Washington State Supreme Court Tries, Fails To Protect The Rights Of The State's Residents

from the no-points-for-effort dept

A correct conclusion was almost reached by the Washington Supreme Court… but it was foiled by the fact that only eight justices reviewed the case. Here’s the backstory to the decision that almost was, via Nick Sibilla of Forbes.

The case began more than three years ago in Shoreline, Washington when a late-night shouting match between Solomon McLemore and his girlfriend prompted a bystander to dial 911. When the officers arrived and repeatedly demanded to be let in, the yelling stopped though no one answered the door. After 15 minutes and still no response, police heard glass shattering and, suspecting domestic violence, began forcing their way inside. As the officers broke down the door, McLemore told police that they were infringing on his rights and that they needed a warrant. Officers also heard McLemore tell his girlfriend to tell police that she was ok.

Once inside, police determined that the woman was not injured and promptly threw McLemore in handcuffs. But McLemore wasn’t charged for domestic violence. Instead, police arrested McLemore for “obstructing a law enforcement officer,” which involves “willfully hinder[ing], delay[ing], or obstruct[ing] any law enforcement officer in the discharge of his or her official powers or duties.” For refusing to open his door to police, McLemore was convicted for obstruction and sentenced to 20 days of house arrest.

The issue before the court should have been a foregone conclusion, but the court’s headcount helped prevent that from happening.

Here’s the question: is a citizen obligated to grant the government access to their residence in the absence of warrant? The answer should obviously be, “No.” It certainly shouldn’t be obstruction charges. It’s not that there aren’t exceptions to the warrant requirement. It’s whether or not citizens have a legal duty to assist officers with their warrantless entry.

The officers definitely had a legitimate exception at their disposal. A report of possible domestic violence gives officers all the permission they need for a warrantless entry under the community caretaking function. Entering the apartment to ensure any possible victims weren’t in need of medical care or other assistance is justifiable. McLemore, however, refused to allow the officers to enter without a warrant.

But a valid warrant exception doesn’t automatically place a burden on homeowners to allow officers inside. McLemore’s refusal to open the door and, once officers were inside, refuse to help officers sort out the domestic situation shouldn’t be a crime. That was the conclusion originally reached by the nominal “majority” of the split court [PDF].

Criminalizing the refusal to open one’s own door to a warrantless entry would be enormously chilling and inconsistent with our deeply held constitutional values.


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.”


Under 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.

That was the correct conclusion to reach. It would have brought the state in line with the rest of the country. As the ACLU noted in its amicus brief, Washington is the only place where “an individual can be convicted for peacefully refusing a warrantless home intrusion.”

Less than a day after the court had decided to join the other 49 states in decriminalizing non-criminal behavior, the court recounted its votes and decided the tie was actually a loss for state residents.

It is hereby ordered that that the lead opinion of Gonzalez, J., filed April 18, 2019, in the above entitled case is changed as indicated below.

On page 17, line 2 of the slip opinion, beginning with “We”, strike all material down to and including “opinion.” on line 3 and insert:

We in the lead opinion would hold the city presented insufficient evidence to sustain McLemore’s conviction and remand to the trial court for further proceedings consistent with this opinion. However, we recognize this opinion has garnered only four signatures. “Therefore, there being no majority for the reversal of the judgment of the trial court, it necessarily stands affirmed, and the order of this court is that the judgment appealed from be and it is hereby affirmed.” Peterson v. City of Tacoma. 139 Wash. 313, 313, 246 P. 944 (1926).

Thanks to this reversal of its own reversal, cops can continue to arrest people for exercising their rights. That’s no way to run a judiciary. Equally concerning is the fact that four justices apparently decided the lousy status quo wasn’t worth upending. A reversion to an “enormously chilling” standard shouldn’t be an acceptable conclusion, but that’s all Washington residents have left until this is appealed to the highest court in the nation.

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Comments on “Washington State Supreme Court Tries, Fails To Protect The Rights Of The State's Residents”

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Anonymous Coward says:


If he was black he woulda been beaten and/or shot.

No, the perp didn’t have to assist the cops in their attempt to enter the appartment or in their attempt to question him, but the cops had a legitimate reason to break in. If they have no evidence of domestic abuse, there should be no charges. Apparently they were so pissed, that they just made up some charges.

Wyrm (profile) says:

Re: Wow

And that’s exactly what’s wrong with so many judgments in US.

Not willingly bowing to any demand from law enforcement is a crime in many ways. "Resisting arrest", even if the police didn’t have an actual cause to arrest you in the first place. "Contempt of court", with unlimited detention, for refusing to provide a password. And more examples can be found.
It seems like not being subservient to the police is a crime in itself.

See also, how the police regularly gets excuses for any abuse of power. "Good faith exceptions", "Forfeiture", "Fear for their life" and more allow them to both avoid consequence from stealing from, raping or killing innocents and even helps them salvage evidence that were illegally collected. (Yes, even when a judge admits the evidence is illegal, it sometimes still gets salvaged because the cop didn’t know better… or pretended not to.) The ones who are there to enforce the law are, curiously, the only one who are actually allowed to ignore it.

This all seems like the signs of a police state, not a democracy governed by the rule of law.

Rog S. says:

Re: Wow

um, no. Fuck no.

but the cops had a legitimate reason to break in

In the case of community policing, cops frequently stir the pot well in advance in these cases, frequently waging a gossip campaign against a "targeted individual” and contacting neighbors, urging them to call 911 for the slightest peep out of a targeted persons house.

Working with other NGOs, or DVIC subsidiary industries, and constantly escalating state activity against them, much as we saw in the case of Rakem Balogun, covered here at TD.


So, DV accusationsact as,a sort of "roving exigency”whereby cops stalk and target men, not because of DV, but because of activism, and more.

A short lust of mass shooters, or accused mass shooters reveals that unlitigated accusations of DV was used to target many, many of the men who eventually armed themselves, because they literally had no other recourse to justice from these marauding cops.

Rakem Balogun was lucky, compared to the following dead men, who, of course, tell no tales:

Mathew Riehl, stalked in law school for mocking the #Rapecult and #fakerape cults, died years later in CO

Scott Bierely, stalked for years by campus rape center morons, over an accusation of butt groping

Robert Dear, the abortion clinic bomber, Cosmo Setepenra, Ian Long, and so, so many more fell into this trap, and wete staljed across state lunes over ACCUSATIONS, rather than convictions.

Even Stephen Paddock got the full DVIC after death body punch from these gang stalking morons.

First they came under “exigent circumstances" for those unfortunate enough to fall into the unlitigated world of DV gray area slander….

Anonymous Coward says:

consitution ignored news at 11

yea, it sucks when the constitution gets ignored… but it’s also kinda bad when people that also ignore it are bitching about it.

First, stop being a hypocrite… you ignore it, they ignore it… everyone ignores it. This is not just some one off example. Pretty much everyone here wants one part or another of the constitution flat out ignored when it comes to their politics and then turn around and lambast other folks for doing the same damn thing.

Gary (profile) says:

Re: consitution ignored news at 11

Pretty much everyone here wants one part or another of the constitution flat out ignored

Please Cite.

I’d like copyright and patent laws that promote new works and the public good, rather than promoting censorship and locking down culture for two lifetimes.
I’d like illegal searches stopped. The bloody lobster backs would shake down whomever they wanted, our cops shouldn’t do that either.
I’d like the government to stop threatening to curtail free speech. Something the founders would approve of.

Pointing out that someone is ignoring the intention of the framers, and the law of the land isn’t hypocrisy, it’s legitimate criticism and an essential part of the "Free Press" which is one of the cornerstones of democracy.

Rog S. says:

Gendering DV and portraying women as victims, and men as aggressors is exactly how the Domestic Violence Industrial Complex (DVIC) got its foot in the door ( literally) to chew away at the constitution in the first place.

Its for the Children, of course!

The VAWA that Joe Biden and other paternalistic religious cowards “fought for" always had the intention of using women and children as shields to hide behind, and pass more bad laws, that circumvent Constitutional analysis.

Then, there were all the bullies and psychopaths of that era, on message, assaulting men, such as John Walsh, and Americas Most Wanted, and the theme song “Bad Boys…" which in itself echoes the worst biases that Catholic/Jewish/neocon unspecified are known for, and then, shitting all over research that indicates that women.initiate more/most DV.


Those who knew this, like the founder of the first DV shelter, Erin Pizzey, and Dr. Martin Fiebert, etc. were sidelined as the DVIC was built as an industry.

And here we are, total police state, as gendered narrative concocts an excuse for warrantless searches everywhere.

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