Category Archives: Obstructing

Seattle Allows Filming Cops

 

Image result for record the police

Great article in the Seattle Times by Daniel Beekman discusses how Seattle’s City Council voted Monday to enshrine in the Seattle Municipal Code the rights of the public to observe, record and criticize police activity without fear of retaliation.

 The only exceptions are when an observer hinders, delays or compromises legitimate police activity, threatens someone’s safety or attempts to incite other people to violence, according to the ordinance sponsored by Councilmember Lisa Herbold.

The First Amendment can offer protections to members of the public when they watch and record police. And a Seattle Police Department policy adopted in 2008 says bystanders may remain nearby and record the incident as long as they don’t interfere.

So, people already were allowed to watch and record police in Seattle. But the council’s vote means the rights of police observers are now recognized in city law.

According to Beekman, the ordinance says officers should assume members of the public are observing and possibly recording their work at all times. Councilmember Herbold initially proposed the change last year, pointing to high-profile shootings that was recorded by bystanders.

 “The value of video and audio recordings by the public is keenly evident from the recordings in 2016 of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge … and law-enforcement officers in Dallas and Baton Rouge,” the ordinance says.

Across the country, smartphones are helping regular people hold their police departments accountable. But people watching, recording and criticizing officers have in some instances been arrested, according to a council memo.

Though Seattle police are recorded by patrol-car cameras and are being outfitted with body-worn cameras, civilian recordings are still important, Herbold said Monday.

My opinion? Wonderful! I’ve had many Clients complain that their attempts to record interactions with police result in their cameras being confiscated and being slapped with charges of Obstructing and Resisting police.

I’ve said it once, and I’ll say it again: recording interactions between police and citizens makes everyone behave better and shows proof of what really happened. Kudos to the Seattle City Council.

Bellingham Police Department Body Cameras Now Mandatory

A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

Frisks & DV Investigations

 

In Thomas v. Dillard, the 9th Circuit Court of Appeals held that although the domestic violence (DV) nature of a police investigation is relevant in assessing whether a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion to search.

Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college’s campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene. When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment.

The 9th Circuit held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion:

“Because domestic violence encompasses too many criminal acts of varying degrees of seriousness for an officer to form reasonable suspicion a suspect is armed from that label alone, we hold domestic violence is not a crime such as bank robbery or trafficking in large quantities of drugs that is, as a general matter, likely to involve the use of weapons.”

Therefore, officer Dillard violated plaintiff’s Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk.

However, the 9th Circuit held that Dillard was entitled to protection from the lawsuit under qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The court further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.

My opinion? On the one hand, it’s refreshing that the Court understood the 4th Amendment issues presented in this case. Forcing a Terry search is unlawful under these circumstances. However, I disagree with the court that the officer was entitled to qualified immunity.

State v. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

State v. E.J.J.: Exercising Freedom of Speech is NOT Obstructing.

Barclays Center protest in Brooklyn, NY on December 1, 2014.

Excellent opinion.

In State v. E.J.J., the Washington Supreme Court  held that a juvenile offender, who called the officers abusive names, yelled, and used profanity toward the officers while the officers were engaged in a criminal investigation, CANNOT be convicted of obstructing a law enforcement officer. The words the juvenile directed at the officers are protected by the First Amendment. The obstruction statute is also not violated by a citizen’s presence at a scene, provided the citizen does not physically interfere with police. 

Here, juvenile defendant E.J.J. was charged with Obstructing a Law Enforcement Officer under RCW 9A.76.020(1). Under this law, 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. Obstructing is a gross misdemeanor punishable up to 1 year in jail and a $5,000.00 fine.

This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out of the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house.

Initially, E.J.J. did not comply, questioning why he had to return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, through which someone could see out and communicate through, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw further into the home, but E.J.J. refused, stating that he wanted to supervise the scene from the doorway ( 10 to 15 feet away from the other officers and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind the closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.

E.J.J. was found guilty at trial. he appealed his conviction to the WA Court of Appeals. Unfortunately, the Court of Appeals upheld E.J.J.’s conviction. The case was again appealed, only this time to the WA Supreme Court.

 The WA Supreme Court reasoned that many court cases have consistently and strongly held that people cannot be held liable when exercising their right to speak. “While E.J.J. ‘s words may have been disrespectful, discourteous, and annoying, they are nonetheless constitutionally protected.”

The Court further reasoned that our cases have consistently required conduct in order to establish obstruction of an officer. In other words, a conviction for obstruction may not be based solely on an individual’s speech because the speech itself is constitutionally protected. This review is also consistent with the approach established by the United States Supreme Court’s See Street v. New York.”

The WA Supreme Court had many reasons for disagreeing with the WA Court of Appeals. First, the WA Supremes disagreed that E.J .J.’ s physical approach toward the officers was sufficient evidence of conduct to support his conviction: “E.J.J. did not physically interfere with or touch either the police or his sister. Furthermore, the trial court’s findings of fact provide that E.J.J. did not make any threatening movements toward the officers at any time.”

Second, the WA Supremes disagreed that E.J.J.’s presence at the scene escalated the situation: “E.J.J. ‘s mere presence at the scene cannot constitute conduct. E.J.J. had every right to stand on his own property, provided he did not physically interfere with police.”

Third, the WA Supremes disagreed that E.J.J.’s refusal to obey the officers’ repeated requests to leave the scene was sufficient evidence of conduct: “This exchange is so intertwined with E.J.J.’s protected speech that we find insufficient evidence of E.J.J. ‘s conduct to support his conviction on this basis.”

Finally, the WA Supremes disagreed there was evidence of obstruction because an officer was eventually required to escort E.J.J. back to the home, thus delaying officers: “Inconvenience cannot, taken alone, justify an arrest for obstruction.” The Court concluded with the following:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment. After a comprehensive review of the record and the trial court’s findings, the decision of the trial court is reversed and charges are dismissed.”

My opinion? EXCELLENT decision. I’ve had many, many clients charged with Obstructing simply because they voiced a heated opinion with law enforcement officers during an investigation. Although it’s never okay to be disrespectful toward law enforcement, obstructing requires conduct – plain and simple. I’m pleased our Washington Supreme Court made the right decision.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

Phone: (360) 746-2642
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