Petition for Writ of Certiorari — Dempere v. City of Tukwila
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A. In Houston v. Hill, This Court Recognized that
the Government Could Not Criminalize Speech
Which Interfered with Police Actions.
In Houston v. Hill, supra, the Court addressed a
Houston ordinance which made it unlawful “for any person
to assault, strike or in any manner oppose, molest, abuse
or interrupt any policeman in the execution of his
duty....” 482 U.S. at 455, quoting Ordinances, City of
Houston, Texas § 34-1l(a) (1984). Mr. Hill had been
charged under this ordinance after he shouted at police
officers who had stopped his friend. Hill attempted to
“divert” the officers’ attention from his friend and yelled
“Why don’t you pick on somebody your own size?” One of
the officers responded, “Are you interrupting me in my
official capacity as a Houston police officer?” Hill then —
shouted, “Yes, why don’t you pick on somebody my size?”
482 U.S. at 453-54.’ Hill was arrested, but was ultimately
acquitted by a jury. He then filed a civil lawsuit on the
issue of the constitutionality of the Houston ordinance.
This Court held that the ordinance was unconstitu-
tionally overbroad in that it prohibited verbal challenges
to the police, which were entitled to protection:
[T]he First Amendment protects a significant
amount of verbal criticism and challenge directed
at police officers. “Speech is often provocative
> As in Ms. Dempére’s case, the testimony between the officer and
Mr. Hill “substantially diverge(d],” leading this Court to “note the
applicability of JUSTICE POWELIL’s observation that there is a
‘possibility of abuse’ where convictions under an ordinance frequently
turn on the resolution of a ‘direct conflict of testimony as to ‘who said
what.’’” Houston v. Hill, 482 U.S. at 454 n.2, quoting Lewis v. City of
New Orleans, 415 U.S. 130, 135, n.* (1974) (POWELL, J., concurring in
result).
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and challenging. ... {But it] is nevertheless pro-
tected against censorship or punishment, unless
shown likely to produce a clear and present dan-
ger of a serious substantive evil that rises far
above public inconvenience, annoyance, or un-
rest.”
Houston v. Hill, 482 U.S. at 461, quoting Terminiello v.
Chicago, 337 U.S. 1, 4 (1949).
The Court noted that verbally challenging police
officers was a hallmark of a free society:
The Constitution does not allow such speech to
be made a crime. [Footnote omitted] The freedom
of individuals verbally to oppose or challenge po-
lice action without thereby risking arrest is one
of the principal characteristics by which we dis-
tinguish a free nation from a police state.
482 USS. at 462-63.
Because the Houston ordinance criminalized verbal
challenges to police actions, and was not limited to fight-
ing words, “nor even to obscene or opprobrious language,”
482 U.S. at 462, the ordinance was unconstitutionally
overbroad and facially invalid.
In his concurring opinion, Justice Powell also con-
cluded the Houston ordinance was unconstitutional, but
questioned:
the implication of the Court’s opinion that the
First Amendment generally protects verbal “chal-
lenge([s) directed at police officers,” ante, at 461.
A “challenge” often takes the form of opposition
or interruption of performance of duty. [Footnote
omitted] In many situations, speech of this type
directed at police officers will be functionally
~__--10—
indistinguishable from conduct that the First
Amendment clearly does not protect. For exam-
ple, I have no doubt that a municipality constitu-
tionally may punish an individual who chooses to
stand near a police officer and persistently at-
tempt to engage the officer in conversation while
the officer is directing traffic at a busy intersec- —
tion. Similarly, an individual, by contentious and
abusive speech, could interrupt an officer’s inves-
tigation of possible criminal conduct. A person
observing an officer pursuing a person suspected
of a felony could run beside him in a public street
shouting at the officer.
482 U.S. at 479 (Powell, J., concurring).
In a footnote, the majority recognized Justice Powell’s
concerns and agreed that “such conduct might constitu-
tionally be punished under a properly tailored statute”
that “prohibited individuals from physically obstructing an
officer’s investigation.” 482 U.S. at 462 n.11. The Court
cited as an example Colten v. Kentucky, 407 U.S. 104
(1972), a case which rejected as “near frivolous” the
contention that the First Amendment protected the right
of bystanders to observe the police issue a traffic citation.
407 U.S. at 109. See also City of Chicago v. Morales, 527
U.S. 41, 69 (1999) (Kennedy, J., concurring) (assuming
that some police commands need to be followed, at risk of
criminal prosecution — “Illustrative examples include
when the police tell a pedestrian not to enter a building
and the reason is to avoid impeding a rescue team, or to
protect a crime scene, or to secure an area for the protec-
tion of a public official.”).
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B. Justice Powell’s Concurring Opinion Assumed
that the Police Act Lawfully, But What if the Po-
lice Act Unlawfully?
The majority’s footnote in Hill, Justice Powell’s
concurring opinion, and the decision in Colten all assume
the good faith of police behaviors, and the consequent duty
of bystanders not to interfere. Yet, should bystanders
stand mute in the face of blatantly illegal police miscon-
duct? If the police are acting illegally, should not a by-
stander have a right, protected by the First Amendment,
verbally to challenge police behavior, even if such chal-
lenges actually interfere with the police misconduct?
Would Rodney King’s injuries have been less severe if the
person videotaping had shouted at the officers to stop
beating him, thereby distracting the officers?
In Ms. Dempére’s case, the police had no authority,
under the Fourth Amendment, to act in the way that they
did. From the moment of their arrival at the scene, they
acted illegally — they handcuffed the victim, and then
forcefully detained Mr. Garza, who was suspected of
committing no crime. Indeed, Mr. Garza was merely in the
vicinity of some, as of yet, undefined incident and had a
Fourth Amendment right to walk away, unmolested by the
police. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A]
person’s mere propinquity to others independently sus-
pected of criminal activity does not, without more, give
rise to probable cause to search that person.”); Florida v. —
Bostick, 501 U.S. 429, 434 (1991) (person who is not seized
should feel free to disregard the police and go about his
business). Under this Court’s Fourth Amendment juris-
prudence, the Tukwila police acted with alarming illegality
when they grabbed Mr. Garza, threw him to the ground,
handcuffed him and pepper sprayed him for no reason
12
other than his mere presence near some disturbance, the
nature of which had not even been determined.
Thus, the police were not discharging their “official
powers or duties” as that term used in RCW § 9A.76.020.
See In re Manuel G., 941 P.2d 880, 885 (Cal. 1997) (“The
long-standing rule in California and other jurisdictions is
that a defendant cannot be convicted of an offense against
a peace officer ‘engaged in ... the performance of ... {his
or her] duties’ unless the officer was acting lawfully at the
time the offense against the officer was committed.”)
(original italics, internal quotes and citation omitted).
Prior Washington State cases recognized that police
officers act within their “official powers or duties” only if
they are acting in good faith, and are not on a “frolic of
their own.” State v. Hudson, 784 P.2d 533, 536 (Wash. App.
1990); Spokane v. Hays, 995 P.2d 88, 92 (Wash. App. 2000).
However, an officer does not act in “good faith,” if a rea-
sonable officer should know that his or her actions violate
clearly established law. Groh v. Ramirez, 540 U.S. 551,
563-65 (2004).
Here, any reasonable officer should know that the
Fourth Amendment prohibits what the officers did in this
case — the use of physical force to restrain a bystander who
was merely walking in the area of some undefined crime.
Because the police were acting illegally, in violation of the
Fourth Amendment, Ms. Dempére had the right, under
the First Amendment, to approach the officers and shout
at them to stop hurting Mr. Garza. Even if she said “this is
America” and that she “can do what she wants to do”
(comments that Ms. Dempére denied making), she was not
far from the mark:
13
He was, however, speaking to a representa-
tive of government, the police. And it is to gov-
ernment that one goes “for a redress of
grievances,” to use an almost forgotten phrase of
the First Amendment. But it is said that the
purpose was “to cause inconvenience and annoy-
ance.” Since when have we Americans been ex-
pected to bow submissively to authority and
speak with awe and reverence to those who rep-
resent us? The constitutional theory is that we
the people are the sovereigns, the state and fed-
eral officials only our agents. We who have the
final word can speak softly or angrily. We can
seek to challenge and annoy, as we need not stay
docile and quiet.
Colten v. Kentucky, 407 U.S. at 121-22 (Douglas, J., dis-
senting).
Indeed, without even having to analyze the legality of
police behavior, Ms. Dempére had the right to shout at the
police not to hurt Mr. Garza. See Wilson v. Kittoe, 337 F.3d
392 (4th Cir. 2003) (not obstruction under Virginia law for
lawyer to offer assistance to arrestee); Gulliford v. Pierce
County, supra (individual had right to tell officers dealing
with disturbance “why don’t you hop on the ferry, hop on
the ferry and go back”); Brooks v. North Carolina Depart-
ment of Corrections, 984 F.Supp. 940 (E.D.N.C. 1997)
(vacating conviction of a minister who complained about
police racial epithets and who failed to leave the scene);
L.A.T. v. State, 650 So.2d 214 (Fla. App. 1995) (defendant
had First Amendment right to yell to gathering crowd
“police brutality, Rodney King style,” as well as a series of
swear words, regarding officers who were arresting his
friend); City of Milwaukee v. Wroten, 466 N.W.2d 861 (Wis.
1991) (affirming, on First Amendment grounds, dismissal of
14
charges against defendant who refused to leave the scene
of juvenile disturbance); State v. Janisczak, 579 A.2d 736
(Me. 1990) (defendant had right to yell abusive names and
to yell “you don’t have the right to do that” at officers
making an arrest).
The Fourth Amendment violation and excessive force
that was being applied to Mr. Garza gave Ms. Dempére
even more of a right to interfere with the police by shout-
ing at them. This is not to say that Ms. Dempére could
have or should have incited the crowd to harm the officers.
However, there is no suggestion even that Ms. Dempére
used rude language or obscenities toward the officers, let
alone fighting words. See Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942). Even looking at the evidence in
the light most favorable to the government, Jackson v.
Virginia, 443 U.S. 307, 319 (1979), Ms. Dempére did no
more than complain loudly about illegal police behavior,
while coming within a few feet of the officers. Under
Houston v. Hill, supra, the First Amendment and the Due
Process Clause of the Fourteenth Amendment, she should
not have been convicted for verbally challenging the
officers who were illegally arresting Mr. Garza, even if her
shouting actually interfered with their efforts.
C. Because the Instructions Violated Ms. Dempére’s
First Amendment Rights, Washington’s Obstruc-
tion Statute is Either Facially Unconstitutional
or Unconstitutional as Applied to Ms. Dempére.
Apart from the sufficiency issue, the Washington
courts have upheld, in Ms. Dempére’s case, the use of a
jury instruction in obstruction cases which directly con-
flicts with the protections of the First Amendment. Here,
15
Instruction No. 5 states: “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.”
App. 33a. As pointed out by Ms. Dempére’s lawyer at trial,
this instruction “eliminate[d] simply the exercise of first
amendment rights.” App. 35a.
In Houston v. Hill, supra, Mr. Hill essentially chal-
lenged one of the police officers to fight him in an effort to
prevent the officers from hitting his friend. 482 U.S. at
453-54 & n.1. Yet, at worst, the officer had only grabbed
his friend, “placed him up against a wall, and threatened
to hit him with a large flashlight,” a version disputed by
the officer. Jd. In neither version was there a “threat of
serious bodily injury.” The lack of such a threat did not
play a factor in the Court’s holding that a person has the
First Amendment right to challenge verbally police behav-
iors even if an officer is in fact interrupted in the execution
of his or her duty. The right to shout at an officer to follow
the Constitution cannot depend on whether the victim of
police illegality is going to be seriously hurt as opposed to
being moderately hurt. Thus, Instruction No. 5 violated
the First Amendment and the holding of Houston v. Hill,
supra. See also Gulliford v. Pierce County, 136 F.3d at
1348-50 (noting as accurate a proposed instruction stating
that the First Amendment protects right to challenge or
verbally oppose police activity so long as challenge does
not involve threat or fighting words).
