City of Seattle v. Buford-Johnson

• Decision Date: 27 December 2021
• Docket Number: No. 81627-6-I
• Citation: City of Seattle v. Buford-Johnson, 501 P.3d 594 (Wash. App. 2021)
• Parties: The CITY OF SEATTLE, Respondent, v. Artemas D. BUFORD-JOHNSON, Petitioner.
• Court: Washington Court of Appeals

501 P.3d 594

The CITY OF SEATTLE, Respondent,

v.Artemas D. BUFORD-JOHNSON, Petitioner.

No. 81627-6-I

Court of Appeals of Washington, Division 1.

FILED December 27, 2021

Stewart Baker Moore, King County Dept. of Public Defense, NDD, 710 2nd Ave. Ste. 250, Seattle, WA, 98104-1765, for Petitioner.

Richard Edward Greene, Seattle City Attorney's Office Criminal, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Respondent.

PUBLISHED OPINION

Smith, J. ¶1 Freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom."Palko v. Connecticut, 302 U.S. 319, 327, 58 S. Ct. 149, 82 L. Ed. 288(1937)(overruled on other grounds byBenton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707(1969) ).

¶2 Almost ten years ago, Artemas Buford Johnson¹ was arrested after he drove past a Seattle Police Department officer and yelled "fuck the police" while pointing as if he had a gun.The City of Seattle charged Johnson with harassment and Johnson stipulated to the facts in the police officer's report.The municipal court found Johnson guilty, and on appeal, the superior court affirmed.Johnson petitioned for discretionary review in this court, contending that he did not make a true threat and that therefore, the First Amendment to the United States Constitution barred his conviction.We granted discretionary review and now conclude that Johnson's expressive conduct was protected by the First Amendment.Accordingly, we reverse.

FACTS

¶3 Around 9:45 PM on May 26, 2012, Seattle Police Officer Eric Zerr responded to a 911 call reporting a fight on Rainier Avenue South.²When Officer Zerr got near the location, he exited his vehicle and walked north on the street.He noticed a gold Ford Explorer with its headlights off driving north on the other side of the street.The Ford slowed as it approached him, and the "driver yelled ‘fuck the police’ as he looked at [Officer Zerr] and held his left hand next to the driver's door with an object or his finger pointed at [Officer Zerr] as if it was a firearm."Afraid that the driver might be pointing a firearm at him, Officer Zerr "quickly moved into the shadows and behind a telephone pole."The car then "sped off northbound" but shortly thereafter stopped at a red light.At Officer Zerr's request, approaching police officers stopped the car.Officer Zerr kept the car in his sight and saw that the driver kept his arm out of the car window until he was stopped.The officers searched the car and its occupants and arrested the driver, Johnson.The police report indicates that no firearms were found.At the precinct, Johnson stated that someone else in the car had yelled at the officer.

¶4 On May 27, 2012, the City of Seattle charged Johnson with one count of harassment.In February 2013, the City and Johnson entered an agreed order to continue the case.Under the agreed continuance, if Johnson complied with certain conditions for two years, the City would dismiss the charge.If Johnson failed to comply with the conditions, however, the court would determine his guilt based solely on the facts in the police report, which Johnson stipulated to.

¶5 Johnson later admitted that he had violated the terms of the agreed continuance.The Seattle Municipal Court reviewed the police report and found Johnson guilty of harassment on December 8, 2017.Johnson appealed to the King County Superior Court, and in January 2019, the court remanded for the municipal court to enter findings of fact and conclusions of law explaining its verdict.

¶6 On June 13, 2019, the municipal court again found Johnson to be guilty of harassment on the grounds that Johnson threatened to cause bodily injury or to substantially harm Officer Zerr and that Officer Zerr had reasonable fear that he was about to be shot.Johnson appealed to superior court again, and the superior court affirmed.Johnson then petitioned for discretionary review in this court, and we granted review.

ANALYSIS

¶7 Johnson contends that the court erred by affirming his conviction because the evidence does not establish that he made a true threat against Officer Zerr, that he knowingly communicated a threat, or that Officer Zerr was in objectively reasonable fear of bodily harm.While the evidence does establish that Officer Zerr was reasonably afraid, we agree with Johnson that the evidence does not establish that Johnson made a true threat or that he knowingly did so.

