case involves a clash of deeply significant public policies.
As a modern society, we condemn domestic violence and have
vested police with the power and duty to investigate and to
intervene. As a society governed by our constitutions, there
are limits on the State's power to punish speech, to
demand an individual's active cooperation, or to intrude
into a home.
homes hold a special place in our constitutional
jurisprudence. It is the first place specifically called out
in our constitution, and it is called out to give it special
protection. Under our constitution, "[n]o person shall
be disturbed in his private affairs, or his home
invaded, without authority of law." CONST, art. I,
§ 7 (emphasis added). "In no area is a citizen more
entitled to his privacy than in his or her home. For this
reason, 'the closer officers come to intrusion into a
dwelling, the greater the constitutional
protection'." State v. Young, 123 Wn.2d
173, 185, 867 P.2d 593 (1994) (citation omitted) (quoting
State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419
(1984)). Officers must have a warrant or a well-established
exception to the warrant requirement before intruding into a
home. Id. at 181. Our constitutions also rigorously
protect speech, even obnoxious speech. State v. E.J.
J., 183 Wn.2d 497, 501, 354 P.3d 815 (2015).
bystander called 911 about a loud, late-night argument in a
home. Police officers, appropriately concerned about domestic
violence, went to that home to investigate. They heard an
argument and demanded entry. Solomon McLemore and his
girlfriend, Lisa,  lived in that home, refused to open
their door, and told the officers to go away. Instead, the
officers broke down that door under a well-established
exception to the warrant requirement: community caretaking.
However, when the officers found that no one was injured and
that there was no evidence of any other crime, they arrested
McLemore for obstruction of a law enforcement officer. This
arrest appeared to be mostly based on McLemore's
belligerent refusal to open his door. He was subsequently
convicted of the charge. We must decide whether, under the
obstruction statute as properly limited to its constitutional
scope and the facts of this case, the conviction may stand.
It may not.
one night, a bystander heard a disturbance and called 911.
Three Shoreline police officers responded and heard the
sounds of an argument coming from an apartment above a dry
cleaner's shop. Police heard a woman shouting,
'"[Y]ou can't leave me out here, '"
'"I'm going to call the police, '" and
"something along the lines of 'I'm reconsidering
our relationship'." Clerk's Papers (CP) at 149.
The officers knocked on the door of the apartment, rang the
doorbell, announced they were Shoreline police, and demanded
to be let in. No one in the apartment replied, but the sounds
of the argument stopped. Using amplification and much
profanity, the officers insisted they would break down the
door if they were not let in. McLemore told them to leave.
After several minutes of this, police heard the sound of
breaking glass. The officers started to break down the door.
and Lisa lived together with their six month old son in that
apartment. The couple had had a difficult night. McLemore had
accidentally broken a window, and Lisa was upset about having
to repair it. McLemore had told Lisa he would clean up the
glass but instead went to play pool with a friend. When he
came home at about one o'clock in the morning, he and
Lisa argued. Since their child was asleep, they took their
argument outside to a balcony. McLemore claimed he
accidentally locked Lisa outside on that balcony when he came
in. Minutes after he let Lisa back in, the police started
banging on their door. McLemore told the officers that they
were okay, that he was recording the incident, and that they
should leave. At McLemore's insistence, Lisa confirmed
that she was fine and that she also wanted the officers to
leave. Instead, rightfully concerned about domestic violence,
the officers broke down her door.
the door was "completely destroyed," CP at 152, the
officers entered with their guns drawn, handcuffed McLemore,
and put Lisa and McLemore into separate police cars. Officers
determined Lisa was not injured. Lisa told the officers that
the couple had not opened the door because they were afraid
one of them would be arrested if they did. Officers arrested
McLemore for obstruction of a law enforcement officer under
RC W 9A.76.020. No other charges were filed.
trial, McLemore moved to dismiss the charge on the grounds
the city had offered "no evidence that McLemore
willfully hindered or delayed an officer's lawful
investigation as the law does not require any duty of a
person to act in a warrantless search of their
residence." CP at 139. The judge denied the motion,
concluding that the charges were sustainable under State
v. Steen, 164 Wn.App. 789, 265 P.3d 901 (2011). The
judge also excluded any defense related to McLemore's
assertion that the officers did not have the right to enter
without a warrant.