In Washington courts, Ms. Dempére did not mount a
facial challenge to the Washington obstruction statute on
vagueness or overbreadth grounds. Rather, she challenged
Instruction No. 5, in addition to making the sufficiency
argument based on the First and Fourth Amendments.
However, the failure of the Washington courts to hold that
16
Instruction No. 5 was improper makes Washington’s
obstruction statute, RCW § 9A.76.020, unconstitutionally
vague and overbroad as it has been applied to Ms. Dem-
pére. See generally City of Chicago v. Morales, 527 U.S. at
74-83 (Scalia, J., dissenting) (discussing “as applied”
challenges).
Alternatively, if Washington Courts have construed
the statute to require that the victim of a police assault
actually face the threat of serious bodily injury before a
bystander can verbally intervene, see City of Chicago v.
Morales, 527 U.S. at 61, the statute is unconstitutional on
its face under Houston v. Hill, supra.
D. The Washington Courts Failed to Appreciate the
First Amendment Issues Involved.
In Ms. Dempére’s case, the Washington courts utterly
failed to analyze the First Amendment issues at stake. The
Washington Court of Appeals’ unpublished decision does
not cite or discuss Houston v. Hill, supra. App. lla-13a,
15a-17a. On direct appeal, the courts also ignored this
Court’s precedent. App. 45a-46a, 50a. Regarding the illegal
arrest of Mr. Garza, the decisions below completely avoid
the issue, incorrectly accusing Ms. Dempére of not citing
any authority to support the conclusion that Mr. Garza
was illegally arrested, App. 12a-13a, 21a, when in fact Ms.
Dempére thoroughly briefed this issue. App. 37a-41a, 47a-
49a.
As noted above, Ms. Dempére may not be “in custody”
for purposes of filing a federal writ of habeas corpus. The
only option left for her to obtain a remedy for the violation
17
of her First Amendment rights is review in this Court.
The decisions of the Washington courts conflict with this
Court’s First Amendment cases, as well as the decisions
from other state and federal courts. Review should be
granted under Rule 10(b) & (c).
7
v
CONCLUSION
For the foregoing reasons, this Court should grant the
petition for certiorari.
Respectfully submitted,
NEI M. Fox
Attorney for Petitioner
COHEN & IARIA
1008 Western Ave., Suite 302
Seattle, WA 98104
(206) 624-9694
July 25, 2005
* Other people who also have been charged with obstruction-type
offenses for verbally challenging illegal police behaviors are unlikely to
be “in custody” by the time they exhaust state remedies, and would also
be unlikely to go to federal court for habeas relief. Review in this Court
is the only option left to vindicate federal constitutional rights.
APPENDIX TABLE OF CONTENTS
Page
_ APPENDIX A, Washington Court of Appeals
GONE oss pvnionincsisciatnacadiniighn tii teptinipsisonecsraerinssvee App.
APPENDIX B, Order Denying Reconsideration,
Crate OF OUI riiiccics te nicinseibres io wvenevnniios es. App.
APPENDIX C, Washington Supreme Court, Ruling
ECU EG TET cic sisnks sprite ntahcctelindseseveiocsicanecaess App.
APPENDIX D, Order Denying Motion to Modify,
Washington Supreme Court.............cccsecsecceseseeenees App.
APPENDIX E, Judgment and Sentence, Tukwila
Rae CG assis iceesdkgrge tnt ni esccesiccontsenee App.
APPENDIX F, Amended Judgment and Sentence,
Tukwila Municipal Court ............:cccccccsscsercecereneeees App.
APPENDIX G, Instruction No. 5, Tukwila Munici-
APPENDIX H, Exceptions to Instruction No. 5,
Tukwila Municipal Court ...............ccccceceseseeeeseneeees App.
APPENDIX I, Opening Brief, Washington Court of
POND isis sis ccrats eee ia sin isnassiinidersss App.
APPENDIX J, Motion for Discretionary Review,
Washington Supreme Coutt..............:s:ccccceessseenees App.
APPENDIX K, Motion to Modify, Washington
Ser CIS sa caiacecernda pion iaptiativennrsciesiinvscceess App.
App. 1
APPENDIX A
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 52925-1-I
Title of Case: \ Personal Restraint Petition of Jackie
Dempere
File Date: 10/18/2004
SOURCE OF APPEAL
—— oe eee ee ee
Date first document (petition, etc) was filed in Court of
Appeals: 08/28/2003
JUDGES
Ronald E. Cox
Susan R. Agid
William W. Baker
COUNSEL OF RECORD
Counsel for Petitioner(s)
Neil Martin Fox
Cohen & Ilaria
1425 Western Ave Ste 108
Seattle, WA 98101
App. 2
Counsel for Respondent(s)
Kerri Ann Bergland
Kenyon Dornay Marshall PLLC
11 Front St S
Issaquah, WA 98027-3820
Sandra S. Meadowcroft
Kenyon Disend PLLC
11 Front StS
Issaquah, WA 98027-3820
IN THE COURT OF APPEALS
FOR THE STATE OF WASHINGTON
IN THE MATTER OF THE ) No. 52925-1-I
PERSONAL RESTRAINT
OF: DIVISION ONE
JACKIE DEMPERE, ! UNPUBLISHED OPINION
Petitioner. ) FILED:
Per Curiam. Jackie Dempere has filed a personal
restraint petition challenging her conviction in Tukwila
Municipal Court for one count of obstructing a law en-
forcement officer. But in order to obtain collateral relief by
means of a personal restraint petition, Dempere must
demonstrate either an error of constitutional magnitude
that gives rise to actual prejudice or a nonconstitutional
error that inherently results in a “complete miscarriage of
justice.” In re Personal Restraint of Cook, 114 Wn.2d 802,
813, 792 P.2d 506 (1990). Because she has failed to satisfy
this burden, we deny the petition.
App. 3
FACTS
Dempere was charged with obstructing a law en-
forcement officer in Tukwila Municipal Court following an
incident on October 29, 1998, in which she allegedly
interfered with several Tukwila police officers who had
responded to a possible gang-related incident. Initially, the
trial judge was the Hon. Peter Lukevich. Following a pre-
trial hearing on February 16, 1999, Dempere filed a
complaint against Judge Lukevich with the Commission
on Judicial Conduct. As a result of the complaint, Judge
Lukevich signed an agreed order of admonishment, stipu-
lating that he had used “an arguably harsh and inappro-
priate tone and manner of interaction” with Dempere at
the pre-trial hearing. Judge Lukevich later recused him-
self from the case just before trial.
The case went to trial on October 29, 1999, but it
ended in a mistrial. The City then dismissed the charge
without prejudice and refiled it on the same day. When the
case was retried in May 2000, the jury found Dempere
guilty as charged. The Superior Court affirmed Dempere’s
conviction on a RALJ appeal, and this court denied discre-
tionary review. After the Supreme Court also denied
review, Dempere filed this personal restraint petition.
At trial, the City presented evidence that Tukwila
police officers were sent to a possible fight at an apart-
ment building on the evening of October 29, 1998. Officer
James Syler, the first officer on the scene, encountered a
large group of people milling around. While attempting to
ascertain what had happened, Officer Syler encountered
one man who said he had called 911. Because the man was
“a little hysterical,” Syler placed him in-handcuffs.
App. 4
At this point, Syler noticed Officer Craig Boyd strug-
gling with another man a short distance away. From prior
encounters, Officer Syler recognized the man as Ramon
Garza. According to Syler, Garza had been violent during
prior arrests and had assaulted an officer.
Officer Syler left the apparent victim and went over to
assist Officer Boyd. Garza was yelling and cursing, but
they eventually forced him to the ground and handcuffed
him. Garza continued to struggle and kick, and it tock at
least three officers to restrain him and move him into a
patrol car. Because Garza continued to kick in the patrol
car, the officers eventually used pepper spray to subdue
him.
While Officer Syler was assisting with Garza, he
noticed Dempere cross the street and approach the offi-
cers. Syler told Dempere that she would have to move back
across the street. Dempere moved back across the street,
but approached the officers a short time later, coming
within about five feet. Officer Syler, who saw that Dem-
pere was holding a screwdriver, again told her that she
needed to go back across the street. Dempere responded
that she had not done anything wrong and that she did not
have to comply. But she then moved back across the street.
A short time later, Dempere once again crossed the street
and approached the officers who were attempting to
restrain Garza. According to Officer Syler, Dempere
became angry at this point and told him that “this is
America” and she “can do what she wants to do.” When
Dempere refused to comply with repeated orders to move
away, Officer Syler arrested her for obstruction. Syler
testified that he had to break away repeatedly from
assisting with Garza and investigating the reported
disturbance because of Dempere’s interference.
App. 5
Officers Shawn Robertson, Craig Boyd, and James
Hicks generally corroborated Officer Syler’s account.
Officer Boyd testified that when he first responded to the
reported disturbance, Ramon Garza had approached him
with his hands in the pockets of his bulky jacket. Boyd
recognized Garza from prior encounters with the police,
including an assault, so he ordered Garza to remove his
hands from his pockets. Garza refused and became bellig-
erent. As the two men struggled, Garza went “out-of-
control” and several officers tried to subdue him.
Officer Robertson testified that Dempere approached
as he was attempting to frisk Garza for weapons. Dempere
refused Robertson’s repeated order to stay away from the
officers. At some point, Robertson heard Dempere begin to
speak Spanish with Garza.
Garza testified that on the evening of October 29,
1998, he had been returning from a store when he stopped
to help a man who was being harassed. As Garza began
walking home, two police cars drove up and the officers
indicated that they needed to find out if he had any
weapons. When he told the officers he did not have any
weapons, they threw him to the ground. According to
Garza, the officers punched him during the resulting
struggle and gave him a black eye. Garza denied that he
resisted in any manner. He also denied that he kept his
hands in his pockets. Garza did not file a complaint about
being punched in the eye.
Garza acknowledged that he had prior convictions for
burglary and forgery. He admitted that he had pleaded
guilty to resisting arrest and obstruction on October 30,
1998, but explained that he was not guilty and had en-
tered a plea only to get out of jail earlier.
App. 6
Dempere testified that she was working on the door
locks of her house when she heard a loud scream nearby.
She went out onto the street, still holding the screwdriver
that she was using on the locks, and saw a man - later
identified as Garza — on the ground, surrounded by three
police officers. When Dempere asked what was happening,
an officer told her to move back. As Dempere complied
with the order and started moving back, she was able to
see that Garza was handcuffed and that one of the officers
was using a knee to hold Garza’s head down.
Dempere was concerned that Garza would be injured
or paralyzed and twice told the officers that they were
hurting him as she moved back. One of the officers then
approached her, walked her to a patrol car, and arrested
her. Dempere maintained that she obeyed the order to
move back and that she was more than 15 feet away from
Garza when the officer approached her. She denied speak-
ing to Garza in Spanish and explained she only wanted to
let the officers know that they were being watched.
Officer Hicks testified on rebuttal that he did not
punch Garza or give him a black eye. He maintained that
Garza would not have been booked into the Regional
Justice Center following his arrest if he had been injured
because regulations require that he receive medical
assistance.
The jury found Dempere guilty as charged. She
originally received a suspended sentence. The sentence
was eventually modified to eliminate any detention and
community service time and to require only the payment
of a fine.
App. 7
ANALYSIS
The City initially argues that the imposition of a fine
following Dempere’s conviction does not constitute “re-
straint” and that this court should therefore not address
the merits of Dempere’s claims. Under RAP 16.4(a), an
appellate court will grant relief by means of a personal
restraint petition only if the petitioner can demonstrate
unlawful “restraint.” For purposes of RAP 16.4, a peti-
tioner is under “restraint”
if the petitioner has limited freedom because of a
court decision in a civil or criminal proceeding,
the petitioner is confined, the petitioner is sub-
ject to imminent confinement, or the petitioner is
under some other disability resulting from a
judgment or sentence in a criminal case.
