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Man Convicted Of Obstruction For Refusing To Open His Door For Police

If his conviction stands, it could criminalize people who refuse to do things like unlock their phones or garages at police request.

John Moore/Getty Images

Man Convicted Of Obstruction For Refusing To Open His Door For Police

If his conviction stands, it could criminalize people who refuse to do things like unlock their phones or garages at police request.

Shouting voices coming from an apartment building broke the suburban quiet in the early hours of March 1, 2016.

A man walking past called officers to the Seattle-area apartment, reporting a loud argument. The yelling had stopped when police arrived outside Solomon McLemore’s Shoreline home, but was replaced by amplified demands from police that McLemore come out or let them in. As the incident stretched on, frustrations grew.

“Open the fucking door,” one officer demanded during the 15-minute exchange.

McLemore declined and stood by as police, having heard glass shatter inside the home, broke down the door. No one inside was hurt. But McLemore was arrested on suspicion of obstruction of a law enforcement officer for failing to open his home to police. He was convicted as charged on Sept. 29, 2016, following a three-day jury trial. Sentenced to 20 days under house arrest, McLemore began a series of appeals that landed his case in the Washington Supreme Court, which is expected to hear oral arguments Thursday.

If McLemore’s conviction stands, Washington would most likely be the only state to criminalize the refusal to assist police in a warrantless search.

His court-appointed attorney, David Iannotti, contends McLemore had no obligation to help police conduct a “community caretaking” search of his home.

Iannotti agreed police were within their rights to enter McLemore’s apartment. State appellate courts have held police may enter if officers reasonably believe someone needs immediate help. But Iannotti argues that the lawfulness of the search doesn’t obligate McLemore to assist in it.

“He didn’t fight with the officers. He didn’t do anything to prevent the officers from entering,” Iannotti said.

“The question isn’t whether the officers have a right to enter; the question is do you have an obligation to unlock the door for the officers,” he explained.

McLemore was convicted of obstruction of a law enforcement officer, a charge that criminalizes otherwise lawful conduct—standing on a sidewalk, remaining inside a home or leaving a parked car—that impedes a police officer. Critics sometimes deride the charge as “contempt of cop.” Whether a person’s behavior constitutes obstruction largely depends on the police view of that conduct, the American Civil Liberties Union of Washington has argued in McLemore’s case.

Obstruction charges can be brought in a broad range of circumstances, providing prosecutors and police an unusual amount of discretion in pursuing charges, said Nancy Talner, an attorney with the ACLU’s Seattle chapter. That breadth in discretion allows for arbitrary and racially disparate charging, and proves particularly problematic when people attempt to exercise their rights to privacy or free speech. But, according to the ACLU, no other jurisdiction has criminalized a person’s passive refusal to open their home to a warrantless intrusion.

The U.S. Supreme Court has long held that the Fourth Amendment requires authorities in most circumstances to obtain a warrant from a judge before forcing their way into a home.

Court decisions on when police can enter a home without a warrant teeter between protections against police overreach and the practicalities of emergency response. But residents aren’t required to conduct a constitutional analysis when facing a police officer without a warrant; courts have found they can assert their perceived right to privacy as long as they don’t commit another crime to do so.

The intrusion into McLemore’s home was ruled to be justified because officers reported hearing glass shatter inside the home. Prosecutors contend McLemore broke the law because his refusal to assist delayed a legitimate search of his home.

Washington’s Supreme Court previously ruled residents cannot be accused of obstruction for speaking or refusing to speak. But an untested 2011 appeals court decision may have cleared the way for obstruction charges against people like McLemore who ignore requests from police.

That Washington Court of Appeals decision upheld the conviction of Ronald Steen, who was charged with obstruction after failing to leave his travel trailer at the request of police officers.

One of the officers responding to a report of a disturbance on a rural property ultimately climbed through a window on the trailer, they said, to check inside for injured people. They found Steen, whom they arrested. Steen refused to give police his name, which is allowed under Washington law, but was charged with obstruction for failing to leave the trailer when police knocked.

