Over the last weekend, our rookie President made his poorly-informed opinion known about the First Amendment rights of NFL, NBA, and MLB players who choose to kneel during the National Anthem at the beginning of professional sports games. Originally an individual effort, former 49er’s Quarterback Colin Kaepernick caused a lot of controversy when he first kneeled to protest “wrongdoings against African Americans and minorities in the United States” back in 2016. Since Kaepernick’s interview in August of 2016, America hasn’t exactly made any progress in addressing racial tension, and other professional athletes, some whole teams, have decided to use their platform to draw attention to the issue as well. Unfortunately, this protest serves as an excellent microcosm from which we can explore common themes that perpetuate racism in the United States.

First and foremost, the main message of this protest is distorted and obscured in such a way that centers the feelings of white people. The first way in which it’s distorted is through disqualification. One of the favorite critiques of this protest is that professional athletes make too much money to be complaining about oppression. While it’s understandable that people would be frustrated that those who are far wealthier than them could consider themselves oppressed, it fails to recognize the common fallacy that lies in conflating issues of race and class. Contrary to the narrative of meritocracy, simply being in possession of wealth does not make a person immune from discrimination based on race – especially if it occurred in the past. While it might shelter or prevent someone from facing the negative economic impacts of racial discrimination immediately, it doesn’t nullify or make experiences of racism unreal.

The second way this protest is distorted is through the message itself. Despite protesters being quite clear with their intentions, talking heads like Tomi Lahren, Tucker Carlson, and even Sarah Huckabee Sanders have been complicit in constructing a nationwide strawman that supposes athletes are protesting the flag, American armed forces, and as hyperbolic as it sounds, America in general. As a consequence, hard-working folks have convinced themselves that they are responding in kind by destroying jerseys, coats, and tickets they have already paid for as a symbol of their discontent for the NFL and the players protesting. Without engaging with the issues of systemic discrimination, people have dismissed the argument by insisting those who do not stand for the Pledge or the flag are simply disrespectful of America and the people who serve(d) in our military.

The third and final way this protest is distorted is through obfuscation. People critical of the protests also present a false dichotomy in which players kneeling during the Pledge aren’t doing anything to solve the problems they are protesting. Media attention via depriving America of its favorite pastimes aside, professional athletes are some of the most effective philanthropists in our society. In particular, Colin Kaepernick set up a foundation “to fight oppression of all kinds globally, through education and social activism” by donating $1,000,000 to organizations that engage inner-city youth, help homeless people, or advocate for people-based public policy.

If we dive deeper into this controversy, we will find this isn’t the first time it’s happened either. Professional athletes who have used their platform for social activism – particularly racial equity – have been met with hostility. Why? To spectators and fans, athletes are representations of their hometown, an extension of themselves. Especially when it contradicts their narrative, it is completely unacceptable to some people that their political and individual agency encroach upon their duty to entertain and represent their locale. Intentional or not, in tandem with the apathy towards their cause, the suggestion that Black athletes should just ‘stop complaining and do their job’ echoes the sentiments of slave-owners and chain-gang operators of years past.

​When we zoom out to look at professional sports at large, the uncritical eye might suggest we’ve reached a level of equity unseen in other industries because Black people are overwhelmingly represented in America’s favorite professional sports. However, this perspective diverges from the way we discern how diverse an industry is. Race theorist and basketball enthusiast Ibram Kendi suggests: “We should determine diversity in sports, just like outside of sports, not by the transient players but by the people who are permanent, like the owners, like the coaches, like the sports writers, like the executives.” If those groups “are lily-white, then [a sport] is simply not diverse.”