(Italics ours.) RAP 16.4(b). The City maintains that the
“restraint” requirement in RAP 16.4 should be construed. as
analogous to the “in custody” requirement for federal habeas
corpus relief. See Williamson v. Gregoire, 151 F.3d 1180 (9th
Cir. 1998) (imposition of a fine and other “collateral” conse-
quences of a conviction do not satisfy “in custody” require-
ments of federal habeas corpus relief under 28 U.S.C. sec.
2241(c)(3)).
But the federal requirements are based on statutory
language that is not comparable to RAP 16.4(b). The City
fails to address the language in RAP 16.4(b), which
broadly defines restraint to include “some other disability
resulting from a judgment or sentence in a criminal cas2.”
This provision has been construed to encompass the
stigma associated with an unlawful conviction, even if
there is no actual confinement. See Jn re Personal Re-
straint of Powell, 92 Wn.2d 882, 887-88, 602 P.2d 711
(1979). Accordingly, we reject the City’s contention that
App. 8
-Dempere is not under restraint for purposes of RAP
16.4(b).
Dempere first contends that Judge Lukevich, who
later recused himself from the case, violated her right to
due process and her right to counsel at a pre-trial hearing
on February 16, 1999, when he “forced” her to sign a speedy
trial waiver. Dempere maintains that the waiver was
therefore invalid and that the speedy trial period under
CrRLJ 3.3 expired on March 31, 1999, before the charge
was dismissed and refiled. But Dempere has provided no
evidentiary support for her conclusory assertions.
The transcript of the hearing indicates that she
appeared in court on February 16, 1999, without an
attorney. Dempere’s prior attorney had withdrawn on
January 12, 1999, and she attempted to deliver to the
judge a notice of appearance from her new attorney, who
was not present, with an incorrect cause number on it.
Dempere also attempted to make what appeared to be a
pro se discovery request. She eventually signed a speedy
trial waiver to May 30, 1999.
The waiver that Dempere signed recited, among other
things, that she had the right to be tried within 90 days of
her arraignment and that unless she waived that right,
the case would be dismissed with prejudice if the trial did
not occur during that period. During the course of the
hearing, Dempere responded “that will be fine” when
asked if she wanted a continuance. She also expressly
acknowledged that she had executed speedy trial waivers
before and that she understood what the waiver was. The
record contains no declaration from Dempere or any other
evidence that would support an inference that the judge
coerced her into signing the waiver against her will. See In
App. 9
re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d ©
1086 (1992).
In sum, Dempere has failed to make any showing that
the trial judge’s inappropriate behavior during the hearing
“forced” her to sign the speedy trial waiver or otherwise
violated her due process rights or right to counsel. It
should be noted that at the time Dempere signed the
waiver on February 16, 1999, the speedy trial expiration
date was March 31, 1999: The record shows that Dempere
appeared in court with new counsel on March 16, 1999,
and executed another speedy trial waiver to June 30, 1999.
Petitioner does not allege that this (or any subsequent)
waiver was coerced or otherwise invalid.’ Consequently,
petitioner has failed to identify any basis for relief.
Dempere next contends that the trial court violated
- her constitutional right to a unanimous jury when it failed
to give a unanimity instruction. When the State presents
evidence of multiple distinct criminal acts, any one of
which could form the basis for a single charge, the State
must either “elect” the specific incident upon which it
relies for conviction or the jury must be instructed that all
members must agree that the same criminal act has been
proven beyond a reasonable doubt. State v. Camarillo, 115
Wn.2d 60, 63-64, 794 P.2d 850 (1990). The failure to give a
unanimity instruction when required is a constitutional
error that is not harmless if a rational trier of fact could
have had a reasonable doubt as to whether each incident
* Because we have rejected Dempere’s arguments on their merits,
we do not address the City’s claim that Dempere cannot challenge the
voluntariness of the waiver because the case was subsequently dis-
missed without prejudice. See State v. Taylor, 150 Wn.2d 599, 80 P.3d
605 (2003).
App. 10
established the crime. State v. Kitchen, 110 Wn.2d 403,
411, 756 P.2d 105 (1988).
Under RCW 9A.76.020(1), the City was required to
prove, among other things, that Dempere willfully hin-
dered, delayed, or obstructed “any” law enforcement
officer. As set forth in Instruction No. 4, however, the City
was required to prove that Dempere obstructed “a law
enforcement officer in the discharge of the law enforce-
ment officer’s official powers or duties,” that she knew “the
law enforcement officer” was discharging official duties at
the time, and that she knew her conduct would obstruct
“the law enforcement officer.” (Emphasis ours.)
Dempere maintains that under these instructions, the
jury was required to find that one specific officer — “the”
law enforcement officer ~ was a “victim” of the obstruction.
See State v. Stephens, 93 Wn.2d 186, 191, 607 P2d 304
(1980) (assault instruction that alleged one offense against
two named victims in the disjunctive violated constitu-
tional right to jury unanimity). She reasons that because
all four testifying officers performed different roles and
described the incident from different perspectives, the
jurors might have disagreed about which officer was
obstructed.
In a direct appeal, constitutional error is presumed
prejudicial, and the State bears the burden of demonstrat-
ing that the error was harmless beyond a reasonable
doubt. Jn re Personal Restraint of Benn, 134 Wn.2d 868,
940, 952 P2d 116 (1998). But because this is a personal
restraint petition, Dempere bears the burden of demon-
strating constitutional error that worked to her “actual
and substantial prejudice, even if the error could not have
been considered harmless beyond a reasonable doubt on
App. 11
direct review.” In re Personal Restraint of Smith, 117 Wn.
App. 846, 859, 73 P.3d 386 (2003).
The evidence was essentially uncontroverted that the
officers responded to a reported disturbance or possible
fight at an apartment building. Upon arriving, all four
officers initially attempted to ascertain what had hap-
pened, before becoming involved in the altercation with
Garza. Although Dempere correctly states that the officers
performed different roles, all four officers were drawn
away from investigating the initial report and were
working together in an effort to restrain and arrest Garza
when the alleged obstruction occurred. Under the circum-
stances, there was no reasonable likelihood that a rational
trier of fact could have rejected Dempere’s testimony
without also finding that any obstruction of one officer
necessarily obstructed all four officers who were involved
in the same ongoing investigation. Consequently, Dempere
has failed to demonstrate prejudice even if we assume that
Instruction No. 4 required the jury to find that she ob-
structed a specific officer or “victim.” See State v. Kitcnen,
110 Wn.2d at 413-14 (petitioner failed tc demonstrate
actual prejudice resulting from failure to give unanimity
instruction).
Dempere next contends that the evidence was insuffi-
cient to support her conviction for obstructing a law
enforcement officer. Tukwila Municipal Code 8.60.010 has
adopted RCW 9A.76.020(1), which provides:
A person is guilty of obstructing a law en-
forcement officer if the person willfully hinders,
delays, or obstructs any law enforcement officer
in the discharge of his or her official powers or
duties.
App. 12
Dempere argues that because the police officers first
harassed and then unlawfully detained Garza, the evi-
dence failed to establish that the officers were discharging
their official powers or duties. She further argues that she
was denied effective assistance when counsel failed to
challenge the sufficiency of the evidence on appeal.
The evidence established that Tukwila police officers
were investigating a reported disturbance or possible fight
when a man, later identified as Ramon Garza, approached
one of the officers. Garza, who had previously threatened
and assaulted an officer, refused to take his hands out of
his bulky coat pockets. Garza then got into an altercation
with the officers.
While the officers attempted to subdue Garza, Dem-
pere approached them, holding a screwdriver, and ques-
tioned their treatment of Garza. Despite being repeatedly
-told by the officers to stay on the other side of the street,
Dempere approached the officers several times_as they
struggled with Garza. When she refused to back off and
continued walking toward the officers, they arrested her.
The officers testified that Dempere’s actions interrupted
their attempts to restrain Garza and to investigate the
initial reported disturbance.
Viewed in the light most favorable to the City, these
circumstances were sufficient to permit the jury to find
beyond a reasonable doubt that Dempere willfully hin-
dered, delayed, or obstructed the officers in the discharge
of their official duties and that the officers had lawfully
detained Garza. See State v. Ware, 111 Wn. App. 738, 744,
46 P.3d 280 (2002) (evidence that defendant, despite warn-
ings, repeatedly approached and challenged uniformed
officers who were attempting to arrest another suspect was
App. 13
sufficient to support conviction for obstruction). Dempere
has not cited any authority to support her conclusory
assertion that Garza was illegally detained and arrested
as a matter of law. Because the evidence was sufficient to
support Dempere’s conviction, her counsel was not defi-
cient for failing to challenge the sufficiency of the evidence
on direct appeal.
Dempere next contends that her right to due process
was violated when the deputy prosecutor used an “un-
counselled” guilty plea to impeach Garza. It is undisputed
that Garza pleaded guilty to both obstruction and resisting
arrest for the incident involving Dempere. Garza acknow]l-
edged during his testimony that he had pleaded guilty to
obstruction, but initially had difficulty recalling whether
he had also pleaded guilty to resisting arrest. For this
reason, the deputy prosecutor, without objection, showed
Garza a copy of his statement on plea of guilty. Garza then
acknowledged that he had also pleaded guilty to resisting
arrest. When Garza then explained that he had done
nothing wrong and had pleaded guilty only in order to get
out of jail earlier, the deputy prosecutor questioned him
further about the guilty plea.
Dempere relies on the general proposition that a prior
conviction is not admissible for purposes of impeachment
or enhancement of punishment if the defendant was not
afforded counsel or did not make a valid waiver of counsel.
See State v. Weygandt, 20 Wn. App. 599, 607, 581 P.2d
1376 (1978). But the mere fact that Garza was not repre-
sented by counsel at his guilty plea does not automatically
invalidate his conviction, as Garza had a constitutional
right to proceed pro se. The statement of defendant on plea
of guilty Garza signed recites that he was informed and
fully understood that he had a right to counsel. Because
App. 14
Dempere has not submitted any evidence suggesting an
invalid waiver, she has failed to sustain her burden of
demonstrating actual prejudice for purposes of a personal
restraint petition. Dempere next contends that the deputy
prosecutor committed reversible misconduct during closing
argument by making a “golden rule” argument and by
informing the jury that it was “Officer Memorial Week for
officers dying in the line of duty.” Dempere also argues
that her attorney was ineffective for failing to object to the
remarks and for failing to raise the issue on direct appeal.
During closing argument, the deputy prosecutor
stated:
And I ask you as jurors to put yourself in the
shoes of these police officers in what you per-
ceived, how you reacted and your heightened
sense of awareness.
RP 770. Dempere argues that this was an impermissible
“golden rule” argument.
“(Wjhether made by plaintiff’s counsel or defendant’s
counsel, an argument in a civil case is improper which
appeals to the jurors to place themselves in the position of
a litigant and to decide the case based upon what they
would then want under the circumstances.” Adkins uv.
Aluminum Co. of Am., 110 Wn.2d 128, 140, 750 P.2d 1257
(1988). Such a “golden rule” argument is improper to the
extent that it encourages the jury to depart from neutral-
ity and to decide the case “on the basis of personal interest
and bias rather than on the evidence.” Adkins, 110 Wn.2d
at 139. Although the Supreme Court has approved a
“golden rule” argument in the sentencing phase of a
capital trial, it expressly declined to address the propriety
of such arguments during the guilt phase. State v. Rice,
App. 15
110 Wn.2d 577, 607, 757 P.2d 889 (1988). Other courts
have applied the rule to criminal cases. See Gomez uv.
State, 751 So.2d 630, 632 (Fla. App. 1999); Hayes v. State,
512 S.E.2d 294, 297 (Ga. App. 1999); State v. Carlson, 559
N.W.2d 802, 812 (N.D. 1997); United State v. Kirvan, 997
F.2d 963 (1st Cir. 1993).
