Prologue — Dempere v. City of Tukwila

| Supreme Court, U.8.

FILED

|e 05 12

No. 05-__- 26 JUL 25 2005

; OFFI

in The

Supreme Court of the Gnited States

ye

-

JACKIE DEMPERE,

Petitioner,

THE CITY OF TUKWILA,

Respondent.

4

v

~~ _

On Petition For A Writ Of Certiorari To The

Washington Court Of Appeals, Division I

2

na

PETITION FOR A WRIT OF CERTIORARI

e

v

NEIL M. Fox

Attorney for Petitioner

COHEN & IARIA

1008 Western Ave., Suite 302

Seattle,WA 98104

Phone: (206) 624-9694

Fax: (206) 624-9691

e-mail: nmf@cohen-iaria.com

einen ——

a crn nem nn nn

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, under Houston v. Hill, 482 U.S. 451 (1987), a

person can be constitutionally convicted of obstructing a

police officer, when she verbally challenges the officer’s

illegal arrest of a third person, even if such verbal chal-

lenge actually interferes with the officer’s actions?

ii

TABLE OF CONTENTS

Page

UTE OEY FIRMIIIN 1 aE soso ic snonscisiecicedcdanidusvecovatneccdes i

OPO BOG sien i

STATEMENT OF JURISDICTION ................cccecceeseees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

BEET WAIT BE ecsiiinsseticdois un diieiaananasens 2

STATEMENT OF THE CASE...............cccccccccsesesensereeees 3.

REASONS FOR GRANTING THE WRIT .................... 6

A. In Houston v. Hill, This Court Recognized that

D.

the Government Could Not Criminalize Speech

Which Interfered with Police Actions................

Justice Powell’s Concurring Opinion Assumed

that the Police Act Lawfully, But What if the

Police Act UnlawRally? 3.....0cccssccccsicscsserssctecesesssns

Because the Instructions Violated Ms. Dem-

pére’s First Amendment Rights, Washington’s

Obstruction Statute is Either Facially Uncon-

stitutional or Unconstitutional as Applied to

BER, RII iisciccctsecccocnsianes MEI pA ee

The Washington Courts Failed to Appreciate

the First Amendment Issues Involved ..............

CE is aidenicsdcvceshenchscceiilin ins acainseiaviadiansene orten

11

TABLE OF AUTHORITIES

Page

CASES:

Brooks v. North Carolina Department of Correc-

tions, 984 F.Supp. 940 (E.D.N.C. 1997).........cceccseeeees 13

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)........ 14

City of Chicago v. Morales, 527 U.S. 41 (T999)........... 10, 16

City of Milwaukee v. Wroten, 466 N.W.2d 861 (Wis.

a iiccas iiidasrevcidicentakcncicissledeiaiice ancckuiasoneels hers 13

Colten v. Kentucky, 407 U.S. 104 (1972)................ 10, 11, 13

Florida v. Bostick, 501 U.S. 429 (1991)........ccccesseseereeeees 11

Groh v. Ramirez, 540 U.S. 551 (2004)... eeeeesccceeeeees 12

Gulliford v. Pierce County, 136 F.3d 1345 (9th Cir.

BIE ir cass asker ie is eaten caver unacsnhonan 5, 13, 15

Houston v. Hill, 482 U.S. 451 (1987)...2..... ce eeeee passim

In re Manuel G., 941 P.2d 880 (Cal. 1997)............. eee 12

Jackson v. Virginia, 443 U.S. 307 (1979) ..02... cece eecseeeees 14

L.A.T. v. State, 650 So.2d 214 (Fla. App. 1995)................. 13

Lewis v. City of New Orleans, 415 U.S. 130 (1974).......0..... 8

Spokane v. Hays, 995 P.2d 88 (Wash. App. 2000)............. 12

State v. Hudson, 784 P.2d 533 (Wash. App. 1990)............. 12

State v. Janisczak, 579 A.2d 736 (Me. 1990).................000 14

Terminiello v. Chicago, 337 U.S. 1 (1949)... eee eees 9

Wilson v. Kittoe, 337 F.3d 392 (4th Cir. 2003)................... 13

Ybarra v. Illinois, 444 U.S. 85 (1979) .....eeeeseceeseeeeeeee pia

TABLE OF AUTHORITIES ~ Continued

Page

STATUTES:

big Bo a | RRC SOLE ERE PERE TTS ROIS 1

eS RnB NID hv inicsincsciincdaico cdr ntsinhcecichesdkck cxioumaiiods 5

ee Eis Ae PN a haticetecninibiinnasticctne cnet kdiotieccc nce 1

Ordinances, City of Houston, Texas § 34-11(a)

TI ci ceistnchcian snip stats salbaseatchasscaabaaclcuslonledboiaiiaaascd tan 8

Rev. Code Wash. § 9A.76.020 .0.........cccccceecceceeeeces 2,4, 12,16

Tukwila (Washington) Municipal Code § 8.60.020......... 2,4

1

PETITION FOR WRIT OF CERTIORARI

Jackie Dempére petitions for a writ of certiorari to the

Washington Court of Appeals, Division I, in In the Matter

of the Personal Restraint of Jackie Dempére, No. 62925-1-I.