​As the NFL continues its season, and Donald Trump begins to double-down on anti-Constitutional rhetoric, it will be interesting to see how the market responds to looming boycotts and continued controversy. Stay tuned! ​

 Like many other law schools around the country, UC Berkeley School of Law (Boalt) reconvened on Monday, August 21, and I was among the 304 new 1L students, 64% of which are women and 42% of which are people of color (part of the reason I chose to attend Boalt). Though I’m exhausted, I feel inspired and humbled by my classmates and professors, and I am filled with excitement for the next two years and nine months.
As a 1L, I am assigned to a “module” of about 30 other students with whom I share all my classes. Although the classes 1Ls take each semester vary from module to module, every student will take Torts, Civil Procedure, Criminal Law, Property, and Contracts throughout their first year. Additionally, all 1Ls take Legal Research & Writing in the fall and Oral Advocacy in the Spring. My “mod” convenes for Torts, and we take Property and Civil Procedure with two other modules to comprise one “super-mod.” Additionally, our Legal Research & Writing classes comprise students from all three mods in our super-mod.
The workload, as expected, has been immense. We have already completed several writing assignments and dozens of case briefs. For Civil Procedure, my class was assigned an entire book to read this week, in addition to our typical amount of weekly reading. That being said, it has been incredibly interesting, valuable, and fulfilling to apply what I’m learning inside the classroom to the work I had the opportunity to be involved with at the Civil Rights Justice Center. While many of my classmates have lamented that their experiences as legal assistants did not prepare them for law school, I have applied the knowledge I gained at the CRJC to my classwork every single day. Moreover, my professors have done a remarkable job of applying course themes to current events and legal activism. As someone whose interest in becoming an attorney stems from my belief in the law as a tool of social justice, I have loved it. 
One way that I believe Boalt is special is the collegial sense of community at the law school. This week, our new Dean hosted four dinners at his home—one for each super-mod and one for faculty. At our super-mod dinner, I spoke with professors and classmates about the ways past Boalt students have bolstered each other, and the ways we can do so in the coming months and years. This collaborative, kindhearted culture is what is deeply needed in the legal profession, and I am so glad to be attending a school that values compassion as much as it values hard work. As I take my next steps towards advancing my career in social justice and civil rights, I know I am doing so at a school and amongst peers that want to see me succeed.

7:20 – After snoozing my alarm once or twice, I get up and get ready. I’m exhausted, but I know I have to be on the road before 8:00 AM.
7:55 – I grab a granola bar and leave the house in time to beat commute traffic, which somehow gets ten times worse by 8:00. During my drive, I listen to podcasts and mentally recite the issues and rules of cases I had to brief for today. My professors occasionally cold call—not to embarrass us, but to make sure the class discussion isn’t dominated by a few confident voices.
8:15 – I arrive at the off-campus parking structure, four blocks from the law school. My dad used to park in this same structure when he was earning his Bachelor’s Degree here!
8:35 – After buying a very large coffee and putting my books in my locker, I make it to my first class (Property) just early enough to complain with my seat neighbors about the amount of reading we were assigned. In class, we discuss the “dibs doctrine” and the varying degrees of property rights. One of our assigned cases for today was Popov v. Hayashi, and my classmate suggests that the Court could have deferred to standard MLB rules to determine whether the plaintiff had achieved full control over the ball in question. Seriously, my peers are so cool and smart.
9:50 – I fill up my water bottle during passing period and walk to our next class, Civil Procedure. Two classmates and I quickly discuss the plan for completing our group project over the weekend. Because I have experience writing Complaints from my time at the CRJC, I offer to get the ball rolling for us.
11:05 – I amble downstairs to our final class of the day (Torts) and grab my book from my locker, which always takes a few tries to open (thanks for nothing, high school). This is a much smaller class than the other two, so I prepare to participate plenty without fear of embarrassing myself. Today, we have an exercise in representing the two parties in a case we had read for today. One of my classmates and I spar over our hypothetical clients, but resolve later to make up over beers the next day.
12:25 – I dawdle outside the classroom with my peers, making plans to attend office hours, study together later, or meet up for Bar Review (a schoolwide weekly bar crawl).
12:45 – There aren’t ever any classes scheduled during the next hour because so many affinity groups, clubs, and journals host lunch meetings. On most days, I’m attending one of these meetings to score some free Thai food and learn something new, but today, I attend a Lexis training (no Thai food, but there is pizza!). All 1L students are required to complete a Lexis or Westlaw training by the end of this week. It’s boring, but I’m inspired to earn my daily search points and get free stuff.
1:45 – The bulk of my day is done and now I can focus my attention on reading and case briefing. I usually love to work in our gorgeous law library, but if I’m feeling restless I’ll sit in the lounge adjacent to the law school’s café, so I can get up and chat with people as needed.
6:00 – Hopefully by this point I’ve finished enough work to leave a casebook or two in my locker. I’ll most likely have to take at least one home anyway, though.
6:20 – I arrive home and recap my day with my boyfriend, which mostly involves telling him what kind of free lunch I got today and whether any of my friends were cold-called.
7:30 – We eat dinner and watch TV while I work on some reading that requires less focus (sorry, Legal Research & Writing).
10:00 – By this time all of our shows are over and I’m back to my desk, concentrating on case briefing for a little while.
12:30 – Ideally, I’ll be showered and in bed by this point! Because I try to get so much of my reading finished on campus, I can usually get nearly seven hours of sleep. This also allows me to keep a full day open on the weekends, although that could change when I eventually join a student-led pro-bono project later this semester!