In this case, the deputy prosecutor’s suggestion to the
jury to put themselves in the “shoes” of the police officers
occurred several times, but mainly during a summary of
the officers’ testimony about their initial encounter with
Garza, before Dempere appeared at the scene. The com-
ments were part of the deputy prosecutor’s attempt to
draw reasonable inferences from the evidence rather than
an attempt to encourage the jury to decide the case on the
basis of personal interest and bias. Viewed in the context
of the total argument and the issues in the case, there was
no significant likelihood that the comments, even if im-
proper, had any effect on the verdict. See State v. Pirtle,
127 Wn.2d 628, 672, 904 P.2d 245 (1996).
The deputy prosecutor’s reference to “Officer Memo-
rial Week for officers dying in the line of duty” occurred
only once. The deputy prosecutor did not repeat the
remark or ask the jurors to draw further inferences. Under
the circumstances, we cannot say that the alleged miscon-
duct had any effect on the outcome of the trial.
Dempere next contends that the jury instructions did
not adequately protect her first amendment rights to
challenge police misconduct. But it is not clear whether this
contention is directed solely to an instruction given by the
trial court or to the trial court’s failure to give one of her
proposed instructions. In any event, in a personal restraint
petition, this court will not review issues previously raised
App. 16
and rejected in a direct appeal unless the. petitioner can
demonstrate that the “ends of justice would be served by
reexamining the issue.” Jn re Personal Restraint of Gentry,
137 Wn.2d 378, 388, 972 P.2d 1250 (1999). A petitioner can
satisfy this burden “by showing an intervening change in
the law ‘or some other justification for having failed to
raise a crucial point or argument in the prior applica-
tion.’” In re Gentry, 137 Wn.2d at 388 (quoting Jn re
Personal Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d
755 (1986)).
In this case, Dempere concedes that the instructional
issues were raised and rejected in her direct appeal. On,
RALJ appeal, the superior court conciuded that Instruc-
tion No. 5 was a proper statement of the law and did not
prevent Dempere from arguing her theory of the case’ and
that the trial court did not err in failing to give Dempere’s
proposed instruction.* In her petition, Dempere presents
no argument indicating that the court’s analysis was
flawed. Nor has she offered any meaningful legal argu-
ment to support her assertion that the absence of a tran-
script of portions of Garza’s testimony prejudiced the
appellate process. And she has not established that a judge
of this court should have recused himself from the panel
that declined to modify the commissioner’s ruling denying
discretionary review. Consequently, Dempere has failed to
* Instruction No. 5 provided: “Absent a threat of serious bodily
injury to the arrestee, a person is prohibited from interfering with an
arrest made by a uniformed officer.”
* The trial court declined to give the following instruction Dempere
proposed: “Under the circumstances of this case, you are instructed that
words alone are not sufficient to establish commission of the crime of
obstructing a law enforcement officer.”
App. 17
make any showing that the “ends of justice” require a
reexamination of the instructional issues.
Finally, Dempere contends she is entitled to a refer-
ence hearing for issues arising under Brady v. Maryland,
373 U.S. 83, 10 L. ed 2d 215, 83 S. Ct. 1194 (1963). She
argues she should be permitted to discover evidence
indicating misconduct in other cases by the Tukwila
officers who were involved in Garza’s arrest. In support of
this contention, Dempere has submitted complaint logs
(with the officers’ names blacked out) that indicate the
general nature of complaints made against the four
officers and whether the complaints were sustained or not.
Dempere maintains that the City was required to disclose
this “exculpatory evidence” of “horrible misconduct” prior
to trial and during the course of her direct appeal.
But Dempere has made no showing that the evidence
of complaints against the four officers — including allega-
tions of poor demeanor, use of excessive force, and one
instance of “improper medical treatment” — would have
affected her conviction. Although some complaints were
sustained, others were not. Dempere also suggests the
evidence would have supported Garza’s claim that the
officers used excessive force. But she has not demon-
strated that allegations that officers used excessive force
on other occasions would have been admissible in her case.
Moreover, Dempere was permitted to cross-examine the
officers extensively on the nature of the force they used on
Garza, and she testified fully about her claims that the
force used was improper. Under the circumstances, Dem-
pere has failed to demonstrate actual and substantial
prejudice arising from the alleged error.
Petition denied.
For the court:
App. 19
APPENDIX B
IN THE COURT OF APPEALS
OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the )
Personal Restraint of; ) No. 52925-1-I
JACKIE DEMPERE, 2 ORDER DENYING MOTION
a ) FOR RECONSIDERATION
Petitioner. )
(Filed Dec. 8, 2004)
: Petitioner, Jackie Dempere, having filed a motion for
reconsideration of the opinion filed October 18, 2004, and
the court having determined that said motion should be
denied; Now, therefore, it is hereby
ORDERED that petitioner’s motion for reconsidera-
tion is denied.
DATED this 8th day of December 2004.
FOR THE COURT:
/s/ Agid, J.
Presiding Judge
App. 20
APPENDIX C
THE SUPREME COURT OF WASHINGTON
In re the Personal Restraifit |—
Petition of No. 76482-4
JACKIE DEMPERE, RULING DENYING REVIEW
(Filed Feb. 24, 2005)
Petitioner.
Jackie Dempere was convicted in Tukwila Municipal
Court of obstructing a police officer. The King County
Superior Court affirmed the conviction and both Division
One of the Court of Appeals and this court denied discre-
tionary review. Ms. Dempere timely filed a personal
restraint petition in the Court of Appeals. In an unpub-
lished, per curiam opinion, the court denied the petition.
Ms. Dempere now seeks this court’s discretionary review.
RAP 16.14(c); RAP 13.5.
To obtain relief by personal restraint petition, Ms.
Dempere must show that she was actually and substan-
tially prejudiced by constitutional error or that nonconsti-
tutional error inherently resulted in a complete
miscarriage of justice. In re Lord, 123 Wn.2d 296, 303, 868
P.2d 835 (1994). And to obtain this court’s review, Ms.
Dempere must demonstrate that the Court of Appeals
obviously or probably erred or significantly departed from
the usual course of proceedings. RAP 13.5(b). She meets
none of these burdens.
Ms. Dempere first argues that the original trial judge
deprived her of her right to counsel and violated her due
process rights by forcing her, without counse’, to waive her
rule-based speedy trial deadline. But Ms._Dempere ap-
peared at a pretrial hearing without counsel, seeking to
App. 21
present a notice of appearance on her new attorney's
behalf (captioned with the wrong cause number) and
attempting to make what appeared to be a discovery
request. The judge reasonably asked her if she wanted a
continuance so that her attorney could make a proper
appearance and make the appropriate discovery requests.
She then signed a waiver of the speedy trial deadline.
Although the judge spoke in a harsh and inappropriate
manner toward Ms. Dempere, leading to his admonish-
ment, the Court of Appeals correctly concluded that there
was no evidence the judge forced Ms. Dempere to waive
her speedy trial rights.
Ms. Dempere next contends that the trial court erred
in failing to give a unanimity instruction in the face of
evidence that she may have obstructed any of four police
officers at the scene. But Ms. Dempere does not show that
the Court of Appeals erred in determining that her ob-
struction of any one officer necessarily obstructed all] four
officers. In connection with this claim, Ms. Dempere
argues that, because the State bears the burden on direct
appeal of showing the error was harmless, appellate
counsel was prejudicially ineffective in failing to raise this
issue on appeal. But Ms. Dempere does not show that the
unanimity claim would have been any more successful on
direct appeal. See Lord, 123 Wn.2d at 314 (must show
merit of underlying legal issue that should have been
raised on appeal and then demonstrate prejudice).
Next, Ms. Dempere contends that the evidence of guilt
was insufficient. But she bases her argument on her
assertion that the arrest with which she interfered was
unlawful. She does not show that the arrest was necessar-
ily unlawful.
App. 22
Ms. Dempere next claims that her due process rights
were violated in connection with a defense witness. The
person whose arrest Ms. Dempere obstructed later pleaded
guilty to obstruction and resisting arrest. While testifying in
Ms. Dempere’s defense, he could not at first recall whether ~
he had pleaded guilty to resisting arrest. The prosecutor
therefore presented him on cross-examination with his guilty
plea statement. Ms. Dempere urges that a prior guilty plea is
inadmissible for impeachment purposes if the defendant was
not afforded counsel or did not validly waive counsel. See
State v. Weygandt, 20 Wn. App. 599, 607, 581 P.2d 1376.
(1978). This witness was not represented by counsel in his
guilty plea. But Ms. Dempere fails to show that he did not
validly waive his right to counsel. Nor, in any event, does she
demonstrate actual and substantial prejudice.
Ms. Dempere also argues that the prosecutor commit-
ted misconduct in closing argument by suggesting to the
jurors that they try to view the situation from the police
officers’ perspective. Ms. Dempere contends that this was
an improper “golden rule” argument (telling the jurors to
consider what result they would want if they were one of
the litigants). But she does not show the Court of Appeals
obviously or probably erred in holding that, under totality
of the circumstances, there was no significant likelihood
that these remarks, even if improper, affected the verdict.
Ms. Dempere next contends that the trial court
violated her First Amendment rights by refusing to in-
struct the jury that words alone are insufficient to estab-
lish the crime of obstructing a police officer. But the Court
of Appeals rejected this argument on direct appeal, and
here it found no reason in the interests of justice to reex-
amine the issue. See Lord, 123 Wn.2d at 303. Ms. Dempere
does not demonstrate otherwise.
App. 23
Finally, Ms. Dempere argues that the Court of Ap-
peals should have ordered a reference hearing on the
failure to disclose evidence of complaints against the
officers involved in this case. But again, Ms. Dempere fails
to show that the Court of Appeals obviously or probably
erred in its treatment of this issue, or that any error
actually and substantially prejudiced her or resulted in a
complete miscarriage of justice.
In sum, Ms. Dempere does not demonstrate that the
Court of Appeals decision merits this court’s review.
Accordingly, the motion for discretionary review is denied.
/s/ Geoffrey Crooks
COMMISSIONER
February 24, 2005
App. 24
APPENDIX D
THE SUPREME COURT OF WASHINGTON
Personal Restraint Petition of ) ORDER
JACKIE DEMPERE, No. 76482-4
Petitioner. ) C/A No. 52925-1-I
(Filed May 3, 2005)
Department II of the Court, composed of Chief Justice
Alexander and Justices Madsen, Bridge, Owens and J. M.
Johnson, considered this matter at its May 3, 2005, Motion
Calendar and unanimously agreed that the following order
be entered.
IT IS ORDERED:
That the Petitioner’s Motion to Modify the Commis-
sioner’s Ruling is denied.
DATED at Olympia, Washington this 3rd day of May,
2005.
For the Court
/s/ Gerry L. Alexander
CHIEF JUSTICE
App. 25
APPENDIX E
IN THE MUNICIPAL COURT FOR THE
- CITY OF TUKWILA, WASHINGTON
CITY OF TUKWILA. ) | CAUSE NO.
Plaintiff, ) CR27909A & &
vs
Dempere, Jackie L. )
)
Defendant ) JUDGEMENT AND SENTENCE
The above named defendant having been found
guilty and now appearing for sentencing, the Court does
hereby make and enter the following JUDGEMENT,
SENTENCE, AND ORDER:
COUNT I: Upon the charge of Obstruct Justice, the
defendant is sentenced to 365 days in jail,
with 335 days suspended for a period of 0 1
year, K 2 years and/or; pay a fine in the
amount of $5000 with $4400 suspended for a
period of (1) 1 year, & 2 years.
COUNT II: Upon the charge of 3 , the defen-
dant is sentenced to: days in jail,
with days suspended for a period of
0) 1 year, O 2 years and/or; pay a fine in the
amount of $ with $ suspended
for a period of 0 1 year, DI 2 years.
COUNT III: Upon the charge of , the
defendant is sentenced to: days in
jail, with days suspended for a pe-
riod of (1 year, () 2 years and/or; pay a
fine in the amount of $ with $
suspended for a period of D0 1 year, 0 2 years.