In a 2-1 decision, the appellate panel upheld Steen’s conviction with the majority citing an earlier decision related to a man arrested after refusing to leave his car during a traffic stop. The majority opined that “an individual’s willful refusal to obey a lawful police order may constitute obstruction if the refusal hinders, delays, or obstructs the officer.”

The dissenting judge noted that common law and Washington state law affords special protection against searches of a person’s home, and cited a then-six-month-old U.S. Supreme Court decision.

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do,” Justice Samuel Alito wrote for the majority in that decision, Kentucky v. King. “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.”

The state Supreme Court declined to hear an appeal of the Steen case, which has been used to support McLemore’s conviction. Iannotti said a decision in favor of McLemore would most likely invalidate the earlier appeals court decision.

In a brief supporting McLemore, the ACLU, the Washington Association of Criminal Defense Lawyers, and the Washington Defender Association called for a reversal. Washington, they noted, “appears to be the only jurisdiction in which an individual can be convicted for peacefully refusing a warrantless home intrusion.”

“Washington appears to be alone in applying an obstruction statute this way,” attorneys for the organizations opined in the amicus brief. “Amici are aware of no case, from any jurisdiction, holding that a resident can commit obstruction merely by refusing to acquiesce when an officer demands warrantless entry to a home. …

“Where the privacy of the home is at stake, courts have uniformly held that the crime of obstruction does not encompass acts such as closing a door, locking a door, or refusing to unlock a door.”

Briefing the Supreme Court, a city of Shoreline prosecutor cast the question before the court as “whether a homeowner who purposefully obstructs an officer’s lawful constitutional entry into his home may be punished for his behavior.”

“Where an officer is licensed to make an entry, a person’s resistance, whether passive or active, to an officer’s lawful entry may result in consequences,” Assistant City Prosecutor Carmen McDonald argued in court papers.

“It is black letter law that a person may not be penalized for exercising a constitutional right,” McDonald continued. “A person may, however, be penalized for refusing to cooperate with a lawful order.”

Testifying at trial, McLemore said the lawfulness of the police intrusion stood at the front of his mind when he refused to help officers enter his home. He said he was afraid that, whatever the officers were going to do once they came inside, it “was not going to be good” for him or his family.

“I said [to an officer], look man, you’re violating my civil rights,” McLemore told the jury. “I said I have rights. … I thought I was acting on my Fourth Amendment.”

When McLemore’s jury asked the court during deliberations to clarify whether McLemore had “the legal obligation to follow police instructions,” jurors were told to review the directions they were given.

Iannotti and the ACLU contend the framework put forward by prosecutors could lay the groundwork for obstruction charges against people who refuse to do things like unlock their phones or garages at police request. It makes it dangerous for residents to stand up for their rights.

“You have a right to be free of searches without a warrant,” Iannotti said. “A person shouldn’t be penalized for exercising that right.”

Mother's Lawsuit Says Oklahoma Prison Failed to Prevent Her Daughter’s Death

New development in a high-profile case comes as advocates question the state’s prison conditions and sentencing practices.

Photo illustration by Anagraph / Video still via Oklahoma Watch

Mother's Lawsuit Says Oklahoma Prison Failed to Prevent Her Daughter’s Death

New development in a high-profile case comes as advocates question the state’s prison conditions and sentencing practices.

On Oct. 24, 2016, Amber Hilberling was found hanging in her prison cell at the Mabel Bassett Correctional Center near McLoud, Oklahoma, according to news reports. While the state medical examiner ruled the death a suicide, Hilberling’s family has expressed doubts that she would kill herself.

Her mother, acting as an agent of Hilberling’s estate, recently filed a lawsuit against the Oklahoma Department of Corrections (ODOC), claiming “inadequate supervision and classification that permitted the manipulation, coercion, and sexual exploitation of Hilberling throughout her detention.” In early October, the case got the green light to proceed when the ODOC’s motion to dismiss was denied.

At the time of her death, Hilberling was serving a 25-year sentence for second-degree murder stemming from her pushing her husband, Joshua Hilberling, who then fell through a window of their 25th-floor apartment in June 2011.