In the wake of Charlottesville, and the ensuing protests afterwards, your social media feed has probably been full of debates about whether Neo-Nazis, White Supremacists, and the Alt-Right who applied for a permit in Charlottesville had a right to demonstrate, regardless of the message they were trying to send or the body armor they donned while doing so. If you’ve exhausted yourself fighting with second cousins and high school classmates, take consolation that you are just one of many minds that have grappled with this question.

     Free Speech is one of the five protected rights enshrined in our First Amendment, and is indeed one of the things that can make America a great place to live. However free speech is not a uniquely American idea. The Ancient Greeks are attributed with the original creation of free speech – it is the foundation of democracy and gives us intellectual and social space to push the questions surrounding our existential meaning. Clever as they were, they also had problems with its boundaries. Socrates, a philosopher famous for a quote taken during his testimony, “an unexamined life is not worth living”, was sentenced to death for making fun of the king.

     Freedom of speech has also been enshrined in International Law. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights lay out the importance of individuals being able to express, share, and receive information and opinions freely. Many other countries have free speech worked into their domestic law. Many of these laws tend to guarantee the same right to free expression that we get in America. Some go so far as to outlaw things like Holocaust Denial or speech aimed at limiting other people’s rights.

     In America, we have relatively permissive freedom of speech rules shaped by the Supreme Court, including the protection of hate speech. Terminiello v. Chicago (1949) and Brandenburg v. Ohio (1969) both spoke to the way in which America really values the language of the Constitution. The court faced discriminatory language and language critical of the government, respectively, with the precedent that there is no room for policing the language of others so long as it doesn’t present a clear and imminent danger to others.  

     Speaking specifically to swastikas, the SCOTUS ruled “A community need not wait to be subverted by street riots and storm troopers; but, also, it cannot, by its policemen or commissioners, suppress a speaker, in prior restraint, on the basis of news reports, hysteria, or inference that what he did yesterday, he will do today” in the National Socialist Party v. The Village of Skokie (1977).
They additionally reason that allowing the government to make decisions about what is or isn’t offensive is tricky, as people could be subject to mob rule, i.e. people in a city or a neighborhood could just as easily revert to bigoted ideas about who should be allowed to express themselves in the community. Ironically, because of the precedent it would set to outlaw a specific opinion or perspective, it is in defense of marginalized people that hate speech continues to be protected.

     Defending hate speech under the cloak for free speech is not to say that free speech is speech free from consequences. As a result of the Charlottesville rally, a large number of people who were identified as members of ‘the Alt-Right’ have lost their jobs, been publicly disowned by their family, and ousted from their communities. To the unlikely few upset by this, breathe easy knowing that a reporter lost her job in 2011 by participating in a Washington D.C. ‘Occupy’ protest.  

