Is contempt of cop an arrestable offense?

On Thursday, June 25, 2015, the Washington Supreme Court in the case of WASHINGTON v. E.J.J. ruled that a juvenile’s conviction for Obstruction was unconstitutional because it infringed upon his freedom of speech. In Washington state, the law is now clear that words alone, no matter how socially uncomfortable, cannot form the basis of a conviction for Obstruction.

Of course words that are threatening or which present a clear and present danger are not protected by the First Amendment.

This case involved more than just words, as the boy’s conduct alone might have justified an Obstruction charge based on Washington law.

On the night of February 14, 2011, E.J.J.’s mother, Geraldine, called 911 for help to get her daughter, E.J.J.’s sister, to leave her King County home. His sister, also a minor, was heavily intoxicated and agitated. The boy lives with his mother and was home when she called 911. Officer Sean Jenkins and two other officers responded to the call and escorted the boy’s sister out of the home. As the officers talked with his sister in the yard, the boy stepped off the porch and approached the officers and his sister. The officers had calmed his sister down, but when the boy began speaking in a loud and excited voice, she became agitated. "[He] knew that his presence was making it difficult for the officers to keep [his sister] still and calm."

The officers asked the boy at least five times to go back inside the house and shut the door, warning him that he was obstructing their investigation and could be arrested, but the boy refused the officers' requests. Officer Jenkins ultimately walked the boy to the front door and instructed him to go inside and close the front door. The boy called the officers several insulting names and was yelling and swearing as Officer Jenkins walked him to the door. The boy refused to close the front door because he wanted to supervise the scene and make sure that his sister was not harmed during her interaction with the officers. Officer Jenkins asked the boy to close the door several times, but he refused despite being repeatedly warned that he could be arrested for obstructing the officers.

The boy was then arrested and prosecuted for Obstruction. Because he was a minor, he was not entitled to a jury trial. He was brought before a juvenile court judge, who found him guilty.

For years many people have been calling the Obstruction and Resisting Arrest statutes a ploy that officers use when they believe someone with whom they have interacted has disrespected them or could sue them for unreasonable use of force. The Washington Supreme Court has now made it clear that there must be conduct on the part of the defendant, independent of speech, in order to maintain a charge of Obstruction.

Another problem with Washington’s Obstruction statute is its ready use to justify arresting African-Americans and at alarming rates. This statute, along with archaic drug laws, has been used to incarcerate a disproportionately large number of African-Americans, who become an inescapable part of a criminal justice system whose laser-focus on Black words and deeds belies the blind eye it turns on whites whose similar actions rarely merit conviction, prosecution or even arrest.

Concurrent opinions by Chief justice Barbara Madsen and Associate Justice Steve González illustrate the impact of Washington’s Obstruction statute on African-Americans. According to a report by the Office of Professional Accountability, 51% of the Obstruction charges filed in Seattle between 2006 and 2008 were against African-Americans who comprise only 8% of Seattle’s population. Equally noteworthy is that a majority of all excessive force complaints are made by minorities in this city which is overwhelmingly white.

While Washington’s Obstruction statutes may serve an important law enforcement purpose, it is virtually impossible to determine when an arrest involving both conduct and words is actually motivated by words; and the Court’s appreciation of this dilemma undoubtedly led to its overturning the boy’s conviction in this case.

Chief Justice Madsen would add a new element to the Obstruction analysis: Where the officer's conduct substantially contributed to the escalation of the circumstances that resulted in the arrest for Obstruction, the state has failed to meet its burden to show that the defendant willfully hindered, delayed, or obstructed a law enforcement officer in the discharge of his or her official powers or duties.

Chief Justice Madsen’s suggestion, however, is still not the law.