Appeal from Superior Court of King County. Docket No: 93-1-08344-7.
Order Denying Motion for Reconsideration April 8, 1997, Petition for Review Denied September 3, 1997,
Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse.
The opinion of the court was delivered by: Agid
AGID, J. -- Edward Abercrombie, also known as Larry Patterson, appeals his conviction for obstructing a public officer, arguing that the obstruction ordinance under which he was charged is unconstitutionally vague and overbroad and that his conviction was not supported by sufficient evidence. We conclude that the obstruction ordinance is neither void for vagueness nor overbroad, and affirm.
At approximately 2 a.m. on April 30, 1993, Seattle Police officers involved in a narcotics surveillance operation near Fourth and Virginia in downtown Seattle were investigating a suspicious narcotics incident observed by police that centered on a Toyota Celica parked in a nearby lot.
Officer Gregory Hunter testified that he was instructed to join seven or eight other uniformed police officers in interviewing several individuals gathered around the Toyota to determine whether any of them had been involved in the incident. Police were also investigating a report that the car was stolen. Abercrombie was one of the people police interviewed at the scene. After he told officers he had no connection to the vehicle or the other people gathered around it, they told him he was free to go. But he chose to remain at the scene and began verbally abusing the officers as they continued interviewing other suspects. He screamed obscenities at the officers, threatened to kill them, raised his fists and waved his hands within inches of their faces. Officers repeatedly asked him to leave, but he refused to go away. After two officers escorted him to a spot about 50 feet away from where police were conducting the interviews, Abercrombie returned almost immediately and continued to verbally abuse and threaten to hit the officers. Officers testified that Abercrombie's belligerent and physically aggressive behavior made it difficult for them to focus on questioning those who remained at the scene and interfered with their investigation by forcing them to turn their attention from their investigation to deal with his behavior. After Abercrombie returned, officers told him that, if he did not leave, he would be arrested. When he still did not leave, police did as they had promised and arrested him.
Abercrombie was charged with one count of menacing, in violation of SMC 12A.06.030(A)(1), and one count of obstructing a public officer, in violation of SMC 12A.16.010(A)(5). The case was tried to the bench.
Although Abercrombie testified to a different version of the facts, the court found the officers' account more credible in part because of inconsistencies in Abercrombie's own testimony at trial and found him guilty of both menacing and obstructing an officer. Abercrombie appealed and the superior court certified his appeal to this court, which accepted discretionary review.
Obstructing a Police Officer
Abercrombie first contends that his conviction for obstructing a public officer should be reversed because the ordinance under which he was convicted, SMC 12A.16.010(A)(5), is unconstitutionally overbroad and vague.
A statute or ordinance is overbroad if it sweeps constitutionally protected free speech activities within its prohibitions and there is no way to sever its unconstitutional applications. *fn1 State v. Talley, 122 Wash. 2d 192, 210, 858 P.2d 217 (1993); City of Seattle v. Huff, 111 Wash. 2d 923, 925, 767 P.2d 572 (1989). Criminal statutes require particular scrutiny and may be facially invalid if they "'make unlawful a substantial amount of constitutionally protected conduct . . . even if they also have legitimate application.'" Huff, 111 Wash. 2d at 925 (quoting City of Houston v. Hill, 482 U.S. 451, 459, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398, cert. denied, 483 U.S. 1001, 97 L. Ed. 2d 729, 107 S. Ct. 3222 (1987)). A statute that regulates behavior and not pure speech "will not be overturned unless the overbreadth is 'both real and substantial in relation to the ordinance's plainly legitimate sweep.'"
City of Seattle v. Eze, 111 Wash. 2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). Even if a statute is "substantially overbroad," we will uphold it if we are able to limit its construction in a way that brings it within constitutional bounds. State v. Halstien, 122 Wash. 2d 109, 123, 857 P.2d 270 (1993).
SMC 12A.16.010(A)(5), under which Abercrombie was charged with obstructing an officer, provides:
A person is guilty of obstructing a public officer if, with knowledge that the person obstructed is a ...