SEATTLE — The Washington Supreme Court ruled on Thursday that a citizen has the First Amendment right to call police abusive names and yell profanity while they’re investigating a crime.
The court threw out the conviction of a juvenile, identified only by the initials E.J.J., who yelled at officers while they tried to take his intoxicated sister into custody.
“While E.J.J.’s words may have been disrespectful, discourteous and annoying, they are nonetheless constitutionally protected,” Associate Chief Justice Charles Johnson wrote for the six-justice majority. When citizens exercise their right to criticize “how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction.”
Chief Justice Barbara Madsen concurred with that ruling, but said the conviction should be dismissed on different grounds. She said obstruction charges are “used disproportionately to arrest people of color,” so the court should add a common law requirement that says if the officer’s conduct substantially contributes to the escalation of the situation, the obstruction charge should be dismissed.
Police responded to a report of an out-of-control juvenile woman. As they took her from the house, E.J.J. thought he saw one officer pull out a nightstick. He stood in the doorway and yelled at the officers not to use it on his sister. Officers ordered him to go into the house and close the door, but he kept yelling. After he yelled profanity, police arrested him on a charge of obstructing a law enforcement officer.
The justices said the First Amendment protects citizens against prosecution when they exercise their constitutional right to speak and to criticize certain governmental activities.
Madsen said the case highlights the potential for abuse of the obstruction statute.
A report by the Office of Professional Accountability found that 51 percent of obstruction charges filed in Seattle during a two-year period targeted African Americans, even though they comprise only 8 percent of the city’s population, Madsen said. The court should look not just at the obstruction charge, but also consider police conduct in the situation. She noted the U.S. Department of Justice’s settlement agreement with the city of Seattle after concerns were raised about the police department’s use of minor charges, including obstruction, disproportionately against minorities and the mentally ill.
“It is apparent that in this case the arresting officer unnecessarily escalated the situation when E.J.J. refused to close the door,” Madsen said. “At that point it appears that E.J.J. and the officer were involved in a contest of wills, and the officer won because he had the power of arrest.”
She said the court has an obligation to promote confidence in the justice system, so in order to ensure the obstruction law is not abused “as a tool of biased policing,” she said they should consider the officer’s behavior.
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.