FILED
OCT 22, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32859-7-111 Respondent, ) ) v. ) ) UNPUBLISHED OPINION NARIAH CORDOVA, ) ) Appellant. )
BROWN, J. - Nariah Cordova appeals her convictions for disorderly conduct and
obstructing a law enforcement officer. In an as-applied challenge, Ms. Cordova
contends the disorderly conduct ordinance found in Pasco Municipal Code (PMC)
9.06.010 is unconstitutional because it infringes on her First Amendment rights. Ms.
Cordova next contends her unlawful seizure cannot support an arrest for obstructing a
law enforcement officer. We disagree with Ms. Cordova's contentions and affirm.
FACTS
Officer Dean Perry of the Pasco Police Department responded to a call regarding
the location of Ms. Cordova, a reported teenaged runaway, at an area McDonald's.
Officer Perry and Ms. Cordova differ in their accounts of what subsequently transpired.
According to Officer Perry, as he was responding to the call, he learned Ms.
Cordova's mother was at the McDonald's with Ms. Cordova. When he arrived at the I
I f No. 32859-7-111 State v. Cordova 1 McDonald's, he noticed quite a few people in the dining area. He approached Ms.
Cordova and her mother, who were seated at a table, and saw Ms. Cordova loudly
arguing with her mother. After identifying himself as a police officer, Officer Perry
further noted Ms. Cordova's "behavior was belligerent and aggressive towards her
mother" and him. Report of Proceedings (RP) at 42. Ms. Cordova used foul language.
Officer Perry testified it was clear Ms. Cordova "was going to have her own way in this
situation or there was gonna be no way." RP at 42: As Ms. Cordova continued to yell
louder, people began to stop and watch, and her mother asked that the trio go outside
as Ms. Cordova's behavior "was clearly stopping business." RP at 43.
Ms. Cordova refused to go outside. Officer Perry, intending to escort her out,
grabbed her arm and elbow, putting her in a low-force escort hold. Ms. Cordova, still
not complying with his directives, decided to either fight or flee. Because he was aware
of the amount of traffic on the road near the McDonald's and the dangers of chasing a
runaway through that traffic, Officer Perry escalated the force used and rolled into an
arm bar technique. Ms. Cordova continued to struggle, which resulted in Officer Perry
pinning her against a counter so he could handcuff her; Ms. Cordova sustained a
scrape above her eye. Despite wanting to arrest her for disorderly conduct, Officer
Perry released Ms. Cordova to her mother.
According to Ms. Cordova and her mother, they were sitting quietly in
McDonald's, with Ms. Cordova talking in her normal voice, when Officer Perry
approached them. He loudly asked questions, which Ms. Cordova answered. When
No. 32859-7-111 State v. Cordova
Ms. Cordova's mother suggested they go outside, Ms. Cordova stood up to leave. After
rebuffing her mother's attempt to grab her hand, Officer Perry grabbed Ms. Cordova,
threw her into the counter, and said she was under arrest. Then, in response to Ms.
Cordova's comment Officer Perry "Iike[s] it rough," Officer Perry grabbed her head and
slammed it into the counter. RP at 122.
The juvenile court found Ms. Cordova guilty of disorderly conduct in violation of
PMC 9.06.010(1)(C) and obstructing a law enforcement officer. Ms. Cordova appealed.
ANALYSIS
A. Constitutionality of PMC 9.06.010(1 )(C)
The issue is whether PMC 9.06.010(1)(C) is unconstitutional as applied to Ms.
Cordova. PMC 9.06.010(1 )(C) reads: "A person is guilty of disorderly conduct if that
person does, with intent to cause or recklessly create a risk of public inconvenience,
annoyance or alarm: ... Engages in fighting or in violent, tumultuous, or threatening
behavior." Ms. Cordova contends her speech alone cannot constitutionally serve as the
basis for her conviction as (1) her speech was constitutionally protected under the First
Amendment, 1 (2) disorderly conduct ordinances have been limited to the use of fighting
words,2 and (3) her speech did not amount to fighting words.
1 Ms. Cordova solely argues her conviction is unconstitutional under the First Amendment to the United States Constitution. Thus, the applicability of the parallel state constitutional provision is not addressed. 2 "Fighting words are words whose very utterance inflict injury or tend to incite an immediate breach of the peace." State v. Montgomery, 31 Wn. App. 745, 754,644 P.2d 747 (1982) (citing Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103,31 L. Ed. 2d 408 (1972».
The Washington Supreme Court addressed a challenge to the constitutionality of
a similar Seattle ordinance prohibiting disorderly conduct on a bus, which included "loud
or raucous behavior" that "unreasonably disturbs others." City of Seattle v. Eze, 111
Wn.2d 22, 24, 759 P.2d 366 (1988) (quoting Seattle Municipal Code 12A.12.040(F)).