Hilberling, who was 19 years old and seven months pregnant at the time of her husband’s death, maintained she was the victim of domestic violence. She testified that he grabbed her shoulder, and she pushed him to protect herself and their unborn baby. The state claimed she had been violent toward her husband before; a month prior to his death he had reportedly received an emergency protective order against her.

Before trial, Hilberling rejected a plea deal that would have resulted in a five-year sentence. Her legal team told a local news station she went through with the trial instead in the hopes of being able to stay with her infant son.

The suit against the ODOC alleges that on the day of Hilberling’s death, several security failures at the correctional center put her life at risk, including inoperable surveillance equipment and “phantom security checks or security checks that were so inadequate that Hilberling (or others) were able to obscure the activities inside the cell door by covering the window.”

In the months leading up to Hilberling’s death, the suit claims, the ODOC failed to protect Hilberling from fellow prisoners with “well-known predator tendencies.” It also alleges “inadequate medical and mental health care,” saying Hilberling was not consistently receiving the psychotropic medication she was prescribed.

Hilberling’s mother’s attorneys did not respond to requests for comment. The ODOC told The Appeal it would not comment beyond its court filing, which claims the lawsuit lacks specificity and should be dismissed.

Throughout her incarceration, Hilberling continued to maintain her innocence. In 2015, Hilberling told the talk show host Phil McGraw, “I pushed him off me,” after he grabbed her. “The window wasn’t supposed to happen.”

The ABC affiliate in Tulsa, Oklahoma, reported receiving a letter from Hilberling three days after her death, agreeing to their interview request because, she wrote, “I can’t let go of the hope that using my own voice in conversations about my own life will be the one and only chance I have to change the circumstances of my own reality.”

While the attention Hilberling’s case garnered is unusual—including television coverage, a book, and countless local and national news stories—her lengthy prison sentence wasn’t. Oklahoma has the highest rates of imprisonment for women and men in the country. “We’re keeping people an inordinate length of time, definitely way out of balance with other states,” Susan Sharp, author of Mean Lives, Mean Laws: Oklahoma’s Women Prisoners, told The Appeal.   

Sentencing practices, like Oklahoma’s 85 percent law, which requires people convicted of certain crimes to serve 85 percent of their sentence, contribute to the state’s high incarceration rates, as does its high rate of incarceration for nonviolent crime.

That has had a particularly devastating impact on women, Ryan Gentzler, director of Open Justice Oklahoma at the Oklahoma Policy Institute, told The Appeal. There are about 3,100 women incarcerated in Oklahoma, many of whom, like Hilberling, are also mothers to young children. Two-thirds of the women are incarcerated for a nonviolent offense, according to Gentzler’s analysis of 2015 data from the ODOC. “We choose to incarcerate more nonviolent offenders than most states,” Gentzler explained, “and women bear the brunt of that.”

Oklahoma’s state prisons are plagued by overcrowding—operating at 115 percent capacity—as funding has not kept pace with punitive sentencing policies, according to advocates. At Mabel Bassett Correctional Center, where Hilberling was incarcerated, there are 1,292 women in a facility built to hold 1,280.

Inadequate funding coupled with high incarceration rates have also led to high staffing turnover and anemic programming, advocates say. In fiscal year 2017, for instance, there were 1,549 correctional officers—whose starting pay is $12.78 an hour—for more than 19,000 incarcerated people. With an annual turnover rate of roughly 25 percent, the overwhelming majority of correctional officers have been with the ODOC fewer than five years. 

“Programs are problematic because there’s not enough slots for people to take classes, to have drug treatment, to have anything that might change their direction when they got out of prison,” Sharp said. Of prisoners released in fiscal year 2017 who qualified for substance abuse treatment, just 28 percent received it.  

Dilapidated conditions also plague ODOC facilities, according to the department’s presentation to the legislature in January 2018. Photographs depict holes in a water tank at Mack Alford Correctional Center that had been plugged with a broomstick and a toothbrush. The caption reads: “Without them the facility would not have water.”

“With their budget limitations, there’s only so many of those deck chairs that they can rearrange,” said Gentzler. “It’s just in a constant state of emergency.”

