City of Shoreline v. McLemore

• Decision Date: 18 April 2019
• Docket Number: No. 95707-0,95707-0
• Citation: 438 P.3d 1161 (Mem),193 Wash.2d 225
• Parties: CITY OF SHORELINE, Respondent, v. Solomon Dion MCLEMORE, Petitioner.
• Court: Washington Supreme Court

193 Wash.2d 225

438 P.3d 1161 (Mem)

CITY OF SHORELINE, Respondent,

v.Solomon Dion MCLEMORE, Petitioner.

No. 95707-0

Supreme Court of Washington.

Argued October 18, 2018

Filed April 18, 2019

As Amended April 19, 2019

David Christopher lannotti, Stewaid Macnichols Harmell Inc. PS, 655 W. Smith Street, Suite 210, Kent, WA 98032-4477, for Petitioner.

Carmen Marie Mcdonald, City Prosecutors Office, 17553 15th Avenue NE, Shoreline, WA 98155-3801, for Respondent.

Nancy Lynn Talner, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, Erin Irene Moody, Attorney at Law, P.O. Box 22673, Seattle, WA 98122-0673, Nicole Lea Beges, Attorney at Law, 9601 Steilacoom Blvd. SW, Building 25, Lakewood, WA 98498-7213, for Amicus Curiae (American Civil Liberties Union of Washington).

Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers)

Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place South, #610, Seattle, WA 98104-2626, for Amicus Curiae (Washington Defender Association).

González, J.¶ 1 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.

¶ 2 Our homes hold a special place in our constitutional jurisprudence. 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 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 Wash.2d 173, 185, 867 P.2d 593 (1994) (citation omitted) (quoting State v. Chrisman, 100 Wash.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, 867 P.2d 593. Our constitutions also rigorously protect speech, even obnoxious speech. State v. E.J.J., 183 Wash.2d 497, 501, 354 P.3d 815 (2015).

¶ 3 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,¹ 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 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

¶ 4 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,’ " " ‘I’m going to call the police,’ " and "something along the lines of ‘I’m reconsidering our relationship’." Clerk’s Papers (CP) at 149. The officers knocked 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 of the 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.

¶ 5 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 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.

¶ 6 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 RCW 9A.76.020. No other charges were filed.

¶ 7 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 of their residence." CP at 139. The judge denied the motion, concluding that the charges were sustainable under State v. Steen, 164 Wash.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 warrant.

¶ 8 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 of the 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.

¶ 9 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; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 120.02, at 519 (4th ed. 2016). McLemore was convicted.

¶ 10 McLemore appealed, first to the superior court, then to the Court of Appeals, and finally here. We granted review. City of Shoreline v. McLemore, 191 Wash.2d 1001, 422 P.3d 916 (2018).

ANALYSIS

¶ 11 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 Wash.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).² Analogously, officers have the statutory authority to break into 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.

¶ 12 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 Wash.2d at 501, 354 P.3d 815 (citation omitted) (citing State v. Abrams , 163 Wash.2d 277, 282, 178 P.3d 1021 (2008) ); U.S. CONST. amend. I.

¶ 13 This court has long "noted that [obstruction] statutes can ‘result in disturbing intrusions into an individual’s right to privacy and can implicate other rights specifically enumerated in the Bill of Rights.’ " State v. Williams, 171 Wash.2d 474, 481, 251 P.3d 877 (2011) (quoting State v. White, 97 Wash.2d 92, 97, 640 P.2d 1061 (1982) ). "To save the obstruction statute from being unconstitutionally...