State v. Johnson

Decision Date05 September 1972
Docket NumberNo. 1563--I,1563--I
Citation500 P.2d 788,7 Wn.App. 527
PartiesSTATE of Washington, Respondent, v. Leon C. JOHNSON et al., Appellants.
CourtWashington Court of Appeals

Koenigsberg, Brown, Sinsheimer, Stone & Meltzer, Ronald J. Meltzer, American Civil Liberties Union of Wash., Robert Czeisler, Seattle, for appellants.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty. and Eugene G. Olson, Chief Crim. Deputy Pros. Atty., Tacoma, with him on the briefs), for respondent.

HOROWITZ, Chief Judge.

The defendants' consolidated appeals are from convictions after jury trial for failure to disperse from the place of an 'unlawful meeting' after warning by a police officer so to do (RCW 9.27.070); and for participation in an 'unlawful assembly' (RCW 9.27.060).

The facts as the jury could have found them are these: The area involved is located southeast of Commencement Bay on the outskirts of Tacoma, Washington. It is a partially wooded area bounded on the northeast by the Puyallup River; on the northwest by the Burlington Northern railroad bridge and approaching tracks; on the southwest by railroad tracks, back of which is a commercial area; and on the southeast by the Milwaukee railroad bridge and approaching tracks. The Highway 99 bridge runs east and west above the area about half way between the Burlington Northern and Milwaukee bridges. There was an Indian encampment in the upstream or southeast portion of the area amount half way between the Highway 99 bridge and the Milwaukee railroad bridge. A levee adjoins the Puyallup River and runs parallel to it. The levee separated the river from the encampment.

The two incidents next described occurred in the general vicinity of the Indian encampment. The first so-called 'unlawful assembly' incident took place northwest of the encampment, beyond the Highway 99 bridge, at the point where the Burlington Northern bridge crosses the river. The second so-called 'unlawful assembly' incident occurred southeast of the encampment at the point where the Milwaukee bridge crosses the river.

Shortly before September 9, 1970 the Washington State Department of Fisheries requested police assistance in removing fishing nets believed to have been illegally placed in the Puyallup River by a group of Puyallup Indians. On the morning of September 9, a force of police officers commanded by Capt. Grady of the Tacoma Police Department, together with state fisheries and state game officers, went to the vicinity of the Indian encampment previously described for the purpose of removing one such net.

Those responsible for directing police operations in the area, including Capt. Grady and Lt. Henderson as well as their superior officers, determined on the basis of reports received from officers positioned about the area and from personal observations that there were persons in the vicinity of the camp and river who were armed, that the situation posed a serious threat to the safety of the fisheries officers attempting to remove the net, that this was an unlawful assembly, and that an order to disperse should be broadcast throughout the general area. Thus, before the officers deployed in the direction of the illegal net, Lt. Joyce of the Tacoma Police Department gave the following warning in the hearing of Indians and sympathizers assembled in the area:

Attention, this is Lt. Joyce of the Tacoma Police Department. This is an illegal gathering; you are ordered to lay down your weapons and to leave the area peaceably; anyone failing to do so will be placed under arrest.

The warning was broadcast about six times between 9:30 and 9:45 a.m. from a mobile speaker situated on the Highway 99 bridge. The warning was directed both in an upstream and downstream direction and was loud enough to be heard by those assembled in the area.

No one left and no one began to leave. The officers had begun to deploy. One group, led by Capt. Grady, proceeded downstream to help effect the removal of a net from the Burlington Northern bridge. The second group, led by Lt. Henderson, contained the area upstream from the Highway 99 bridge, including the Indian encampment.

As Capt. Grady's group came along the railroad leading to the west end of the Burlington Northern bridge, they were confronted by a crowd of people, some of them aiming rifles and pistols at the police. Defendants Johnson, Burrell and Sutherland, according to the State's evidence, were in the area of the Burlington Northern bridge and had been within earshot of the warning. Some one threw one or more molotov cocktails. When two fisheries officers set out in a small boat to remove the net from the bridge pilings, shots were fired toward them, apparently from under the Burlington Northern bridge. Tear gas was released. About 35 minutes after the dispersal warnings, the police officers began to arrest members of the assembled crowd. Between 10:15 and 10:45 a.m. they completed arresting 22 persons. The defendants were not included among those arrested. The defendants claimed, in testimony presented in their defense, they were not in the crowd or in the general vicinity of the crowd because they did not arrive until later that morning. In any event, when the arrests described had been completed, Capt. Grady and most of the police officers left with the persons arrested. However, three or four police officers were left behind with instructions to patrol the general area, allowing any persons in the area to leave but to let no one in.