closing argument, the city stressed that most of the elements
were not in dispute. Instead, the "element that gets the
bulk of the argument. . . and the bulk of the scrutiny in
this testimony was did the defendant willfully hinder or
delay or obstruct the discharge of [officers']
duties." CP at 468. The city characterized
McLemore's refusal to open the door as a willful
obstruction. Defense counsel argued that "[it is] not
McLemore's job to help" the police and that "he
did nothing. He simply sat in his house." Id.
deliberations, the jury sent out one question: "Does a
person have the legal obligation to follow the police
instructions, in this case?" Id. at 43. The
court responded, "[Y]ou have been provided with the law
in this case in the jury instructions." Id. The
instructions, including the to-convict instruction, mirrored
the pattern jury instructions, and no specific instruction on
a citizen's obligation to open a door to a warrantless
entry was included. See, e.g., id. at 59; 11A
Washington Practice: Washington Pattern Jury Instructions:
Criminal 120.02, at 519 (4th ed. 2016). McLemore was
appealed, first to the superior court, then to the Court of
Appeals, and finally here. We granted review. City of
Shoreline v. McLemore, 191 Wn.2d 1001 (2018).
stress that we are not asked to determine whether the
officers' forced entry in McLemore's home was lawful.
McLemore, wisely, does not challenge the trial court's
conclusion that the officers were exercising their community
caretaking function at the time. Based on this record, the
officers had the lawful power to enter McLemore's home to
assess whether domestic violence had occurred and to take
appropriate action if it had. See Danny v. Laidlaw
Transit Servs., Inc., 165 Wn.2d 200, 208-19, 193 P.3d
128 (2008) (plurality opinion) (surveying Washington's
public policy of combating domestic violence); ch. 10.99 RCW
(establishing that domestic violence is a serious crime and
setting forth minimum standards for official
responses). Analogously, officers have the
statutory authority to break into a home to make an arrest
"if, after notice of [their] office and purpose, [they]
be refused admittance." RCW 10.31.040. It is undisputed
that the officers here responded appropriately and lawfully
to a potential domestic violence situation in which both Lisa
and the child reasonably appeared in immediate danger.
McLemore was not charged with a crime of domestic violence.
Instead, he was charged with violating RCW 9A.76.020(1),
which provides in relevant part that "[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." In effect, McLemore contends that this statute
cannot be constitutionally applied to his inaction. "We
review such constitutional challenges de novo. In the context
of the First Amendment, this requires a review of the record
to determine that the conviction could not have been based
only on constitutionally protected speech."
E.J.J., 183 Wn.2dat5Ol (citation omitted) (citing
State v. Abrams, 163 Wn.2d 277, 282, 178 P.3d 1021
(2008)); U.S. Const, amend. I.
court has long "noted that [obstruction] statutes can
'result in disturbing intrusions into an individual's
right to privacy and can implicate other rights specifically
enumerated in the Bill of Rights.'" State v.
Williams, 171 Wn.2d 474, 481, 251 P.3d 877 (2011)
(quoting State v. White, 97 Wn.2d 92, 97, 640 P.2d
1061 (1982)). "To save the obstruction statute from
being unconstitutionally overbroad in a First Amendment
setting, we have construed the statute narrowly. Our cases
have consistently required conduct in order to
establish obstruction of an officer." E.J.J.,
183 Wn.2d at 501-02 (citing Williams, 171 Wn.2d at
485). We narrowly construe the obstruction statute even when
the parties are not directly raising a constitutional
challenge. Williams, 171 Wn.2d at 477-78.
this narrow construction for two reasons. First, we are
required to interpret statutes as constitutional, if
possible, and our narrowing construction accomplishes this
task. See In re Pers. Restraint of Matteson, 142
Wn.2d 298, 307, 12 P.3d 585 (2000) (quoting Addleman v.