App. 26
ALL SUSPENSIONS OF JAIL TIME AND/OR
FINES ARE CONDITIONED DURING THE
FULL TERM OF THIS SENTENCE UPON
FULL AND EXACT COMPLIANCE WITH
THE FOLLOWING CONDITIONS:
Defendant shall:
1. (X) Have no violations of state, local or federal
criminal laws, or traffic laws, other than minor
infractions.
2. (X) Notify this Court of any change in residence or
mailing address within one business day of
such change becoming effective.
3. (X) Not drive without a valid driver’s license and
insurance or have any alcohol-related offenses.
4. ( ) Complete a drug and alcohol evaluation within
days and file proof of same with Court,
and complete a follow-up treatment as recom-
mended.
5. ( ) Complete Driver Improvement School within
days and file proof of same with Court.
6. ( ) Complete ADIS within
proof of completion with Court.
7. ( ) Attend AA/NA meetings times weekly
for months or as recommended by treat-
ment agency and file proof of same with Court.
days and file
8. ( ) Attend consumer awareness class (CAP) within
days anid file proof of same with Court.
9. ( ) Complete certified DV program of not less than
12 months in duration within days and
file proof of same with court.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
cy
( )
6)
cy
cg
(X)
(X)
Be
c7
App. 27
Complete Anger Management course of
hours and file proof of same with Court.
Complete HIV test within 0 30 days, 0 60 days,
2 90 days, and file proof of same with Court.
Defendant is eligible for DO Electronic Home
Monitoring (EHM) or 0) Work Release, which
shall commence NLT ___. If defendant is
deemed ineligible for EHM and/or work release,
confinement shall commence at the RJC NLT
. EHM shall be performed through the
Renton Jail.
Defendant shall forfeit all weapons related to
this incident within hours to the Tukwila
Police Dept.
Defendant shall forfeit all firearms in his/her
possession within hours to the Tukwila
Police Dept.
Pay $ to the City of Tukwila for public
defense screening costs.
Pay probation fees of 0 $50 per year, or & $100
per-year total, or 0 $ per month for_
months to the Tukwila Municipal Court.
Perform 120 hours of community service within
24 months days, and file proof of same with
Court.
Abide by terms of a 0) S.0.A.P. Order, 0 S.O.D.A.
Order, (1) No Contact Order, issued on the date of
sentencing.
Pay restitution in the amount of to the
Tukwila Municipal court who shall forward
payment to the victim.
App. 28
20. ( ) Sentence of defendant is deferred for
conditioned upon full and exact compliance with
the above conditions for the full term of this sen-
tence.
21. ( ) Total amount of cost/fines upon deferred sen-
tence: 0 $ due by or El time pay is
authorized at 0 $50 per month, or 0) $ per
month.
22. (X) Appear for review at such time as directed by the
Court.
/s/ Jackie L. Dempere /s/ Albert Raines 5/21/00
Defendant’s signature Judge’s Signature Date
acknowledges receipt
and understanding of
this order
NOTE: A failure to meet any of the conditions checked
off on this order may result in the filing of additional
criminal charges, the issuance of a bench warrant for your
immediate arrest, and the revocation of your suspended or
deferred sentence. If the suspended or deferred sentence is
revoked because of a failure to meet the said conditions,
you are subject to the imposition of the maximum jail
sentence and fine permitted by law or such portion thereof
as the Court deems appropriate.
App. 29
APPENDIX F
IN THE MUNICIPAL COURT FOR THE
CITY OF TUKWILA, WASHINGTON
CITY OF TUKWILA. ) CAUSE NO.
Plaintiff, ) CR2”7909A & &
vs }
JACKIE DEMPERE _ )
)
Defendant ) JUDGEMENT AND SENTENCE
The above named defendant having been found
guilty and now appearing for sentencing, the Court does
hereby make and enter the following JUDGEMENT,
SENTENCE, AND ORDER:
COUNT I: Upon the charge of Obstruct Justice, the
defendant is sentenced to: 1 days in jail,
with days suspended for a period of
0 1 year, 0 2 years and/or; pay a fine in the
amount of $600 with $ suspended for
a period of 0 1 year, 0 2 years.
COUNT II: Upon the charge of , the defen-
dant is sentenced to: days in jail,
with days suspended for a period of
C) 1 year, 0 2 years and/or; pay a fine in the
amount of $ with $ suspended
for a period of 0) 1 year, 0) 2 years.
COUNT III: Upon the charge of , the
defendant is sentenced to: days in
jail, with days suspended for a pe-
riod of (1 1 year, 0 2 years and/or; pay a
fine in the amount of $ with $
suspended for a period of O) 1 year, D 2 years.
App. 30
ALL SUSPENSIONS OF JAIL TIME AND/OR
FINES ARE CONDITIONED DURING THE
FULL TERM OF THIS SENTENCE UPON
FULL AND EXACT COMPLIANCE WITH
THE FOLLOWING CONDITIONS:
Defendant shall:
1. ( ) Have no violations of state, local or federal
criminal laws, or traffic laws, other than minor
infractions.
2. ( ) Notify this Court of any change in residence or
mailing address within one business day of
such change becoming effective.
3. ( ) Not drive without a valid driver’s license and
insurance or have any alcohol-related offenses.
4. ( ) Complete a drug and alcohol evaluation within
days and file proof of same with Court,
and complete a follow-up treatment as recom-
mended.
5. ( ) Complete Driver Improvement School within
days and file proof of same with Court.
6. ( ) Complete ADIS within
proof of completion with Court.
days and file
7. ( ) Attend AA/NA meetings times weekly
for months or as recommended by treat-
ment agency and file proof of same with Court.
8. ( ) Attend consumer awareness class (CAP) within
days and file proof of same with Court.
9. ( ) Complete certified DV program of not less than
~ 12 months in duration within days and
file proof of same with court.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
App. 31
Complete Anger Management course of
hours and file proof of same with Court.
Complete HIV test within 0 30 days, 0 60 days,
OC) 90 days, and file proof of same with Court.
Defendant is eligible for C Electronic Home
Monitoring (EHM) or O Work Release, which
shall commence NLT . If defendant is
deemed ineligible for EHM and/or work release,
confinement shall commence at the RJC NLT
_________. EHM shall be performed through the
Renton Jail.
Defendant shall forfeit all weapons related to
this incident within hours to the Tukwila
Police Dept.
Defendant shall forfeit all firearms in his/her
possession within hours to the Tukwila
Police Dept.
Pay $ to the City of Tukwila for public
defense screening costs.
Pay probation fees of 0 $50 per year, or CJ $100
month total, or 01 $ per month for
months to the Tukwila Municipal Court.
Perform hours of community service within
days, and file proof of same with Court.
Abide by terms of a 0 S.0.A.P. Order, 0 S.0.DA.
Order, 0 No Contact Order, issued on the date of
sentencing.
Pay restitution in the amount of to the
Tukwila Municipal court who shall forward
payment to the victim.
Sentence of defendant is deferred for
conditioned upon full and exact compliance with
App. 32
the above conditions for the full term of this sen-
tence.
21. ( ) Total amount of cost/fines upon deferred sen-
tence: 0) $ due by , or OC) time pay is
authorized at 0 $50 per month, or 0 $ per
month.
22. ( ) Appear for review at such time as directed by the
Court.
/s/ Jackie L. Dempere /s/ Albert Raines 1/14/03
Defendant’s signature Judge's Signature Date
acknowledges receipt
and understanding of
this order
NOTE: A failure to meet any of the conditions checked
off on this order may result in the filing of additional
criminal charges, the issuance of a bench warrant for your
immediate arrest, and the revocation of your suspended or
deferred sentence. If the suspended or deferred sentence is
revoked because of a failure to meet the said conditions,
you are subject to the imposition of the maximum jail
sentence and fine permitted by law or such portion thereof
as the Court deems appropriate.
App. 33
APPENDIX G
IN THE MUNICIPAL COURT OF THE
CITY OF TUKWILA
KING COUNTY, WASHINGTON
CITY OF TUKWILA,
Plaintiff, NO. CR27909A
V. COURT'S INSTRUCTIONS
DEMPERE, JACKIE L., TO THE JURY
Defendant.
DATED: May 21, 2000
/s/ Albert M. Raines
ALBERT M. RAINES,
JUDGE PRO-TEM
* * *
INSTRUCTION NO. 5
Absent a threat of serious bodily injury to the
arrestee, a person is prohibited from interfering with an
arrest made by a uniformed police officer.
App. 34
APPENDIX H
IN THE MUNICIPAL COURT
OF THE CITY OF TUKWILA
CITY OF TUKWILA,
Plaintiff,
Vs. No CR0023205 TKP
JACKTE DEMPERE,
Defendant.
EXCERPTS OF VERBATIM REPORT OF PROCEEDINGS —
May 21, 2000
The Hon. Albert Raines, Judge, Pro Tempore, Presiding
APPEARANCES:
For the City of Tukwila Margita Dornay
City Attorney
For Jackie Dempere Charles Hamilton
Attorney at Law
{pp. 755-757] Mr. Hamilton: “I have one more
objection to the court’s new instruction.”
Judge: “Which one?”
Mr. Hamilton: “That would be five, was four now
five. Court’s instruction number five, the court’s new
confession with regard to Holman.”
Judge: “Okay.”
Mr. Hamilton: “That instruction gives no clarity,
no clarification, as to what constitutes interfering, none at
all. It just says you’re prohibited from interfering. That
App. 35
doesn’t charge the statute, that doesn’t reflect the law, that
does not describe what interfering is and what interfering
is not. And therefore if nothing else it constitutes where
words may constitute the only interference a charge to the
jury that does not take into consideration 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. There’s
no definition here anywhere of interference.”
Judge: “So is there a, I find that interference to
interfere is something with which the jurors can use their
common knowledge for. There is also no definition of delay
under the statute or hindered.”
Mr. Hamilton: “That in itself doesn’t make much
difference when it’s a brand new instruction which gives
you is a carte blanche vague instruction which does not, as
I say, at least eliminate simply the exercise of first
amendment rights.”
Judge: “City?”
Ms. Dornay: “Interfering should be has to be
interpreted for the regular meaning and if the court wants
to insert a “Webster” definition of interfering it [sic] pretty
self explanatory and these instructions are not read in a
vacuum. Theyre read in conjunction with the other in-
structions which would include the definition of obstruc-
tion and also the definition of willfully and as I said it’s not
read in a vacuum. It’s read in conjunction with the rest of
the instructions is fairly obvious to what the definition
means.
Judge: “I find that the common instruction
complies with the requirements in State versus Long.
App. 36
First of all with the instructions read as a whole, the first
element, second instruction that it allows each party to
argue their case and it does. Each party has arguments
that are not prevented by this instruction. And third it
does not misstate the law. It’s taken word for word out of
Holman. Any further objections?”
App. 37
APPENDIX I
No. 52925-1-I
IN THE COURT OF APPEALS
FOR THE STATE OF WASHINGTON
DIVISION ONE
IN RE THE RESTRAINT OF:
JACKIE DEMPERE,
Petitioner.
OPENING BRIEF OF PETITIONER
NEIL M. FOX
WSBA #15277
Attorney for Petitioner
COHEN & IARIA
1425 Western Ave. Suite 108
Seattle WA 98101 ~~
Phone: 206-624-9694
Fax: 206-624-9691
e-mail: nmf@cohen-iaria.com
* * *
2. There Is Insufficient Evidence to Sustain a Convic-
tion
Officer Syler arrived at the scene of a reported distur-
bance. He located the victim of some offense and because
the victim was excited, and perhaps because of language
barriers, Officer Syler handcuffed the victim. Officer Boyd
App. 38
arrived and saw Roman Garza walking by. Without even
knowing if a crime had occurred and what Mr. Garza’s
purported involvement was (and as it turned out, without
knowing that Mr. Garza was a peacemaker), Officer Boyd
ordered that Mr. Garza remove his hands from his jacket
and stop walking away. When Mr. Garza refused to stop,
Officer Boyd arrested Mr. Garza, and with force and
violence, and with Officer Syler’s and Officer’s Robertson’s
assistance, threw Garza against a car, pulled him to the
ground, put knees on his neck, handcuffed him, punched
him in the eye, threw him in the car, and repeatedly
sprayed him with pepper spray.