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Missouri's parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

Missouri's parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

What you’ll read today

  • Spotlight: Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

  • Introducing the ‘Appeal: Political Report’ website

  • Secretive campus cops patrol already overpoliced neighborhoods

  • People charged with illegal entry posting bail, but judges find new ways to deny freedom

  • Women in prison punished more often and more harshly than men

  • El Paso cops sued for civil rights violations against children

In the Spotlight

Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

In 2016, the Supreme Court, ruled 6-3 in Montgomery v. Louisiana that its 2012 decision in Miller v. Alabama banning mandatory life without parole sentences must be applied retroactively. Montgomery made clear the Court’s belief that life without parole sentences for crimes committed by youth should be reserved for the rarest of rare cases. States were also presented with options: Instead of resentencing the hundreds of people who were affected by the decisions, they could make them eligible for parole. [Adam Liptak / New York Times]

Soon after Montgomery was decided, Amy E. Breihan of the MacArthur Justice Center’s St. Louis office penned a piece condemning Missouri’s courts and its legislature for their “remarkable reluctance in bringing the state in line with Miller.” Approximately 80 people in the state’s prisons were serving life without parole sentences “imposed under an unconstitutional sentencing scheme in which judges and juries were required to condemn juvenile offenders to spend the remainder of their young lives in prison.” [Amy E. Breihan / St. Louis Post-Dispatch] Missouri’s life without parole sentences also disproportionately affected young people of color: only 20 percent of state residents are people of color, compared to nearly 60 percent of those in prison on juvenile life without parole sentences. [Prison Policy Initiative]

That year, Missouri had enacted a law, Senate Bill 590, that gave people serving juvenile life without parole (JLWOP) sentences the right to petition for parole review of their sentences after they had served 25 years. The law mandated the consideration of 15 factors—five more than in ordinary parole proceedings—in evaluating eligibility for release. [Robert Patrick / St. Louis Post-Dispatch] Parole hearings, as an alternative to resentencing hearings, have the advantage of ruling out the possibility of prosecutors seeking and courts imposing sentences that, while not formal life without parole sentences, still exceed the life expectancy of the person sentenced. [Kate Wheeling / Pacific Standard]

Yet Missouri’s parole review process has, according to an order issued last Friday, failed to provide those up for parole with the “meaningful and realistic opportunity to secure release upon demonstrated maturity and rehabilitation.” The order came in a lawsuit brought by the MacArthur Justice Center and the law firm Husch Blackwell on behalf of four plaintiffs. More than 90 people incarcerated in Missouri are similarly situated and the lawsuit was granted class certification in June.  Nearly 85 percent of those seeking release have been denied since Missouri enacted SB 590. [Robert Patrick / St. Louis Post-Dispatch]

The court found that the parole board limits people’s access to information about the parole review process and gives them little opportunity to show evidence of rehabilitation. A person seeking release can have only one delegate present on their behalf. That delegate cannot speak to anything beyond the person’s “transition to the community.” Judge Nanette K. Laughrey wrote that the “[d]elegates—whether lawyers or not—are foreclosed from advocating for consideration of the Miller factors and other factors that the Board is required to consider.” People seeking release also have no access to the parole files and victim and prosecutor statements. After the hearing, the parole board communicates its decisions in two-page “barebones, boilerplate form,” that allowed for only two reasons for denial: the seriousness of the original offense or person’s “inability to … remain at liberty without again violating the law.” [Order in Brown v. Precythe]

Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland, the plaintiffs in the case, were all sentenced to life without the possibility of parole as teenagers and have all been incarcerated for at least 25 years. Each was denied after petitioning for parole release. Roland “has not had a conduct violation in at least 15 years” and has been in the honor dorm for 13 years. He has also held a job in the factory or workhouse areas of the prison for at least 15 years. Ronald was denied release based solely on the circumstances of his offense. [Order in Brown v. Precythe]

