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State v. Dawley

Court of Appeals of Washington, Division 1

December 30, 2019


          Verellen, J.

         Jeremy Dawley asserts a facial challenge to RCW 9A.76.180, the intimidating a public servant statute. Specifically, Dawley argues the statute is unconstitutionally overbroad because it restricts a substantial amount of protected speech. Dawley contends the statute must be limited to true threats, serious expressions of the intention to inflict bodily harm upon or to take the life of another. Because the statute is a content based restriction on pure speech, it is subject to strict scrutiny and must be narrowly tailored to serve compelling state interests. We agree with Dawley that the statute is not narrowly tailored unless limited to true threats alone. Because the State concedes, and we agree, that there is insufficient evidence that Dawley made a true threat, we reverse his convictions for intimidating a public servant.


         In 2012, Dawley was discharged from the United States Navy after suffering a traumatic brain injury. Dawley lived in Oak Harbor. At night, Dawley regularly went on long walks with his friend, Efrain Palacios. Palacios and Dawley frequently called the Island County Communications (I-COM) nonemergency line to report traffic issues, parking violations, and other complaints.

         Between October and December 2016, Dawley complained to Kevin Dresker, the Oak Harbor chief of police, and Nikki Esparza, the city attorney, about the level of officer discretion in addressing his complaints. Dawley was also frustrated with the officer response time.

         On the evening of January 8, 2017, Palacios and Dawley went for a walk. Dawley called I-COM to report two illegally parked cars. The dispatcher requested that Dawley wait at his current location to talk with the responding officer. Officer Patrick Horn arrived and found Dawley sitting on a stump. Dawley had his service dog with him. Officer Horn shined his spotlight on Dawley.

         Officer Horn suggested that Dawley "carry a notebook with him so he could notate different violations that he saw and then he could give [I-COM] a call and to let us know what all those were" at one time.[1] While Officer Horn and Dawley were talking, another officer pulled up. Dawley became agitated. At trial, Officer Horn testified:

[Dawley] then told me not to get out of my patrol car or else his dog would attack. And I told Mr. Dawley if he let his dog attack me, I would be forced to shoot his dog. And he stated that he was aware of self-defense laws and that if I shot his dog, that he would in turn stab me. And that's when [the other officer] made the statement to him, "If you stab my partner, I'm going to have to shoot you."[2]

         On January 9, the day after the incident, Dawley left the following voicemail for Chief Dresker:

This is Jeremy Dawley again. I'm not getting a phone call back from you. So do I need to look up your address and literally show up at your house 'cause I'm that not afraid of you, and I'm that pissed off at your police officer. Urn, I need something done about last night. ... Is that how you guys do business? You and I, I thought we had good terms but apparently, that just went to shit last night, so true colors came out. So I want to know what the hell you want me to do. Like is this just like a personal thing, like I just have to handle it myself? Or are you going to take my complaint serious at some point? Like where do you want this to stop? ... I was the guy who was almost shot by the police department because I want people to start acting right. So if you could give me a call back that would be awesome. Thank you.[3]

         After listening to the voicemail, Chief Dresker called Dawley. Chief Dresker did not record the subsequent phone call, but he testified:

Mr. Dawley was upset with the officers and the contact he had with [Officers Horn] and he pretty quickly went to the fact that he was going to look up my information, information on my family and the city attorney, and that he would seek out certain groups to provide that information to ... .
... He said he was going to use . . . Green Beret tactics, and then he further explained that he would get the local populace to take the action so he wouldn't have to ... .
. . . [H]e wanted certain actions to take place, and he wanted them-quick responses. And these are these calls of the bushes and parked cars and those things and that he wasn't getting that, he wasn't happy, and that I wasn't doing anything about it.[4]

         Also on January 9, Chief Dresker spoke to the city attorney, Esparza, about the comments Dawley made concerning her and her family. Esparza called Dawley while Chief Dresker was present. Dawley allowed Esparza to record the phone call. During that call, Dawley said:

I really think something needs to be done about this. ... So, I mean, it's completely up to you. But if you guys aren't willing to draw the line, like I'm gonna protect myself. I'm not saying I'm gonna come after you guys 'cause that's-I'm not a murderer, I'm a law-abiding citizen. . . .
Thank you much for making me feel unsafe in my community that I've never done anything wrong in. I hope you feel safe though. You feel safe, ma'am? Do you feel safe at your house when you go to sleep?[5]

         Esparza asked Dawley about his phone call with Chief Dresker. Dawley stated, "I just said that I felt others in the community would like to know your whereabouts, your picture, the picture of your children. I mean, that's legal. I can do that."[6] Dawley went on to say, "[I]t's a community improvement project, you know. It's a Green Beret tactic where you teach the locals, so it's nothing illegal. I'm not obligating or even insisting that they do anything illegal. All I'm doing is I told them I would provide the information."[7] When Esparza clarified Dawley's statements, he stated:

I can educate whoever I like on any matter of personal defense, offensive offense. That's not illegal, so you cannot be upset about that. And as far as providing your picture and stuff, they already know who you are. So I'm not doing anything illegal. I'm not saying I'm gonna ask 'em to go and do anything illegal to you, no. I didn't do anything like that.[8]

         Dawley indicated that he wanted Esparza "to do [her] job. The same thing with the police chief."[9] Dawley also indicated:

And I don't want to be assaulted by, assaulted by your police officers, killed by your police officers, otherwise harassed by your police department. Your ICOM dispatch is going to continue to take my complaints. They're not illegal, they're not ill founded.[10]

         Later in the same phone call, Dawley stated:

[L]et's just say hypothetically ... I was going to say, "Hey, you know what, I'll do a direct mailing to the pedophiles and the rapists and the violent offenders, and I'll have 'em sent to your house because . . . you make me feel unsafe. I can't defend myself. . . .You're in your home, you have your gun, you're comfortable, you're not on the street, you know what to do if somebody approaches your home. No, that's not right, that's not what you did to me. And what you did to me as a city is you made me feel completely unsafe, not once but twice now. Your officers have put me into killing range with a firearm. A firearm, ma'am! What happens if I came to your house and I put you into killing range with a firearm, right? You'd be upset.[11]

         On January 10, Dawley filed a public record request at the Oak Harbor Police Department. He sought records on "[v]iolent offenses that resulted in physical harm and offenders to include sexual assaults."[12] Chief Dresker arrested Dawley after Dawley filed the request.

         The State charged Dawley with three counts of intimidating a public servant and one count of telephone harassment. The jury convicted Dawley of two of the counts of intimidating a public servant and the single count of telephone harassment.

         Dawley appeals his convictions for intimidating a public servant.


         I. Constitutionality of RCW 9A.76.180

         Whether a statute is unconstitutionally overbroad under the First Amendment presents a question of law that we review de novo.[13]

Because of the important rights protected by the First Amendment, the overbreadth doctrine allows a litigant to challenge a statute on its face, rather than as applied to his own facts, and have a statute invalidated for overbreadth where it would be unconstitutional as applied to others even if not as applied to him.[14]

         Usually, "[t]he party challenging an enactment bears the burden of proving its unconstitutionally."[15] But in the context of a First Amendment challenge, the State "bears the burden of ...

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