It is lucky for Mr. Garza that Ms. Dempere lived
nearby and heard his screams, and verbally challenged the
police. Without her involvement, it is quite likely that Mr.
Garza could easily have been severely injured. Ms. Dem-
pere had the courage to challenge verbally police miscon-
duct in her neighborhood. She is guilty of no offense.
Tukwila has adopted the RCW definition of obstruc-
tion by reference. Tukwila Municipal Code 8.60.010. RCW
9A.76.020 provides:
A person is guilty of obstructing a law en-
forcement officer if the person wilfully hinders,
delays, or obstructs any law enforcement officer
in the discharge of his or her official powers or
duties.
The relevant test for sufficiency of evidence under the
14th Amendment is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980) (Wash. Sup. Ct.’s
App. 39
emphasis), quoting Jackson v. Virginia, 443 U.S. 307, 319,
61 L.Ed.2d 560, 99 S. Ct. 2781 (1979).
This standard is not met in an obstruction case if a
person hinders, delays or obstructs an officer who is not ~
acting in the discharge of his or her official powers and
duties. Obviously, a police officer has no right to harass
innocent people and arrest them, slam them against patrol
cars, throw them to the ground unless such actions are
constitutional ~ i.e. comport with the 4th Amendment and
Wash. Const. art. 1, § 7. An officer who engages in such
behavior is not acting in the discharge of his or her official
power and duties — quite the contrary. The officer’s official
powers and duties are to enforce and uphold the law, not
to violate the Constitution.
Even if some sort of good faith standard is applied, as
is suggested by State v. Hudson, 56 Wn. App. 490, 784 P.2d
533 (1990), a law enforcement officer acts in bad faith and
does not discharge his or her official powers and duties, if
he or she knew or reasonably should have known that the
action he or she took would violate the constitutional
rights of the person affected or if he or she took the action
with the malicious intention to cause a deprivation of
constitutional rights or other injury. Hocker v. Woody, 95
Wn.2d 822, 825, 631 P.2d 372 (1981); State v. Groom, 80
Wn. App. 717, 722 n.2, 911 P.2d 403 (1996), rev’d on other
grounds, 133 Wn.2d 679 (1997).’
' Whatever Hudson may suggest, the law cannot be that one is
guilty of obstruction every time one disobeys an unlawful order by
police officer. Certainly, there are circumstances where one has a
constitutional right to continue engaging in certain acts — i.e. certain
controversial speech activities — even though a police officer gives an
order to cease. Yet, one cannot be guilty of obstruction for disobeying an
(Continued on following page)
App. 40
In the instant case, even taking the evidence in the
light most reasonable to the police, no reasonable police
officer would think that he or she had the right to detain
Mr. Garza. The officers had no information that a crime
had actually occurred, or that Mr. Garza was in any way
suspected of criminal activity. Accordingly, any reasonable
police officer in 1998 should have known that they had no
right to stop Mr. Garza, detain him or demand to see his
hands. See State v. 7‘hompson, 93 Wn.2d 838, 613 P.2d 525
(1980) (mere proximity to others suspected of misconduct
does not justify stop).
Since Mr. Garza had the right not to be detained,
under U.S. Const. amend. 4 and Wash. Const. art. 1, § 7,
he had the right to walk away, State v. Nettles, 70 Wn.
App. 796, 709, 855 P.2d 609 (1993), and could not be
accosted and thrown to the ground simply because he did
not want to cooperate with an illegal search. Any subse-
quent arrest of Mr. Garza was illegal and he should not
have been charged with or convicted of resisting arrest or
obstruction for his lack of cooperation. State v. Mendez,
137 Wn.2d 208, 970 P.2d 722 (1999).’
unconstitutional order to cease constitutionally protected activities. See,
e.g. Gulliford v. Pierce County, 136 F.3d 1345 (9th Cir. 1998) (verbal
protests to police constitutionally protected even if they hinder or delay
officer). See also Seattle v. Lewis, 70 Wn. App. 715, 720, 855 P.2d 327
(1993) (person cannot be guilty of obstruction unless officer is acting
lawfully).
*-Mr. Garza clearly made a poor choice when he pled guilty,
without assistance of counsel, hoping to be released from jail. The City
of Tukwila’s failure to provide him with counsel when he pled guilty
cannot, though, be used as evidence that Mr. Garza in fact was guilty of
obstruction and resisting arrest. As Mr. Garza testified, people plead
guilty all the time even though they are innocent, in the hope that by
pleading guilty they will be released from custody. RP 607-08. While
(Continued on following page)
App. 41
Ms. Dempere, then, had the right to challenge what
the police were doing, even if they were temporarily
hindered or delayed in effectuating their illegal arrest of
Mr. Garza or their “investigation” of the handcuffed _
victim. They were not discharging any official duties and
powers when they violated Mr. Garza’s rights. They were
in fact acting illegally and in bad faith. Accordingly, there
was insufficient evidence to sustain a conviction for
obstruction. The conviction should be vacated.”
* * *
6. The Jury Instructions Did Not Adequately
Protect Ms. Dempere’s First Amendment Rights
a. A Person Has a Clear First Amendment
Right to Challenge Police Misconduct
Ms. Dempere had a Ist Amendment right to observe
and verbally challenge police misconduct. The jury in-
structions, however — especially Instruction No. 5 (App. B)
— failed to give the jurors proper guidance regarding this
right, and allowed the jury to convict Ms. Dempere even if
it concluded that her verbal challenges were appropriate
in order to prevent the police from inflicting more injury to
Mr. Garza than what actually occurred.
In Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398, 107
S. Ct. 2502 (1987), the Supreme Court addressed a Hous-
ton ordinance which made it unlawful to “interrupt any
Ms. Dornay mocked this testimony in her closing argument, RP 778,
Mr. Garza’s actions are fully understandable and, regrettably, all too
common.
* Additionally, the failure to raise sufficiency on appeal denied Ms.
Dempere of effective assistance of counsel on appeal, in violation of U.S.
Const. amend. 14 and Wash. Const. art. I, secs. 3 & 22.
App. 42
policeman in the execution of his duty.” Mr. Hill had been
charged under this ordinance after he shouted at police
officers who had stopped friend and spoke with him. Hill
attempted to “divert” the officers’ attention from his friend
and yelled “Why don’t you pick on somebody your own
size.” One of the officers responded, “Are you interrupting
me in my official capacity as a Houston police officer?” Hill
then shouted, “Yes, why don’t you pick on somebody my
size?” 482 U.S. at 453-54. Hill was then arrested, but
ultimately acquitted by a jury. He then filed a civil lawsuit
on the issue of the constitutionality of the Houston ordi-
nance.
The Supreme Court held that the ordinance was
unconstitutionally overbroad in that it prohibited verbal
challenges to the police, which were entitled to protection:
[T]he First Amendment protects a significant
amount of verbal criticism and challenge directed
at police officers. “Speech is often provocative and
challenging. ... [But it] is nevertheless protected
against censorship or punishment, unless shown
likely to produce a clear and present danger of a
serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.”
Houston v. Hill, 482 U.S. at 461, quoting Terminiello v.
Chicago, 337 U.S. 1, 4, 93 L.Ed. 1131, 69 S. Ct. 894 (1949).
The Court noted that verbally challenging police of-
ficers was a hallmark of a free society: The Consti-
tution does not allow such speech to be made a
crime. The freedom of individuals to oppose or chal-
lenge police action without thereby risking arrest is
one of the principal characteristics by which we
distinguish a free nation from a police state.
482 US. at 462-63.
App. 43
Because the Houston ordinance criminalized verbal
challenges to police actions, and was not limited to fight-
ing words, “nor even to obscene or opprobrious language,”
482 U.S. at 462, the ordinance was unconstitutionally
overbroad and facially invalid.‘
In Gulliford v. Pierce County, supra, the 9th Circuit
construed Washington’s obstruction in a § 1983 case,
where an individual was arrested for telling an officer,
trying to break up a crowd, “why don’t you hop on the
ferry, hop on the ferry and go back.” 136 F.3d at 1347.
When the officers arrested Mr. Gulliford, he filed a law-
suit. After losing to the jury, he appealed and challenged
the following instruction:
The First Amendment protects the right of
citizens to verbally oppose and/or challenge po-
lice action without risking arrest so long as that
challenge does not knowingly hinder, delay, or
* See also Wilson v. Kittoe, _ F.3d __, 2003 U.S. App. LEXIS
14609 (4th Cir. 22 July 2003) (not obstruction under Virginia law for
lawyer to offer assistance to arrestee); L.A.T. v. State, 650 So.2d 214
(Fla.App. 1995) (defendant had 1st Amendment right to yell to gather-
ing crowd “police brutality, Rodney King style,” as well as a series of
swear words, at officers who were arresting his friend); Cavazos v.
State, 455 N.Ed.2d 618 (Ind_App. 1983) (calling officer an “asshole” and
continuing to debate the arrest of her brother by police protected
speech); State v. Janisczak, 579 A.2d 736 (Me. 1990) (defendant had
right to yell abusive names (“fucking assholes” and “jerks”) and to yell
“you don’t have the right to do that” at officers making an arrest).
The right to challenge police misconduct is an important one — had
the person who took the videotape of the police beating Rodney King
done something more than just record the beating on tape, and had that
person verbally challenged police actions, perhaps Rodney King would
not have been beaten so badly.
App. 44
obstruct any public servant in the discharge of _
the public servant’s official powers or duties.
136 F.3d at 1348.
The instruction Mr. Gulliford proposed stated:
Defendants claim that they had probable
cause to arrest plaintiff for obstructing a police
officer in the conduct of his lawful duties. The
First Amendment protects the right of citizens to
verbally opposed and/or challenge police action so
long as that challenge does not involve a threat
or fighting words.
Id.
The Ninth Circuit reversed the verdict and held that
Mr. Gulliford’s instruction properly stated the law, and
that the instruction actually given failed to comport with
Houston v. Hill, supra:
The facts before us are indistinguishable
from those in Hill and its progeny. If anything,
Gulliford’s suggestion that Deputy Thrash “hop
on the ferry” [footnote omitted] is less provoca-
tive than the “opprobrious language” found in
those cases. Jury Instruction Number 15 mis-
states the law or is at best misleading since it
does not state that under the First Amendment
an individual cannot be arrested for mere speech
unless the speech constitutes “fighting words.”
[citations omitted] We agree that Jury Instruc-
tion Number 15 was impermissibly misleading,
warranting reversal unless the error was harm-
less.
136 F.3d at 350.
App. 45
Ms. Dempere’s case is indistinguishable from Gulli-
ford, a case construing the same exact statute that her
conviction was based on. Ms. Dempere did not need to wait
until Mr. Garza was seriously injured before verbally
challenging the violence taking place in front of her own
house. She had a Ist Amendment right, under Houston v.
Hiil, supra, to challenge police misconduct, and had the
right under Gulliford to have the jury properly instructed
on this right. Instruction No. 5 does not conform to Gulli-
ford.
b. The Court Should Review the Instructional
Error Despite the Issue Having Been Raised
on Direct Appeal
Ms. Dempere raised issues pertaining to instructional
error on direct appeal, and both the superior court and
this Court rejected her arguments. Ex 16, 18, 20. Nor-
mally, issues raised on direct appeal are not reviewed in
collateral petitions unless the ends of justice would be
served by reexamining the issue. In re Gentry, 137 Wn.2d
_ 378, 388, 972 P.2d 1250 (1999).