Bd. of Prison Terms & Paroles, 107 Wn.2d 503, 510,
730 P.2d 1327 (1986)). We also limit the scope of this
statute to avoid chilling the exercise of constitutional
rights. See State v. Rupe, 101 Wn.2d 664, 705, 683
P.2d 571 (1984) (plurality opinion) (citing State v.
Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981)); see
also E.J.J., 183 Wn.2d at 501-02.
the refusal to open one's own door to a warrantless entry
would be enormously chilling and inconsistent with our deeply
held constitutional values. As the United States Supreme
From earliest days, the common law drastically limited the
authority of law officers to break the door of a house to
effect an arrest. Such action invades the precious interest
of privacy summed up in the ancient adage that a man's
house is his castle. As early as the 13th Yearbook of Edward
IV (1461-1483), at folio 9, there is a recorded holding that
it was unlawful for the sheriff to break the doors of a
man's house to arrest him in a civil suit in debt or
trespass, for the arrest was then only for the private
interest of a party. Remarks attributed to William Pitt, Earl
of Chatham, on the occasion of debate in Parliament on the
searches incident to the enforcement of an excise on cider,
eloquently expressed the principle:
"The poorest man may in his cottage bid defiance to all
the forces of the Crown. It may be frail; its roof may shake;
the wind may blow through it; the storm may enter; the rain
may enter; but the King of England cannot enter-all his force
dares not cross the threshold of the ruined tenement!"
Miller v. United States, 357 U.S. 301, 306-07, 78
S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (footnotes omitted)
(quoting The Oxford Dictionary of QUOTATIONS 379 (2d ed.
1953)). Even under the more limited protections afforded by
the Fourth Amendment than our own constitution, "[w]hen
law enforcement officers who are not armed with a warrant
knock on a door, they do no more than any private citizen
might do. And whether the person who knocks on the door and
requests the opportunity to speak is a police officer or a
private citizen, the occupant has no obligation to open the
door or to speak." Kentucky v. King, 563 U.S.
452, 469-70, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing
Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct.
1319, 75 L.Ed.2d 229 (1983) (plurality opinion)); U.S. Const,
amend. IV; see also United States v. Prescott, 581
F.2d 1343, 1350-51 (9th Cir. 1978) (holding the right to
refuse a warrantless entry is not a crime or evidence of a
crime (citing Camara v. Mun. Court, 387 U.S. 523,
528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); District of
Columbia v. Little, 339 U.S. 1, 7, 70 S.Ct. 468, 94
L.Ed. 599 (1950))). Similarly, our Court of Appeals found the
refusal to allow an officer into a home without a warrant was
not sufficient to sustain an obstruction conviction.
State v. Bessette, 105 Wn.App. 793, 799, 21 P.3d 318
(2001). The officer had been pursuing a juvenile who was
spotted holding a beer bottle. Id.
the limited construction of the statute required by our
constitution, a defendant's conduct that amounts to
passive delay will not sustain an obstruction
charge. As we ruled recently in a case where a
juvenile defendant refused to retreat into his home while
police were arresting his sister in the front yard:
That E.JJ.'s behavior may have caused a minor delay is of
no import. Although the officer's request that E.J.J,
return to his home and close both doors might have been an
attempt for a more convenient resolution of the
situation, "[s]tates cannot consistent with our
Constitution abridge those freedoms to obviate slight
inconveniences or annoyances."
E.J.J., 183 Wn.2d at 506 (quoting Giboney v.
Empire Storage & Ice Co.,336 U.S. 490, 501-02, 69
S.Ct. 684, 93 L.Ed. 834 (1949)). Lack of cooperation does not
become obstruction of justice merely because it causes the
police delay. "As a general proposition, there is no
obligation to cooperate with the police." State v.
D.E.D.,200 Wn.App. 484, 494, 402 P.3d 851 (2017)
(citing State v. Budik,173 Wn.2d 727, 272 P.3d 816
(2012)). "The duty imposed by the obstructing statute is
not to hinder or delay the police investigation; there is no
duty to cooperate." Id. at 495 (citing
State v.Holeman,103 Wn.2d 426, 693 P.2d
89 (1985)).[4 ...