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.
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
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.
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.
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. 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
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
listening to the voicemail, Chief Dresker called Dawley.
Chief Dresker did not record the subsequent phone call, but
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.
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,
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?
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." 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." 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.
indicated that he wanted Esparza "to do [her] job. The
same thing with the police chief." Dawley also
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.
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.
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." Chief Dresker
arrested Dawley after Dawley filed the request.
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.
appeals his convictions for intimidating a public servant.
Constitutionality of RCW 9A.76.180
a statute is unconstitutionally overbroad under the First
Amendment presents a question of law that we review de
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.
"[t]he party challenging an enactment bears the burden
of proving its unconstitutionally." But in the
context of a First Amendment challenge, the State "bears
the burden of ...