     An interesting concept when trying to dissect the debate is the Paradox of Tolerance. Philosopher Karl Popper suggests that maintaining a tolerant society is not contingent upon extending that tolerance to people who perpetuate intolerance. In fact it is necessary for the survival of a tolerant society that we “not […] tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.”
From this author’s perspective: unfortunately, Karl Popper isn’t in congress.
​
     Long story short: Yes, in the United States, hate speech is protected speech unless it puts a person’s life in imminent danger. While there is clearly an argument to be made that the historical context of Nazi propaganda presents a message of danger, the images or speech itself is not tantamount to the genocide they advocate. Whether hate speech deserves to be protected is still a contentious issue, regardless of partisan affiliation, and great minds alike have advocated for either position.

​Check out the video from PBS below for more insight!

Americans are infatuated with retributive justice. Our cultural attitudes towards crime and punishment are reflected by a media saturated with images of violence, the highest rate of incarceration in the world, and our metaphorical vice-grip on using state-sanctioned executions as a form of punishment.  What many people do not know is the ways in which our prison system continues to arrest people who have served their time in custody.
​
     Incarcerated people and their families are frequently pressed for cash both during and after incarceration. Contrary to our stereotypes surrounding people who have been or are incarcerated, 41 states in the US allow for people to be charged for room and board while they are incarcerated. Additionally, 43 states and the District of Columbia allow defendants to be charged for a public defender – something every person is Constitutionally guaranteed; 44 states can bill for probation services and every state but Hawaii and D.C. charge for mandatory location monitoring after a defendant’s release.
​
     In 1983, the Supreme Court ruled in Bearden v. Georgia courts were not allowed to revoke a person’s probation simply because they lacked the resources to pay for fines or restitution. The crux of this decision’s dysfunction is rooted in the court having to decide if a “petitioner has [made] bona fide efforts to seek employment or borrow money to pay”. There are numerous accounts of people who spent time in jail for things like catching fish out of season, stealing a $2 can of beer, or entering an abandoned building. If you’ve read our post “Privatization and How it Compromises Civil Liberties”, it will come of little surprise to you that over 1,000 courts in the US delegate their work to for-profit probation companies, who are able to send people with unpaid accounts to jail for things as simple as moving violations or a lack of insurance – only perpetuating the cyclical nature of our criminal justice system.
As if having to pay for being incarcerated wasn’t enough, people have distinct and widespread difficulty finding employment after their release. An estimated 60% to 75% of people who exit incarceration are still unemployed a year after their release date. Those who do find work will find their wages are, on average, 20% smaller than what they were used to before incarceration. Why is this the case? Incarceration records become relevant to the Equal Employment Opportunity Commission in two contexts:

1. In matters of disparate treatment where job applicants of a protected class are treated differently for the same criminal record as someone who does not belong to a protected class
2. In matters of disparate impact where disqualification based on conviction records is being used to disproportionately disqualify people belonging to protected classes*, the employer is required to show how a conviction-disqualification is relevant and necessary to the business, i.e. someone with an identity theft charge is reasonably disqualified to work with sensitive personal information.  

• *Bearing in mind that the criminal justice system disproportionately interacts with people of color more often – it is arguably impossible to eliminate people based on convictions without disproportionately affecting a protected class.​

​     In other words, it is technically illegal to discriminate against people for having a criminal history. It’s also perfectly legal for potential employers to ask about convictions on an application. When HR recruiters are looking for ways to cull a stack of applications for one job, criminal convictions are an easy way to eliminate potential employees. All employers are required to do when assessing an applicant is “take into account the nature of the job sought, the type of conviction, and how long it has been since the conviction. In addition, the employer should consider any relevant information submitted by the applicant, such as evidence of rehabilitation or past work experience”.