Brown was only 15 when he participated in the homicide for which he was sentenced. A forensic psychological evaluation concluded that Brown’s involvement “was the product of a vulnerable adolescent being manipulated by a powerful adult rather than the product of bad character.” It also found that Brown has “long since outgrown the antisocial behavior of his youth,” that his “psychological risk factors for future violence and criminality are low,” and that “he has developed a skill set that would allow him to be a viable and productive member of society should he be granted parole.” Judge Laughrey wrote that by the parole board’s own standards, Brown has been a model incarcerated person. The only substantive reason provided for his denial was the circumstances of his underlying conviction. [Order in Brown v. Precythe]

The court has given the parole board 60 days to devise a plan “designed to ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.” [Robert Patrick / St. Louis Post-Dispatch]

Introducing the ‘Appeal: Political Report’ Website

We are excited to announce The Appeal: Political Report, a new website that focuses on the local politics of criminal justice reform and mass incarceration. It features stories, as well as tools with which to explore local developments around the country. In the run-up to the November election, the website highlights and details the key state- and county-level elections that will shape criminal justice, law enforcement, or immigration policy.

Stories From The Appeal

A Temple University police officer. [Photo Illustration by Anagraph /
Video still via Temple University Campus Safety]

Secretive Campus Cops Patrol Already Overpoliced Neighborhoods. Campus police forces have become more professionalized, but critics say they operate behind a veil of secrecy and often exceed their jurisdiction. [Ryan Briggs]

Stories From Around the Country

People charged with illegal entry posting bail, but judges find new ways to deny freedom: In San Diego, the federal government has been forced to change tactics in its “zero tolerance” immigration policy. People being prosecuted for illegal reentry were typically held on bail they could not pay and then, after the government had obtained a conviction, deported. But the Bail Project, a nonprofit, began posting bail for those charged with illegal re-entry a few months ago. Because of immigration detainers, those people for whom bond was posted were then immediately transferred to ICE custody and deported—without the U.S. Attorney’s Office obtaining the misdemeanor convictions it sought. In response, the government has now stopped placing immigration detainers on people so it can criminally prosecute them. The shifting landscape led to an unusual and, according to defense attorneys, unprecedented development last Tuesday when a U.S. magistrate judge in San Diego ordered that each defendant find and be under the responsibility of an approved “third-party custodian” as a condition of their release. As of Friday, none of the 50 defendants in question had been able to meet the condition. [Kristina Davis / San Diego Tribune]

Women in prison punished more often and more harshly than men: A new investigation by NPR and the Medill School of Journalism has found that women in prison in Illinois and around the country face higher rates of discipline than men, mostly for minor, subjective rule violations. Incarcerated women in Vermont were three times more likely than men to be disciplined for “making a derogatory comment” and in Indiana they were almost three times as likely for refusing to obey an order, and nine times as likely for being a “habitual rule violator.” Women also receive harsher punishment for the same rule violations—including solitary confinement, the loss of good time, being placed in physical restraints, and denial of phone privileges. Advocates call for greater trauma-informed practices, instead of punishment, to support rehabilitation and recovery, given the high likelihood that women in prison have experienced physical or sexual abuse—in 2010, an Illinois study found that 98 percent of women in prison had experienced physical abuse before their incarceration and 75 percent had experienced sexual abuse. [Jessica Pupovac and Kari Lydersen / Chicago Reporter]

El Paso cops sued for civil rights violations against children: Four El Paso police officers are being sued over two incidents, from 2016 and this year. The lawsuits were brought by the mothers of eight children, whose civil rights are alleged to have been violated. In 2016, despite being in her own backyard, a 16-year-old girl was violently arrested on suspicion of trespassing and was subjected to a search that included a search of her bra by a female officer. This year, an officer pointed a handgun at a group of children while responding to a call about suspected trespassing. That officer, Jose Rivas, was also involved in the 2016 incident when it was alleged that he, “knocked [the girl’s] cell phone from her hand, kicked her, grabbed her hair and threw her to the ground.” At a news conference announcing the lawsuits, a lawyer for the parents said: “If the internal affairs or his supervisors would’ve taken appropriate action in 2016, perhaps we wouldn’t have an entire group of children who are now going to be traumatized for the rest of their lives having a had a gun pointed at their face because maybe this officer either would have learned from this or no longer been an officer.” [Daniel Borunda / El Paso Times]

Thanks for reading. We’ll see you tomorrow.

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