While the challenge in Eze related to the ordinance's overbreadth, the court's analysis is
instructive. The court first recognized the Seattle ordinance regulated behavior, not
pure speech. Id. at 31. The Eze court then held the ordinance, to the extent it affected
"speech," was not unconstitutional. !d. The court stated "restrictions on the volume of
speech do not necessarily violate the First Amendment, even when that speech occurs
in an area traditionally set aside for public debate-the so-called 'public forum.'" Id.
Here, Ms. Cordova fails to recognize the very terms of PMC 9.06.010(1)(C), like
that of the ordinance at issue in Eze, regulates behavior, not pure speech. Unlike the
cases she cites, Ms. Cordova was not charged with creating a disturbance by using
abusive, lewd, vulgar, obscene, or crude language. See Montgomery, 31 Wn. App.
745; City of Kennewick v. Keller, 11 Wn. App. 777, 525 P.2d 267 (1974); City of Pasco
v. Dixson, 81 Wn.2d 510, 503 P.2d 76 (1972). Neither Officer Perry nor the juvenile
court focused on Ms. Cordova's speech in finding her guilty of disorderly conduct.
Rather, they both focused on her conduct. The court's findings specifically state Ms.
Cordova's "conduct within the restaurant was intentional, tumultuous, and created public
inconvenience, annoyance, or alarm." Clerk's Papers at 100 (emphasis added). And
while Officer Perry testified Ms. Cordova used foul language, he also testified she was
not disorderly because of her words; instead, he believed Ms. Cordova committed
disorderly conduct by engaging in "tumultuous behavior likely to cause public alarm,"
namely her demeanor, her volume, and generally being disruptive. RP at 63. Thus, it
was Ms. Cordova's conduct, not her speech, that was the basis for her conviction; her
conviction for disorderly conduct under PMC 9.06.010(1 )(C) was constitutional.
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FILED
OCT 22, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32859-7-111 Respondent, ) ) v. ) ) UNPUBLISHED OPINION NARIAH CORDOVA, ) ) Appellant. )
BROWN, J. - Nariah Cordova appeals her convictions for disorderly conduct and
obstructing a law enforcement officer. In an as-applied challenge, Ms. Cordova
contends the disorderly conduct ordinance found in Pasco Municipal Code (PMC)
9.06.010 is unconstitutional because it infringes on her First Amendment rights. Ms.
Cordova next contends her unlawful seizure cannot support an arrest for obstructing a
law enforcement officer. We disagree with Ms. Cordova's contentions and affirm.
FACTS
Officer Dean Perry of the Pasco Police Department responded to a call regarding
the location of Ms. Cordova, a reported teenaged runaway, at an area McDonald's.
Officer Perry and Ms. Cordova differ in their accounts of what subsequently transpired.
According to Officer Perry, as he was responding to the call, he learned Ms.
Cordova's mother was at the McDonald's with Ms. Cordova. When he arrived at the I
I f No. 32859-7-111 State v. Cordova 1 McDonald's, he noticed quite a few people in the dining area. He approached Ms.
Cordova and her mother, who were seated at a table, and saw Ms. Cordova loudly
arguing with her mother. After identifying himself as a police officer, Officer Perry
further noted Ms. Cordova's "behavior was belligerent and aggressive towards her
mother" and him. Report of Proceedings (RP) at 42. Ms. Cordova used foul language.
Officer Perry testified it was clear Ms. Cordova "was going to have her own way in this
situation or there was gonna be no way." RP at 42: As Ms. Cordova continued to yell
louder, people began to stop and watch, and her mother asked that the trio go outside
as Ms. Cordova's behavior "was clearly stopping business." RP at 43.
Ms. Cordova refused to go outside. Officer Perry, intending to escort her out,
grabbed her arm and elbow, putting her in a low-force escort hold. Ms. Cordova, still
not complying with his directives, decided to either fight or flee. Because he was aware
of the amount of traffic on the road near the McDonald's and the dangers of chasing a
runaway through that traffic, Officer Perry escalated the force used and rolled into an
arm bar technique. Ms. Cordova continued to struggle, which resulted in Officer Perry
pinning her against a counter so he could handcuff her; Ms. Cordova sustained a
scrape above her eye. Despite wanting to arrest her for disorderly conduct, Officer
Perry released Ms. Cordova to her mother.
According to Ms. Cordova and her mother, they were sitting quietly in
McDonald's, with Ms. Cordova talking in her normal voice, when Officer Perry
approached them. He loudly asked questions, which Ms. Cordova answered. When
No. 32859-7-111 State v. Cordova
Ms. Cordova's mother suggested they go outside, Ms. Cordova stood up to leave. After
rebuffing her mother's attempt to grab her hand, Officer Perry grabbed Ms. Cordova,
threw her into the counter, and said she was under arrest. Then, in response to Ms.