    It does not take much imagination to think about the ways that exiting prison or jail with few employment prospects and hundreds or thousands of dollars of debt would inhibit a person from being successful – regardless of the level of rehabilitation that happened during their incarceration. That being said, some localities have decided to address the disparities faced by people exiting their incarceration with a couple of best practices:

1. Ban the box! In 2014, Fair hiring advocates in Boston and San Francisco urged their city leadership to make it illegal to ask potential applicants about whether they have a previous criminal record. A wildly popular law because of the benefits it provides both job seekers and employers, nearly 1/3 of Americans now live in a locality with a requirement that candidates are assessed on their skill level and interview before a background check is conducted. Not only are formerly incarcerated people able to find work that helps them avoid recidivism, but employers are finding the narratives surrounding formerly incarcerated people to be untrue: people with records can be and are just as productive and talented as people without records.  
2. We need to disrupt our cultural disposition towards how inmates are supposed to spend their time and how they are compensated for it. Banning the box does us no good if upon their release, people are required to explain why they were unemployed for the last few months or years. Studies have shown that when we pay incarcerated employees full wages, they are better prepared to exit incarceration both financially and professionally. A vast majority of the employment opportunities that exist in prison teach softer skills, such as cleaning or cooking, and are overwhelmingly underpaid. Those that do receive a paycheck for their work often have their wages garnished for costs associated with their incarceration, other court ordered fees and payments, as well as the prison itself in exchange for such comforts as toothpaste, shaving razors, and until the early part of August 2017, feminine hygiene products.
3. Prisons need to implement comprehensive discharge planning for inmates as they enter an institution. This gives people a light at the end of the tunnel to focus on while they are incarcerated and forces institutions to fulfill their obligation as opposed to passing the buck to other services. The best model to date is called APIC. It involves a social worker engaging with incarcerated people to assess their needs relevant to reintegrating into society, plan how they will get those needs met, identify the resources that are available or out of reach to an inmate, and coordinate their delivery upon their release.  
4. At large – eliminating the for-profit prison industry. Organizations that lose sight of their mission or goal will fail. When those institutions are largely funded by the government, failing to complete the task they are intended to complete, taxpayers simply find themselves funding a system that is inherently unjust and arguably makes problems worse than makes them better.

Throughout my career as an attorney, I have spoken at many high schools across the country.  I have noticed that the most frequently asked questions are all related to the types of classes students should take if they want to become lawyers.  Invariably, a student will ask me what I majored in at Fordham University, and I reluctantly explain that I studied Political Science because my counselor told me that it was the chosen major of most aspiring law students.

In my job search following graduation, I quickly realized that majoring in Political Science (though it was an interesting and enjoyable experience) did not translate to ready job offers.  From a practical standpoint, I had entered the job market with no marketable skills. This is why I tell aspiring law students to choose a major that is a balanced combination of interesting, practical, and marketable.

Keep in mind that law school admission isn't guaranteed nor is the desire to actually practice law once you graduate. Maximize your college experience and prepare yourself for both life and law school.  Attain skills that enable you to find work in a field you enjoy so that you have viable options should your path toward becoming a lawyer take an unexpected turn.

As for which classes to take—if I had the opportunity to go back to college and do it all over again—I’d major in business and take classes in drama, computer science, communications, debate, office management, marketing, and software development.  All of these classes would have benefited me in the practice of law.

Today, I run my own civil rights practice, but my ability to do so was gained on the job by trial and error and by asking the advice of others. In retrospect, it would have been much more helpful to have prepared for this throughout college by taking a greater variety of classes.

Leave Entitlements

• Eligible employees who work for a covered employer can take up to 12 weeks of unpaid, job-protected leave in a 12-month period for the following reasons:
  • The birth of a child or placement of a child for adoption or foster care;
  • To bond with a child (leave must be taken within 1 year of the child's birth or placement);
  • To care for the employee's spouse, child, or parent who has a qualifying serious health condition;
  • For the employee's own qualifying serious health condition that makes the employee unable to perform the employee's job;
  • For qualifying exigencies related to the foreign deployment of a military member who is the employee's spouse, child, or parent.
• An eligible employee who is a covered servicemember's spouse, child, parent, or next of kin may also take up to 26 weeks of FMLA leave in a single 12-month period to care for the servicemember with a serious injury or illness.
• An employee does not need to use leave in one block. When it is medically necessary or otherwise permitted, employees may take leave intermittently or on a reduced schedule.
• Employees may choose, or an employer may require, use of accrued paid leave while taking FMLA leave. If an employee substitutes accrued paid leave for FMLA leave, the employee must comply with the employer's normal paid leave policies.