¢

OPINIONS BELOW

The unpublished opinion of the Washington Court of

Appeals issued on October 18, 2004, and is reported at 123

Wn. App. 1046 (2004). It is reprinted at App. la-18a. The

Washington Court of Appeals denied a motion for recon-

sideration on December 8, 2004. A copy of that order is

reproduced at App. 19a. In an unpublished order, issued

on February 24, 2005, the Commissioner of the Washing-

ton Supreme Court denied discretionary review. A copy of

the ruling is reproduced at App. 20a-23a. In an unpub-

lished order entered on May 3, 2005, the Washington

Supreme Court denied a Motion to Modify the Commis-

sioner’s Ruling. A copy of this order is reproduced at App.

24a. The judgment imposed by the trial court and the trial

court’s rulings are unpublished and are reproduced at App.

25a-36a. :

¢

STATEMENT OF JURISDICTION

The Washington Supreme Court entered its Order

denying Petitioner’s Motion to Modify the Commissioner’s

Ruling which denied review on May 3, 2005. App. 24a.

This Court has jurisdiction under 28 U.S.C. § 1257(a). 28

U.S.C. § 2403(b) may apply in this case. Although the City

of Tukwila is a political subdivision of the State of Wash-

ington, Petitioner is serving a copy of her petition on the

2

Attorney General of the State of oe pursuant to

Rule 29(c).

2

wv

CONSTITUTIONAL AND STATUTORY '

PROVISIONS INVOLVED

The First Amendment to the United States Constitu-

tion provides in relevant part: “Congress shall make no law

respecting ... abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.”

The Fourth Amendment to the United States Consti-

tution provides in relevant part: “The right of the people to

be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated... .”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “[(Nlor shall any

State deprive any person of -life, liberty, or property,

without due process of law. .. .”

The Revised Code of Washington (RCW), § 94.76.020,

provides in relevant part: “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.”

The Municipal Code of the City of Tukwila, Washing-

ton, § 8.60.020, provides in relevant part: “The following

RCW statutes of the State of Washington are adopted by

reference: ... RCW §9A.76.020 Obstructing a law en-

forcement officer.”

3

STATEMENT OF THE CASE

1. One night in October 1998, police in Tukwila,

Washington, were sent out to the scene of a possible fight

at an apartment building. When the officers arrived, they

discovered a large group of people milling around and

contacted a man who turned out to be the victim. Because

the man was “a little hysterical,” the first officer on the

scene placed him in handcuffs. App. 3a-4a. Other officers

noted a man named Ramon Garza walking nearby with

his hands inside his bulky jacket. The officers recognized

him from prior encounters and ordered him to remove his

hands from his pockets. When Mr. Garza refused, the

officers grabbed him and a struggle ensued. Mr. Garza

ended up on the ground, with officers on his neck and

back. The officers and Mr. Garza gave different accounts

about the amount of force the police used, and how much

Mr. Garza actually resisted arrest, although the police

agreed that they sprayed Mr. Garza with pepper spray

while he was in the patrol car, handcuffed. App. 4a-6a.

Jackie Dempére, the petitioner, lived near the scene of

the arrest and was working on the locks of her house when

she heard a loud scream. Still holding her screwdriver, she

went out to the street and saw an officer using his knee to

hold Garza’s head down, while he was handcuffed. She

was concerned that Garza would be injured or paralyzed.

The officers told Ms. Dempére to move across the street.

The officers claimed that Ms. Dempére disobeyed them

and came close to the arrest scene, yelling “this is Amer-

ica” and that she “can do what she wants to do.” Ms.

Dempére maintained she complied with the order to move

back, and merely told the officers that they were hurting

Garza. App. 4a-6a. Ultimately, one of the officers arrested

4

Ms. Dempére. He claimed that because of her “interfer-

ence,” he “had to break away repeatedly from assisting

with Garza and investigating the reported disturbance.”

App. 4a.

The City of Tukwila charged Ms. Dempére in its

municipal court with the gross misdemeanor of Obstruct-

ing a Law Enforcement Officer in violation of RCW

§ 9A.76.020 (adopted by reference by Tukwila Municipal

Code § 8.60.020). The case proceeded to jury trial, but it

ended in a mistrial. App. 3a.

At the conclusion of the second trial, the judge in-

structed the jury that: “Absent a threat of serious bodily

injury to the arrestee, a person is prohibited from interfer-

ing with an arrest made by a uniformed police officer.”

