of a crime while the investigation is in process; (2) that the defendant knows that the person obstructed is a public officer discharging his or her official powers and duties; (3) that the defendant intentionally refuses to leave the scene of the investigation while the investigation is in process after being requested to leave by a public officer. A "to convict" instruction that omits the element of actual obstruction relieves the government of its burden of proving that element beyond a reasonable doubt, and is thus constitutionally defective. But where the defendant himself invited the error by proposing the faulty instruction, an appellate court will not grant relief. Accordingly, we affirm Patu's conviction.


Paul Patu was in the vicinity of Othello park in the early morning hours with his friend J.T. Loveless. A large group of some 50 or 60 people had gathered at the park to socialize and drink alcohol. The park closed at 10 p.m. Signs announcing the closing hour and the prohibition of liquor in the park were clearly posted. Following a noise complaint, police arrived and ordered the group to disperse and to remove the automobiles that were blocking the roadway. Officer Myers saw Patu in the park carrying an open container of liquor. Officers Cason and Ellis arrived and saw Patu and Loveless walking away from an Oldsmobile. Loveless told Officer Cason that the car was disabled and asked if they could move it to the side of the roadway. As they were doing so, Officer Cason saw an open bottle of fortified wine on the front seat. He inquired about ownership of the car and the liquor. Loveless said the car was his; Patu said the liquor was his.

Upon request, Patu and Loveless provided their names and Officer Cason checked for outstanding warrants. He learned that there were multiple outstanding warrants for Loveless. Officer Cason informed Loveless that he was under arrest. Loveless fled, but was chased down by Officers Myers and Cason. Loveless struggled with these officers as they attempted to handcuff him with additional help from Officer Ellis. In the course of the struggle, Loveless reached for Officer Myers's gun holster. Loveless was very strong and managed to stand up despite the officers' attempts to keep him on the ground while they handcuffed him.

Patu rushed at the officers from behind, yelling and screaming obscenities at them, causing the officers considerable concern for their own safety as they struggled with Loveless. All three officers ordered Patu to "stay back" or "step away". Myers testified that he ordered Patu to stay back and to get to the other side of the street or be arrested. Patu testified that he heard the orders to step back, but he refused to withdraw, and continued to yell and scream obscenities. Officer Ellis held up his hand at Patu, telling him to stay back, and Patu tried to move around him to approach the other two officers who were still struggling with Loveless. Finally, two more officers arrived and restrained Patu while the remaining officers brought Loveless under control.

Patu was charged with two counts of obstructing a public officer under SMC 12A.15.010(A)1 (for physically interfering with an officer) and (A)(5) (for refusing to leave the scene of a crime investigation when told to do so by police). At trial, the City indicated its intention to introduce Patu's prior conviction for false reporting, for purposes of impeachment. Patu requested a limiting instruction, WPIC 5.05, instructing the jury that evidence that Patu had previously been convicted of a crime could be considered in deciding Patu's credibility and for no other purpose. The court denied this instruction. During Patu's redirect examination, Patu explained that this conviction was for using a "fake ID" when he was 19 years old to get into a night club. He also explained that many of his friends at the time had similarly used fake IDs.

At Patu's request, the court included the following "to convict" instruction (in relevant part) for the SMC 12A.16.010(A)5 charge:

To convict the defendant of the crime of obstructing a public officer, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on November 23, 1994, Paul H. Patu refused to leave the scene of an investigation of a crime while the investigation was in progress;
(2) That he intentionally refused to leave after being requested to leave by a public officer;
(3) That he knew an investigation was in progress at the time;
(4) That the public officer was discharging his/her official powers and duties;
(5) That the defendant knew the person making the request was a public officer discharging his/her official powers and duties;
(6) That this occurred in the City of Seattle.

Clerk's Papers at 105. The jury convicted Patu on both obstruction counts. This appeal followed.



Patu argues that SMC 12A.16.010(A)(5) is overbroad. We specifically considered and rejected this argument in City of Seattle v. Abercrombie, 85 Wash.App. 393, 945 P.2d 1132 (1997). Notwithstanding our holding in that case, Patu argues that the ordinance is overbroad because it "does not require that any actual interference with the police investigation occur[,]" Opening Brief of Appellant at 32-33, and because it is in tension with a purportedly similar ordinance held to be unconstitutional in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

SMC 12A.16.010(A)(5) states that a person is guilty of obstructing a public officer if, "with knowledge that the person obstructed is a public officer, he or she ... [i]ntentionally 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." (Emphasis ours). In Abercrombie, we stated that

[w]hen SMC 12A.16.010(A)(5) is read in its entirety, it becomes clear that there can be no violation of the ordinance without two other elements [in addition to intentionally refusing to leave the scene of an investigation of a crime]: the person who is asked to leave must know that the officer is a public official and act in a way that obstructs that officer.

85 Wash.App. at 400, 945 P.2d 1132. While SMC 12A.16.010(A)(5) is not the model of legislative clarity, this ordinance expressly requires that the public officer actually be obstructed before there can be a violation. If the public officer did not have to actually be obstructed, the first sentence in Part A of the ordinance would not refer to "the person obstructed." As this court stated in Applied Indus. Materials Corp. v. Melton, 74 Wash. App. 73, 78-79, 872 P.2d 87 (1994), "A legislative body is presumed not to have used superfluous words. Courts are bound to accord meaning, if possible, to every word in a statute." (Citations omitted). Actual obstruction and knowledge of the officer's role as a public official are elements required by the express language of Part A, which applies to all subsections, and which cannot be divorced from subsection 5. We reject Patu's overbreadth challenge of SMC 12A.16.010(A)(5).

Contrary to Patu's assertion, Hill does not require us to conclude that SMC 12A.16.010(A)(5) is unconstitutionally overbroad. Hill considered the constitutionality of City of Houston Ordinance § 34-11(a) (1984), which states that "[i]t shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest." 482 U.S. at 455, 107 S.Ct. 2502. After noting that the "assault" and "strike" language was preempted by the Texas Penal Code, the U.S. Supreme Court concluded that the language "unlawful for any person to... in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty" was overbroad because it "thereby prohibits verbal interruptions of police officers... [and] is not limited to fighting words nor even to obscene or opprobrious language [.]" Id. at 460-63, 107 S.Ct. 2502.

In contrast, SMC 12A.16.010(A)(5) does not suffer from the same defect of sweeping in protected speech that "in any manner" interrupts a police officer. Because SMC 12A.16.010(A)(5) requires actual obstruction of an investigation in progress, the ordinance does not give officers unfettered discretion to limit mere verbal challenges to police action. To "obstruct" is "to block up, stop up or close up ... place an obstacle in or fill with obstacles or impediments to passing ... to be or come in the way of ... hinder from passing, action, or operation [.]" Webster's 3rd New International Dictionary 1559 (1969). Moreover, we noted in Abercrombie that "[b]ecause SMC 12A.16.010(A)(5) is directed at the conduct...

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