Benefits & Protections

• While employees are on FMLA leave, employers must continue health insurance coverage as if the employees were not on leave.
• Upon return from FMLA leave, most employees must be restored to the same job or one nearly identical to it with equivalent pay, benefits, and other employment terms and conditions.
• An employer may not interfere with an individual's FMLA rights or retaliate against someone for using or trying to use FMLA leave, opposing any practice made unlawful by the FMLA, or being involved in any proceeding under or related to the FMLA.

Eligibility Requirements

• An employee who works for a covered employer must meet three criteria in order to be eligible for FMLA leave. The employee must:
  • Have worked for the employer for at least 12 months;
  • Have at least 1,250 hours of service in the 12 months before taking leave;* and
  • Work at a location where the employer has at least 50 employees within 75 miles of the employee's worksite.

      *Special "hours of service" requirements apply to airline flight crew employees.
Requesting Leave

• Generally, employees must give 30-days' advance notice of the need for FMLA leave. If it is not possible to give 30-days' notice, an employee must notify the employer as soon as possible and, generally, follow the employer's usual procedures.
• Employees do not have to share a medical diagnosis, but must provide enough information to the employer so it can determine if the leave qualifies for FMLA protection. Sufficient information could include informing an employer that the employee is or will be unable to perform his or her job functions, that a family member cannot perform daily activities, or that hospitalization or continuing medical treatment is necessary. Employees must inform the employer if the need for leave is for a reason for which FMLA leave was previously taken or certified.
• Employers can require certification or periodic recertification supporting the need for leave. If the employer determines that the certification is incomplete, it must provide a written notice indicating what additional information is required.

Employer Responsibilities

• Once an employer becomes aware that an employee's need for leave is for a reason that may qualify under the FMLA, the employer must notify the employee is he or she is eligible for FMLA leave and, if eligible, must also provide a notice of rights and responsibilities under the FMLA. If the employee is not eligible, the employer must provide a reason for ineligibility.
• Employers must notify its employees if leave will be designated as FMLA leave, and if so, how much leave will be designated as FMLA leave.

Enforcement

• Employees may file a complaint with the U.S. Department of Labor, Wage, and Hour Division, or may bring a private lawsuit against an employer.
• The FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.

What is the WLAD (Washington State Law Against Discrimination) definition of disability?
A disability can be sensory, mental or physical impairment that:

• is medically recognized or diagnosed;
• exists as a record; or
• is perceived to exist whether or not it exists in fact. 

A disability exists regardless of whether it is temporary or permanent.  It includes, but is not limited to, any physiological disorder or condition, cosmetic disfigurement, digestive, lymphatic, skin and endocrine or mental, developmental, traumatic or psychological disorders. 

How does the ADA define disability?
The ADA defines a person with a disability as:

• one who has a physical or mental impairment that substantially limits a major life activity, or
• has a record of such an impairment, or
• is regarded as having such an impairment. 

A major life activity could be many things such as: walking, reading, bending, communicating, working, functions of the immune, reproductive, or respiratory systems.  An impairment that has outbreaks or is in remission is considered a disability if it substantially limits a major life activity when it is active. 

How is substantially limited defined?
A disability substantially limits a major life activity:

1. if the person cannot do something that the average person in the general population can do; or
2. the person is significantly restricted in the way or length of time of performing the activity as compared to the average person in the general population.  

The major life activity of working is substantially limited if the person is significantly restricted in doing a class of jobs or broad range of jobs in different classes compared to the average person with similar training, skills and abilities. A person does not need to have a substantial limitation in the major life activity of working to be protected from discrimination in the work environment. The substantial limitation can be of any major life activity. The determination of whether a major life activity is substantially limited is made without considering things such as medication, assistive technology (wheelchairs, walkers, crutches), and learned behavioral modifications, with the exception of ordinary eyeglasses and contact lenses.  

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.