Standard of Review

¶8We review a trial court's conclusions of law de novo.State v. Frahm, 193 Wash.2d 590, 595, 444 P.3d 595(2019)."When reviewing a challenge to the sufficiency of evidence, we view the evidence in the light most favorable to the State and determine whether ‘any rational trier of fact could have found guilt beyond a reasonable doubt.’ "Frahm, 193 Wash.2d at 595, 444 P.3d 595(quotingState v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068(1992) )."A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068(1992).

¶9 However, the First Amendment right to free speech requires appellate courts to "be exceedingly cautious when assessing whether a statement falls within the ambit of a true threat" to avoid infringing on the right to free speech.State v. Kilburn, 151 Wash.2d 36, 49, 84 P.3d 1215(2004).Accordingly, we must conduct " ‘an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure the protected expression will not be inhibited.’ "Kilburn, 151 Wash.2d at 50, 84 P.3d 1215(quotingBose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505, 104 S. Ct. 1949, 80 L. Ed. 2d 502(1984) ).While we continue to defer to trial court findings on witness credibility and issues other than whether speech is constitutionally protected, we must independently review those " ‘crucial’ facts that necessarily involve the legal determination whether the speech is unprotected."Kilburn, 151 Wash.2d at 50, 52, 84 P.3d 1215.

Evidence of Harassment

¶10 Former Seattle Municipal Code(SMC) 12A.06.040(A)(2)(2012)³ provides that a person is guilty of harassment if they knowingly threaten:

a. To cause bodily injury immediately or in the future to the person threatened or to any other person, or

....

d. Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety, and

e. The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

¶11We first note that sufficient evidence supports the court's conclusion that Johnson's conduct placed Officer Zerr in objectively reasonable fear of bodily harm as required by former SMC 12A.06.040(A)(2)(e).Because this is a statutory question and does not "necessarily involve the legal determination whether the speech is [constitutionally] unprotected,"we view the facts in the light most favorable to the City rather than undertaking an independent review.Kilburn, 151 Wash.2d at 52, 84 P.3d 1215.The record establishes that Officer Zerr was out at 9:45 PM by himself, a car without headlights drove by, the driver yelled at him, and Officer Zerr thought he had seen an object that might be a firearm.Officer Zerr then "quickly moved into the shadows and behind a telephone pole, fearing the pointed object might be a firearm."Considering these circumstances, a reasonable fact finder could conclude that Johnson's conduct placed Officer Zerr in reasonable fear of bodily harm.

¶12 Next, we determine whether Johnson threatened Officer Zerr.A law such as this ordinance that "criminalizes pure speech ... must be interpreted with the commands of the First Amendment clearly in mind."Kilburn, 151 Wash.2d at 41, 84 P.3d 1215(internal quotation marks omitted)(quotingState v. Williams, 144 Wash.2d 197, 206-07, 26 P.3d 890(2001) )."The First Amendment generally prevents government from proscribing speech, ... or even expressive conduct, ... because of disapproval of the ideas expressed."R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305(1992).

¶13 To comply with these constitutional guarantees, the harassment ordinance "must be read as clearly prohibiting only ‘true threats,’ " which are not protected speech under the First Amendment because of the overriding state interest in protecting individuals from the fear of violence, preventing the disruption that this fear causes, and preventing the possible threatened violence from occurring.Kilburn, 151 Wash.2d at 43, 84 P.3d 1215(analyzing identical language in RCW 9A.46.020)(quotingWilliams, 144 Wash.2d at 208, 26 P.3d 890 ).We use an objective test to identify whether speech is a true threat: " ‘[a] true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm.’ "Williams, 144 Wash.2d at 207-08, 26 P.3d 890(second alteration in original)(internal quotation marks omitted)(quotingState v. Knowles, 91 Wash. App. 367, 373, 957 P.2d 797(1998) )."A true threat is a serious threat, not one said in jest, idle talk, or political argument."Kilburn, 151 Wash.2d at 43, 84 P.3d 1215."[T]he nature of a threat depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken."State v. C.G., 150 Wash.2d 604, 611, 80 P.3d 594(2003)."[I]t is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged...