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.”