Here, the ends of justice are served by reexamining
the 1st Amendment issue for the following reasons:
First, neither the Commissioner’s Ruling nor the
RALJ decision ever discuss the Ist Amendment, Houston
v. Hill, supra, or Gulliford, and thus provide no meaning-
ful discussion of why the principles and holdings of those
cases would not apply to Ms. Dempere’s case. The Ist
Amendment issues were therefore not adequately ad-
dressed in prior decisions and should now be examined
fully.
App. 46
Second, the direct appeal process was flawed by a
series of procedural errors. Ms. Dempere’s attorney on the
appeal failed to obtain a complete transcript of proceed-
ings, and left out key portions of Mr. Garza’s testimony.
When the motion for discretionary review was made,
counsel for Ms. Dempere failed to transmit to this Court a
full copy of the transcript, transmitting only a few pages of
the nearly thousand page original. This deficiency was
noted both by the Commissioner of this Court, Ex. 18 at 6
n.9. Mr. Hamilton also failed to cite to the relevant RAP in
his efforts to obtain discretionary review. Ex. 18 at 2 n.3.
Third, when Ms. Dempere moved to modify the
Commissioner’s Ruling, Judge Marlin Applewick was on
the panel deciding the case. Judge Applewick was Judge
Lukevich’s former law partner, and like Judge Trickey in
the superior court, should have recused himself from
hearing the case.
In all, given the substantial Ist Amendment issues at
stake, and the lack of full appellate review before, this
Court should now consider the Ist Amendment issues.
App. 47
APPENDIX J
No. 76482-4
COA NO. 52925-1-I
IN THE SUPREME COURT OF
THE STATE OF WASHINGTON
IN RE THE RESTRAINT OF:
JACKIE DEMPERE
Petitioner.
MOTION FOR DISCRETIONARY REVIEW
NEIL M. FOX
WSBA #15277
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
* * *
4. There Was Insufficient Evidence to Sustain a
Conviction
Ms. Dempere argued below that there was insufficient
evidence to support a conviction under U.S. Const. amend.
14 because the police had no constitutionally valid reason
for arresting Mr. Garza. The Court of Appeals rejected this
argument and held that Ms. Dempere did not cite to any
authority “to support her conclusory assertion that Garza
was illegally detained and arrested as a matter of law.”
App. 48
Slip Op. at 11. The Court further cited State v. Ware, 111
Wn. App. 738, 46 P.3d 280 (2002), as authority that there
was sufficient evidence to sustain a conviction.
Ware dealt with a juvenile who challenged police
officers as they were arresting someone else “due to her
threats to assault another individual.” 111 Wn. App. at
240. Ms. Ware never challenged this fact, nor did she raise
on appeal any issue about the legality of the police behav-
ior, nor did she ever claim that she verbally challenged the
police because of the excessive force they were using in
effectuating the initial arrest. Thus, Ware is inapposite
and has little to do with the situation that arose when the
police here illegally arrested Mr. Garza and brutalized
him.
Moreover, far from just making the “conclusory
assertion” that the police illegally detained and arrested
Mr. Garza, Ms. Dempere provided briefing and authority
that the police could not arbitrarily detain him and search
him, since he was not suspected of committing any offense,
citing State v. Thompson, 93 Wn.2d 838, 613 P.2d 525
(1980); State v. Mendez, 137 Wn.2d 208, 970 P.2d 722
(1999), and State v. Nettles, 70 Wn. App. 706, 709, 855 P.2d
609 (1993). Opening Brief at 29-30. See also Reply Brief at
12-13 (citing 9th Circuit decision regarding excessive
force); Supplemental Brief of Petitioner at 3-4 (discussing
Mr. Garza’s right to walk away from police).
The City’s briefing never even addressed the authori-
ties cited by Mr. Garza, and never attempted to distin-
guish cases such as State v. Thompson, supra, which
clearly have held that simply being near another person
suspected of a crime (or, for that matter, simply being near
the victim of a crime) is not a sufficient basis to detain
App. 49
someone by force. While the officers involved may have
believed that there is a crime called “Being in Tukwila,”
the City never cited any authority to support that belief.
See Ex. 30, Complaint No. 99-15; Supp. RP 41 (Mr. Garza’s
testimony that the officers told him “to leave the City of
Tukwila or, or every time they see me, we are going to
have problems.”).
Here, the officers were not engaged in any official
duties when they illegally detained Mr. Garza, who was a
suspect in no offense, demanded to see what he had in his
pockets, threw him to the ground, and then forcibly
handcuffed him, sprayed him, blocked his breathing, and
punched him in the eye. Such police conduct is not sanc-
tioned under U.S. Const. amend. 4 or Wash. Const. art. 1,
§ 7. Thus, there cannot be sufficient evidence under the
Due Process Clause of U.S. Const. amend. 14 to-convict
Ms. Dempere of obstruction. The Court of Appeals’ decision
to the contrary warrants relief under RAP 13.5.
* * «
6. The Instructions Violated the First Amendment
Ms. Dempere had a Ist Amendment right to observe
and verbally challenge police misconduct. The jury in-
structions, however — especially Instruction No. 5 — failed
to give the jury proper guidance regarding this right, and
allowed the jury to convict Ms. Dempere even if it con-
cluded that her verbal challenges were appropriate in
order to prevent the police from inflicting more injury to
Mr. Garza than what actually occurred. In this regard, the
instructions did not adequately protect Ms. Dempere’s
federal right to challenge verbally [sic] police misconduct
under Houston v. Hill, 482 U.S. 451, 96 L.Ed.2d 398, 107
App. 50 |
S. Ct. 2502 (1987) and Gulliford v. Pierce County, 136 F.3d
1345 (9th Cir. 1998).
The Court of Appeals rejected this argument because
it concluded that Ms. Dempere did not show a reason why
the issue should be revisited after she previously chal-
lenged the instructions on direct appeal. Slip Op. at 13-14.
However, the decisions on direct appeal (from the RALJ
court and the Court of Appeals), never meaningfully
discussed the First Amendment or any federal cases such
as Houston v. Hill or Gulliford, and thus provided no real
discussion of why the federal constitutional principles and
holdings of those cases would not apply to Ms. Dempere’s
case. The lst Amendment issues were therefore not
adequately addressed in prior decisions. By refusing to
consider the 1st Amendment issues, the Court of Appeals
committed obvious or probable error, justifying relief
under RAP 13.5
App. 51
APPENDIX K
IN THE SUPREME COURT OF THE
STATE OF WASHINGTON
IN RE PERSONAL )
RESTRAINT OF, ) CAUSE NO. 76482-4
JACKIE DEMPERE, ) MOTION TO MODIFY
ee ) COMMISSIONER’S RULING
Petitioner.
* K *
c. There Was Insufficient Evidence to Support a Convic-
tion
The Commissioner summarily rejected Ms. Dempere’s
sufficiency argument by stating: “She does not show that
the arrest was necessarily unlawful.” Ruling at 2. How-
ever, as stressed throughout prior pleadings, there is no
evidence that the arrest was in any way lawful. The
officers arrived on the scene of some “disturbance call,”
handcuffed the victim, and then tried to detain someone,
Mr. Garza, who was merely in the vicinity. When Mr.
Garza declined to speak to the police, the officers threw
him to the ground, choked him, handcuffed him and
pepper-sprayed him. Neither the City of Tukwila, the
Court of Appeals nor the Commissioner ever cited any case
or principle of law that allows for this behavior under U.S.
Const. amend. 4 and Wash. Const. art. 1, § 7. In contrast,
Ms. Dempere cited cases which specifically hold that
someone like Mr. Garza had the right to walk away and
not be tackled by the police, since he was suspected of no
offense. State v. Thompson, 93 Wn.2d 838, 613 P.2d 525
(1980); State v. Mendez, 137 Wn.2d 208, 970 P.2d 722
(1999), and State v. Nettles, 70 Wn. App. 706, 709, 855 P.2d
App. 52
609 (1993). See also Ybarra v. Illinois, 444 U.S. 85, 91, 62
L.Ed.2d 238, 100 S.Ct. 338 (1979) (“[A] person’s mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause
to search that person.”).
Accordingly, because the police were violating U:S.
Const. amend. 4 and Wash. Const., art. 1, § 7, they were
not acting within their official duties. There was insuffi-
cient evidence to sustain a conviction under the Due
Process Clause of U.S. Const. amend. 14 and Jackson v.
Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S. Ct. 2781
(1979). This Court should accept review and vacate Ms.
Dempere’s conviction.
* * *
f. The Instructions Violated the First Amendment
The Commissioner denied review on the First Amend-
ment issues stating chat Ms. Dempere did not show a
reason to re-examine the issue after it was rejected on
direct appeal. However, as noted in prior pleadings, there
was minimal discussion on direct appeal of the First
Amendment and the holdings of Houston v. Hill, 482 U.S.
451, 96 L.Ed.2d 398, 107 S. Ct. 2502 (1987) and Gulliford
v. Pierce County, 136 F.3d 1345 (9th Cir. 1998). Yet, the
holdings of these two cases make it clear that the instruc-
tions in this case, especially Instruction No. 5,' did not
protect Ms. Dempere’s right to criticize verbally [sic] police
* Instruction No. 5 provided:
Absent a threat of serious bodily injury to the arrested, a
person is prohibited from interfering with an arrest made by
a uniformed police officer.
Ex. 9.
App. 53
actions which were harming a third party. When the police
are acting illegally and are harming someone, a bystander
in a free society has the right under U.S. Const. amend. 1
& 14 to shout at the officers to cease their behavior, even if
this shouting interferes with what the officers are doing.’
Houston v. Hill, supra.
Accordingly, review should therefore be granted so
that this Court can review fully the First Amendment
issues.
)
* Moreover, as noted in prior pleadings, the direct appeal process
was flawed by the fact that prior counsel did not transmit to the Court
of Appeals a full record of the trial (transmitting only a few of the
nearly thousand pages of transcript), and a conflict of interest between
a judge on the Court of Appeals who heard Ms. Dempere’s original
motion for discretionary review and Judge Peter Lukevich.
~
(ate oe cna Ce ee
Supreme Court of the Anited States
¢
JACKIE DEMPERE,
Petitioner,
v.
THE CITY OF TUKWILA,
Respondent.
&
v
On Petition For A Writ Of
Certiorari To The Washington
Court Of Appeals, Division I
¢
BRIEF IN OPPOSITION
¢
SANDRA S. MEADOWCROFT
Attorney for Respondent
KENYON DISEND, PLLC
11 Front Street South
Issaquah, WA 98027
Phone: (425) 392-7090
Fax: (425) 392-7071
e-mail: Sandy@KenyonDisend.com
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Respondent City of Tukwila objects to Petitioner
Jackie Dempere’s Question Presented. Contrary to Ms.
Dempere’s stated Question, she verbally and physically
obstructed a police investigation and subsequent arrest.
Furthermore, there are absolutely no facts before this
Court that the arrest of an individual detained at the
scene was illegal — thus provoking Ms. Dempere’s in-
volvement. Rather, the alleged illegal arrest of Ramon
Garza resulted in a plea of guilt. Accordingly, the City of
Tukwila offers the following as the correct issue to be
considered by this Court on Ms. Dempere’s Petition for
Certiorari:
Whether a municipality may criminalize behavior that
willfully hinders, delays, or obstructs a law enforcement
officer in the discharge of his or her official powers?
ii
TABLE OF CONTENTS
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Reasons for this Court to “Deny Ms. Dempere’s
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TABLE OF AUTHORITIES
Page
CASES:
City of Chicago v. Morales, 527 U.S. 41 (1999).............0.. 12
Colten v. Kentucky, 407 U.S. 104 (1972) wo. eeeeseeseees 11
Houston v. Hill, 482 U.S. 451 (1987)................ 6, 8, 9, 10, 11
In re Personal Restraint of Gentry, 137 Wn.2d 378,
OF Fe Sete CRDi tats tichannancesndudixssiiicciaviiabbinseetanoaetie 7
Lewis v. City of New Orleans, 415 U.S. 130 (1974)............. 8
STATUTES:
Be Fears Rw cisnckasde Ftsistnesabsnddentg scans cobcoasneayncdeegnncaess 2
Ordinances, City of Houston, Texas § 34-11(a)
ERED cic esks cetsada ccdcg su ics iucin ety snd duced sakes abbas saeecadaseeaaaciens 8
Biov, Coa Walk: 5 OA FG oes oS sesecicsssecinee tite 2
1
BRIEF IN OPPOSITION
The City of Tukwila, a municipal corporation organ-
ized under the laws of the State of Washington, opposes
Jackie Dempere’s Petition for Writ of Certiorari from the
Washington Court of Appeals, Division One’s opinion in Jn
the Matter of the Personal Restraint of Jackie Dempere, No.