Between 11 and 11:30 that same morning, Capt. Grady and other police officers returned to the area of the encampment in response to a report that a fire had been started on the Milwaukee bridge. When the police arrived, they saw people on the nearby levee and on the roadway. There was a great deal of noise and confusion. Capt. Grady was then immediately informed that a girl dressed in purple pants had set fire to the bridge. Of those in the crowd seen by Capt. Grady, about eight to ten persons were yelling such phrases as

'Burn, baby, burn.' Others were just watching the bridge fire from a distance. Capt. Grady concluded that the persons assembled constituted an unlawful assembly. Without further warning he ordered his police officers to arrest all persons present. The police did so with no difficulty, encircling the encampment area and moving in to confine all those in front of them into a small area. Defendants Johnson, Sutherland and Burrell were included among those thus arrested. At the time of their arrests, defendants Burrell and Sutherland were helping to film the occurrence. Neither had a press I.D. card to protect him against arrest.

Defendant Annis was not a part of the first group of persons ordered to disperse between 9:30 and 9:45 a.m. He was first seen at the second incident when he attempted to enter the area the police had encircled. Lt. Henderson informed him that the area was a place of unlawful assembly and asked him to leave. Defendant Annis did so after first stating that he was representing the American Civil Liberties Union. The lieutenant said it did not matter. Annis was next seen swimming in the Puyallup River near the Milwaukee bridge. Annis emerged from the river and began walking up the river bank in the direction of the Indian camp. Officer Anderson then intercepted him and took him to the camp, where he was placed under arrest as a member of an unlawful assembly.

Subsequently, the four defendants were charged with violating both RCW 9.27.070 and RCW 9.27.060. The unlawful assembly charge against defendant Annis under RCW 9.27.060 was dismissed by the court. The jury found defendants Johnson, Sutherland and Burrell guilty on both the 'failure to disperse' and 'unlawful assembly' counts and the defendant Annis guilty on the 'failure to disperse' count. Judgment was entered on the jury verdicts and the court denied the defendants' motion for new trial. Defendants appealed, the appeals being later consolidated for a hearing here.

Defendants first contend the court committed prejudicial error in granting the state's motion before trial to amend the information by adding the charge of unlawful assembly 1 to the then existing charge of failure to disperse after warning from the 'place of an unlawful meeting.' 2 Defendants argue the state was not diligent in adding the unlawful assembly count and the defendants were not prepared to defend against the additional count and could not seek the continuance suggested by the state because of defendants' problems with witnesses and the potential unavailability of an attorney for one of the defendants. We hold the court did not manifestly abuse his discretion in allowing the unlawful assembly count to be added.

RCW 9.27.060 and 9.27.070 are in a group of statutes dealing with disturbances, riot and unlawful assembly to protect the public peace. RCW 9.27.060, the unlawful assembly statute, requires proof of an intention to do a prohibited act. No such proof of intent is required under RCW 9.27.070, the failure to disperse statute. State v. Fisk, 79 Wash.2d 318, 485 P.2d 81 (1971), distinguishes the two statutes and as to the latter states:

The purpose of the statutory proscription is to provide a means whereby unlawful mob action may be peaceably averted.

79 wash.2d at 324, 485 P.2d at 85.

RCW 9.27.060 and 9.27.070 are taken from Laws of 1909, ch. 249, §§ 298 and 299, p. 981. They differ somewhat from their predecessor Washington statutes. Code of 1881, §§ 859--861; Laws of 1873, §§ 73--75, p. 197; Laws of 1854, §§ 65 and 66, p. 87. They are largely taken from the Minnesota and New York statutes. Rev.Laws of Minn., §§ 5016 and 5017 (1905); 3 Birdseye, Cumming & Gilbert's Consol. Laws of N.Y., §§ 2092--2094 (1909); 39 McKinney's Consol.Laws of N.Y., §§...

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