Instruction No. 5, App. 33a. Ms. Dempére’s attorney

excepted to the giving of this instruction, in part, on First

Amendment grounds:

And therefore if nothing else it constitutes where

words may constitute the only interference a

charge to the jury that does not take into consid-

eration first amendment rights and therefore by

its own broad based definition embraces speech,

embraces first amendment rights, constitutes a

prior restraint and cannot be used.

App. 35a.

2. Ms. Dempére was convicted and sentenced to jail,

probation, community service and a fine. App. 25a-28a.

After her conviction was affirmed on direct appeal, the

+)

municipal court modified the sentence to eliminate proba-

tion, community service and any additional jail time.’ App.

29a-32a. Ms. Dempére has paid off the fine. She therefore

may not be “in custody” for purposes of filing a writ of

habeas corpus in federal court. See 28 U.S.C. § 2241(cX3).

3. After losing the direct appeal, Ms. Dempére filed a

Personal Restraint Petition in the Washington Court of

Appeals. She asked the Court of Appeals to reconsider the

earlier rulings on direct appeal regarding Instruction No.

5, arguing that the prior rulings failed to consider ade-

quately the First Amendment or the holdings of Houston v.

Hill, 428 U:S. 451 (1987) and Gulliford v. Pierce County,

136 F.3d 1345 (9th Cir. 1998). App. 41a-46a. Ms. Dempére

also argued that there was insufficient evidence to sustain

a conviction under the Fourteenth Amendment because

the police illegally arrested Mr. Garza, who was suspected

of committing no crime, in violation of the Fourth Amend-

ment. App. 37a-41a.

The Washington Court of Appeals refused to review

the instructional issue because the issue had been raised

on direct appeal. App. 15a-17a. The Court of Appeals also

held there was sufficient evidence to sustain the convic-

tion, without addressing the Fourth Amendment issues.

App. lla-13a.

4. Ms. Dempére sought discretionary review of this

decision in the Washington Supreme Court, arguing, inter

alia, that jury instructions violated the First Amendment

and Houston v. Hill, supra, and that there was insufficient

evidence under the Fourteenth Amendment because the

* The judge sentenced Ms. Dempére to spend one day in jail, which

she had already served upon her arrest.

6

police did not have the right under the Fourth Amendment

to arrest Mr. Garza. App. 47a-50a. The Supreme Court

Commissioner rejected her arguments. App. 20a-23a. Ms.

Dempére moved to modify, again raising arguments under

the First, Fourth and Fourteenth Amendments. App. 51a-

53a. The Supreme Court denied the motion, without

comment. App. 24a.

be

vv

REASONS FOR GRANTING THE WRIT

At first glance, this case appears to involve just a

misdemeanor conviction from a municipal court dealing

with facts that occurred almost a decade ago. Yet, the facts

that led to Ms. Dempére’s arrest, trial and conviction are

repeated every day throughout the United States. While

the majority of police officers treat people with the utmost

of respect, there has been a series of incidents of outra-

geous police misconduct which have attracted much

publicity (Rodney King, Abner Louima, Amadou Diallo).

The proliferation of cameras in smaller and smaller sized

instruments (such as cell phones) increases the ability of

bystanders to record perceived police misconduct. In

response, those police officers who view onlookers with

suspicion will attempt, as they did in Ms. Dempére’s case,

to insulate their actions from public scrutiny, especially if

they are acting illegally in the first instance.

The issue presented by this case is at what point the

police have the power to arrest an onlooker for “obstruc-

tion” when the onlooker merely verbally challenges illegal

police behavior. Can a person who verbally challenges

illegal police behavior be constitutionally convicted of

“obstruction” even if her words actually interfere with the

7

a

ability of an officer to violate a third-party’s constitutional

rights?,

In Houston v. Hill, supra, this Court assumed, without

holding, that Justice Powell was correct that a person

could be constitutionally punished for standing near a

police officer and “persistently attempt[ing] to engage the

officer in conversation while the officer is directing traffic

at a busy intersection” or by shouting and running beside

an officer pursing a felon. 482 U.S. at 462 n.11. What

concerned the Court was not “simply contentious speech,

but rather the possibility that by shouting and running

beside the officer the person may physically obstruct the

officer’s investigation.” Jd. The Court’s analysis appears to

have assumed that the hypothetical officers were them-

selves acting lawfully. What the Court did not consider (in

a pre-Rodney King era) was the situation where police

behavior is blatantly illegal and a bystander attempts to

interfere with police misconduct by shouting at the offi-

cers.

Ms. Dempére’s case presents that very issue for this

Court to resolve — whether a bystander whose speech

actually interferes with illegal police behavior can be

constitutionally convicted of a crime? The Washington

courts’ resolution of this important federal question

conflicts with Houston v. Hill’s spirit and intent, if not the

holding of the case. Moreover, the Washington courts’

treatment of Ms. Dempére’s case conflicts with the deci-

sions of other state courts of last resort and other United

States courts of appeal. This Court should therefore grant

the petition under Rule 10(b) & (c).