52925-1-I, the Washington Court of Appeals, Division
One’s denial of Ms. Dempere’s Motion for Reconsideration,
the Commissioner of the Washington Supreme Court’s
denial of discretionary review, and the Washington Su-
preme Court’s Order Denying Dempere’s Motion to Modify
the Commissioner’s Ruling, and respectfully requests that
this Court deny her Petition.
e
vy
OPINIONS BELOW
The unpublished opinion of the Washington Court of
Appeals issued on October 18, 2004 is reported at 123 Wn.
App. 1046 (2004). App. 1-16. The Washington Court of
Appeals denied Ms. Dempere’s Motion for Reconsideration
on December 8, 2004. App. 17. In an unpublished order,
issued on February 24, 2005, the Commissioner of the
Washington Supreme Court denied discretionary review.
App. 18-21. In an unpublished order, entered on May 3,
2005, the Washington Supreme Court denied Ms. Dem-
pere’s Motion to Modify the Commissioner’s Ruling. App.
22. The judgment imposed by the trial court and the trial
court’s rulings are unpublished. App. 23-36.
¢
2
STATEMENT OF JURISDICTION
On May 3, 2005, the Washington Supreme Court
entered its Order denying Petitioner’s Motion to Modify
the Commissioner’s Ruling (review denied). App. 22.
Accordingly, 28 U.S.C. § 1257 confers this Court with
jurisdiction.
¢
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitu-
tion provides in relevant part, “Congress shall make no
law ... 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 Fourteenth Amendment to the United States
Constitution provides in relevant part, “[NJor shall any
State deprive any person of life, liberty, or property,
without due process of law...”
Revised Code of Washington (“RCW”) § 9A.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.”
Tukwila Municipal Code (“TMC”) § 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 enforcement officer.”
r
Vv
3
STATEMENT OF THE CASE
Respondent City of Tukwila objects to Petitioner
Jackie Dempere’s Statement of the Case because it is
factually incorrect, it misconstrues pertinent facts, and it
contains irrelevant material relating to the Question
Presented. The City accordingly offers its own Statement
of the Case.
A. Relevant Facts.
The City charged Ms. Dempere with obstructing a lew
enforcement officer arising from an incident which oc-
curred on October 29, 1998, during which incident she
interfered with several City police officers responding to a
possible gang-related disturbance. App. 1. The case ini-
tially went to trial in October of 1999, and ended in a
mistrial. When the case was retried in May of 2000, the
jury found Ms. Dempere guilty as charged. App. 2. Ms.
Dempere received a suspended sentence that eventually
was modified to eliminate any detention and community
service requirements and required only the payment of a
fine. App. 5.
At trial, the City presented evidence that Tukwila
officers were sent to a possible fight at an apartment
building on the evening of October 29, 1998. App. 2. Officer
Syler, the first officer on scene, encountered « large group
of people milling about. App. 2, 38-39. Officer Robertson
described the scene during his testimony as chaotic with
groupings of individuals within the vicinity. App. 49-51.
Upon arriving at the scene, the officers observed
Ramon Garza, with his hands in his pockets, attempting to
leave the scene. Tukwila Officer Boyd contacted Mr. Garza
4
as Mr. Garza walked toward Officer Boyd’s police car with
his hands in his pockets. Concerned that Mr. Garza could
have a weapon, Officer Boyd asked him to remove his
hands from his pockets; Mr. Garza refused. App. 3. A
physical confrontation ensued between Officer Boyd and
Mr. Garza. App. 2.
When Officer Syler noticed Officer Boyd struggling
with Mr. Garza a short distance away, Officer Syler left
the apparent victim and assisted with Mr. Garza’s detain-
ment. According to Officer Syler, Mr. Garza had been
violent during prior arrests and had previously assaulted
an officer. App. 2. Mr. Garza yelled and cursed and even-
tually the officers forced him to the ground and secured
him in handcuffs. A struggle then ensued between the
officers and Mr. Garza after Mr. Garza cursed and threat-
ened the officers, and aggressively attempted to avoid
detention. App. 2. Mr. Garza continued to struggle and
kick, requiring at least three officers to restrain and move
him into a patrol car. Because Mr. Garza continued to kick
while situated in the patrol car, the officers used pepper
spray to subdue him. App. 2.
Simultaneous with the officers’ attempts to restrain
Mr. Garza, Ms. Dempere entered the scene. While Officer
Syler assisted with detaining Mr. Garza, he noticed Ms.
Dempere cross the street and approach the officers with a
screwdriver in her hand. App. 3. Officer Syler informed
Ms. Dempere that she would have to move back across the
street. Specifically, while attempting to secure a volatile
and combative Mr. Garza, Officer Syler testified that he
told Ms. Dempere to wait across the street as the scene
had not been secured. App. 3.
5
Ms. Dempere moved across the street for a short time.
Shortly thereafter, Ms. Dempere again crossed the street
to within a few feet of the officers holding Mr. Garza. App.
3, 46-49. Officer Syler testified that Ms. Dempere verbally
refused to leave the scene after he repeatedly requested
she do so. Ms. Dempere responded that she did not have to
do what he said. After some discussion, she returned to the
other side of the street. App. 3, 46-49.
A short time later, however, Ms. Dempere once again
moved back across the street and approached the officers
who were attempting to restrain Mr. Garza. App. 47-49.
Officer Syler testified that at this point Ms. Dempere
refused to comply with repeated orders to move away from
the officers’ detention of Mr. Garza and became increas-
ingly hostile. App. 3, 47-49. Officer Robertson testified that
after Ms. Dempere crossed the street a third time, she
began speaking in Spanish to Mr. Garza. App. 4.
At this point Officer Syler warned Ms. Dempere that
if she refused to comply with his request to retreat back
across the street away from the investigation, she would
be arrested. Ms. Dempere refused to obey. App. 3, 48-49.
Because of Ms. Dempere’s repeated interference in a
lawful arrest, Officer Syler was forced to repeatedly
interrupt the lawful arrest of Mr. Garza and the investiga-
tion of the reported disturbance. As a result, the officers
placed Ms. Dempere under arrest for obstructing a law
enforcement officer pursuant to TMC § 8.60.020. App. 3.
B. Misconstrued Facts.
Ms. Dempere makes the false assertion that her
arrest and subsequent conviction ultimately resulted
solely from her verbal communications with the Tukwila
6
officers. She attempts to analogize her facts to those of
Houston v. Hill, 482 U.S. 451 (1987), where the defendant
merely yelled at a police officer twice prior to his arrest. In
contrast, the facts presented at trial and considered by the
jury in Ms. Dempere’s case tell a markedly different story
of both verbal and physical interference.
Ms. Dempere inserted herself into a crime scene. She
did not stand on the sidelines and simply yell her dis-
pleasure to the officers. Rather, with a screwdriver in
hand, she came across the street and physically intruded
into a crime scene investigation. Consequently, Tukwila
Officers Syler, Boyd, and Robertson reasonably and
repeatedly requested that Ms. Dempere remove herself
from the scene and retreat to the other side of the street.
Ms. Dempere unreasonably and repeatedly ignored their
requests. To avoid further interruption in securing the
scene and detaining the physically combative Mr. Garza,
Ms. Dempere was placed under arrest.
Ms. Dempere makes the wholly unsubstantiated
assertion that the Tukwila officers acted “illegally” when
detaining and ultimately arresting Mr. Garza. It is uncon-
troverted that Mr. Garza pled guilty to charges of both
resisting arrest and obstructing a law enforcement officer.
App. 53-57. Mr. Garza’s arrest and ultimate plea of guilty
are not before this Court, nor would Ms. Dempere have
standing to bring them before this Court. Even so, Ms.
Dempere fails to prove how such allegations would have
been admissible or affected her conviction.
Ms. Dempere’s allegations regarding the officers’
conduct are unfounded, unsupported in this record or
otherwise, and wholly inapplicable to the Question Pre-
sented. Indeed, both lower reviewing courts dismissed this
7
assertion. Specifically, the Washington Court of Appeals
stated, “Dempere has not cited any authority to support
her conclusory assertion that Garza was illegally detained
and arrested as a matter of law.” App. 11. Additionally, the
Washington Supreme Court stated that Ms. Dempere’s
allegations are based on assertions that Mr. Garza’s arrest,
with which she interfered, was unlawful. Ms. Dempere,
however, does not show that the arrest was necessarily
unlawful. App. 19. This Court should disregard Ms. Dem-
pere’s incorrect assertion regarding Mr. Garza’s arrest.
With regard to Jury Instruction No. 5 referenced by
Ms. Dempere at page 4 of her Petition, the Washington
Court of Appeals addressed this issue and determined that
Ms. Dempere failed to demonstrate that the “ends of |
justice would be served by reexamining the issue.” App.
14. Instruction No. 5 provided that “Absent a threat of
serious bodily injury to the arrestee, a person is prohibited —
from interfering with an arrest made by a uniformed
officer.” App. 15. The Washington Court of Appeals indi-
cated that the instructional issues raised and rejected in
Dempere’s direct appeal concluded that Instruction No. 5
was a proper statement of the law and did not prevent
Dempere from arguing her theory of the case and that the
trial court did not err in failing to give Dempere’s proposed
instruction.’ App. 15.
Sd
In re Personal Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d
1250 (1999).
* The trial court declined to give the following instruction proposed
by Dempere: “Under the circumstances of this case, you are instructed
that words alone are not sufficient to establish commission of the crime
of obstructing-ataw enforcement officer.” App. 15.
8
REASONS FOR THIS COURT TO
DENY MS. DEMPERE’S PETITION
Rule 10 sets forth considerations governing review on
Petitions for Writ of Certiorari. Rule 10 clearly describes
that, “Review on a writ of certiorari is not a matter of
right, but of judicial discretion” which will be granted only
for “compelling reasons.” Fundamentally, a Petition for a
Writ of Certiorari “[i]s rarely granted when the asserted
error consists of erroneous factual findings or the misap-
plication of a properly stated rule of law.” Rule 10.
In this instance, Ms. Dempere’s Statement of the Case
includes erroneous factual findings regarding allegations
that the officers’ conduct relating to Mr. Garza was illegal.
Additionally, Ms. Dempere entirely misapplies this Court’s
holding in Houston v. Hill (infra).
The facts supporting the City’s charge that Ms.
Dempere obstructed law enforcement and the resulting
conviction by the jury in no way supports Ms. Dempere’s
allegation that her arrest resulted from her communica-
tion of protected speech. Indeed, the City agrees that
verbally confronting the police is a right all Americans
have under the First Amendment. Hill, 482 U.S. at 461
(1987); Lewis v. City of New Orleans, 415 U.S. 130 (1974).
In Houston v. Hill, this Court addressed a Houston
ordinance, which made in unlawful “for any person to
assault, strike, or in any manner oppose, molest, abuse or
interrupt any policeman in the execution of this duty... .”
Hill, 482 U.S. at 455, quoting Ordinances, City of Houston,
Texas § 34-11(a) (1984). Hill had been charged under this
ordinance after he shouted at police officers who had
stopped his friend. Hill attempted to “divert” the officer’s
attention from his friend and yelled “Why don’t you pick
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.