Appeal from Superior Court of King County. Docket No: 92-2-16337-3. Date filed: 07/07/95.
Authored by Mary K. Becker. Concurring: Walter E. Webster, Pro Tem Judge.
The opinion of the court was delivered by: Becker
BECKER, J. -- A defense verdict in the first phase ended the bifurcated trial of this civil rights claim alleging misconduct by Seattle police. On appeal, the plaintiffs, Omari Salisbury and his mother, Harriett Walden, contend that one of the instructions impermissibly allowed the jury to find obstruction of a police officer based on mere speech.
They also contend that the first phase of the trial only concluded their claims against specific officers, and the court should have permitted a second phase to try the City's liability for acts of unknown officers. We affirm.
Late on a summer evening, Officer Richard Atkins attempted to stop a car occupied by four young men. The car did not stop immediately, but soon pulled up in front of the home of one of the passengers, Tunde Salisbury.
All three passengers alighted and began yelling at Atkins. Within a few minutes, at least three more police cars converged on the scene in response to Atkins' call for backup.
Atkins began to ticket the driver, who remained in the car, for having a defective license plate lamp. Meanwhile, Omari Salisbury, Tunde's brother, came out of the house and joined the three passengers on the stairs above the sidewalk. This group directed toward the officers a torrent of criticism and insult, much of it obscene. The officers asked them to leave. When they did not, the officers arrested Omari Salisbury and the three passengers and took them into custody. Omari Salisbury was booked for harassment, obstruction, and hindering.
On the day of trial, these charges were dismissed when the police were unable to produce a tape they said had been made of the incident.
Salisbury's mother, Harriett Walden, then filed a 42 U.S.C. sec. 1983 complaint alleging civil rights violations by the City of Seattle, the Seattle Police Department, Officer Atkins, and Officer Benson, another officer who had participated in the arrests.
The trial court ordered the trial bifurcated so that damages and the City's customs and usages would not be at issue unless Salisbury could first make the necessary showing of a civil rights violation. When the jury returned a defense verdict after the first phase, the trial court entered judgment.
One of the alleged civil rights violations was that the police arrested Salisbury without probable cause. The City's defense was that the arresting officer had probable cause for each of the offenses for which Salisbury had been booked. The court instructed the jury as to the definition of each offense. Salisbury assigns error to instruction nine, which gave a statutory definition for "obstructing a public officer":
A person commits the crime of obstructing a public officer if, with knowledge that the person obstructed is a public officer, he or she willfully hinders, delays or obstructs a public officer in the discharge of his official duties. *fn1
See RCW 9A.76.020. *fn2 An arrest is unconstitutional under the First Amendment if based on mere criticism that interrupts the police officer in the execution of official duties. See, e.g., Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).
Salisbury excepted to instruction nine on the grounds that it allowed a jury to find probable cause simply from evidence that Salisbury had engaged in criticism of the police. The following colloquy took place during the instructions conference:
THE COURT: Do you want to address the alternative request of Mr. Ford, that the Court insert some type of language along the lines of what he had proposed, regarding speech alone being insufficient?
MS. BREMNER: I think that's a comment on the evidence. The Court has defined the statute as a proper statement of the law and the statute does not so state. So I think that type of statement is a comment on the evidence.
And, frankly, it's implicit in the instructions. And the instructions are appropriate for each party to argue its theory of the case, and he ...