Cordova's comment Officer Perry "Iike[s] it rough," Officer Perry grabbed her head and
slammed it into the counter. RP at 122.
The juvenile court found Ms. Cordova guilty of disorderly conduct in violation of
PMC 9.06.010(1)(C) and obstructing a law enforcement officer. Ms. Cordova appealed.
ANALYSIS
A. Constitutionality of PMC 9.06.010(1 )(C)
The issue is whether PMC 9.06.010(1)(C) is unconstitutional as applied to Ms.
Cordova. PMC 9.06.010(1 )(C) reads: "A person is guilty of disorderly conduct if that
person does, with intent to cause or recklessly create a risk of public inconvenience,
annoyance or alarm: ... Engages in fighting or in violent, tumultuous, or threatening
behavior." Ms. Cordova contends her speech alone cannot constitutionally serve as the
basis for her conviction as (1) her speech was constitutionally protected under the First
Amendment, 1 (2) disorderly conduct ordinances have been limited to the use of fighting
words,2 and (3) her speech did not amount to fighting words.
1 Ms. Cordova solely argues her conviction is unconstitutional under the First Amendment to the United States Constitution. Thus, the applicability of the parallel state constitutional provision is not addressed. 2 "Fighting words are words whose very utterance inflict injury or tend to incite an immediate breach of the peace." State v. Montgomery, 31 Wn. App. 745, 754,644 P.2d 747 (1982) (citing Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103,31 L. Ed. 2d 408 (1972».
The Washington Supreme Court addressed a challenge to the constitutionality of
a similar Seattle ordinance prohibiting disorderly conduct on a bus, which included "loud
or raucous behavior" that "unreasonably disturbs others." City of Seattle v. Eze, 111
Wn.2d 22, 24, 759 P.2d 366 (1988) (quoting Seattle Municipal Code 12A.12.040(F)).
While the challenge in Eze related to the ordinance's overbreadth, the court's analysis is
instructive. The court first recognized the Seattle ordinance regulated behavior, not
pure speech. Id. at 31. The Eze court then held the ordinance, to the extent it affected
"speech," was not unconstitutional. !d. The court stated "restrictions on the volume of
speech do not necessarily violate the First Amendment, even when that speech occurs
in an area traditionally set aside for public debate-the so-called 'public forum.'" Id.
Here, Ms. Cordova fails to recognize the very terms of PMC 9.06.010(1)(C), like
that of the ordinance at issue in Eze, regulates behavior, not pure speech. Unlike the
cases she cites, Ms. Cordova was not charged with creating a disturbance by using
abusive, lewd, vulgar, obscene, or crude language. See Montgomery, 31 Wn. App.
745; City of Kennewick v. Keller, 11 Wn. App. 777, 525 P.2d 267 (1974); City of Pasco
v. Dixson, 81 Wn.2d 510, 503 P.2d 76 (1972). Neither Officer Perry nor the juvenile
court focused on Ms. Cordova's speech in finding her guilty of disorderly conduct.
Rather, they both focused on her conduct. The court's findings specifically state Ms.
Cordova's "conduct within the restaurant was intentional, tumultuous, and created public
inconvenience, annoyance, or alarm." Clerk's Papers at 100 (emphasis added). And
while Officer Perry testified Ms. Cordova used foul language, he also testified she was
not disorderly because of her words; instead, he believed Ms. Cordova committed
disorderly conduct by engaging in "tumultuous behavior likely to cause public alarm,"
namely her demeanor, her volume, and generally being disruptive. RP at 63. Thus, it
was Ms. Cordova's conduct, not her speech, that was the basis for her conviction; her
conviction for disorderly conduct under PMC 9.06.010(1 )(C) was constitutional.
B. Obstruction of a Law Enforcement Officer
The issue is whether Ms. Cordova's conviction for obstruction of a law
enforcement officer was based on an unlawful seizure. Ms. Cordova contends Officer
Perry did not have a lawful basis for her arrest as he was not engaged in an official
police duty sufficient to support her conviction.
"A person is guilty of obstructing a law enforcement officer if the person willfully
hinders, delays, or obstructs any law enforcement officer in the discharge of his or her
official powers or duties." RCW 9A.76.020(1). To establish obstruction of a law
enforcement officer, Washington case law requires specific conduct. State v. EJ.J.,
183 Wn.2d 497,502,354 P.3d 815 (2015).
Officer Perry was at the McDonald's responding to a report of a runaway. Under
the Family Reconciliation Act, chapter 13.32A RCW, "a law enforcement officer is
unquestionably fulfilling his ... role as a community caretaker when he ... encounters
a child runaway or a child beyond the control of [her] parents." State v. A.A., 187 Wn.
App. 475, 488, 349 P.3d 909 (2015). Officer Perry's response to the report and his
subsequent arrival at McDonald's was thus an official duty. See State v. Turner, 103
Wn. App. 515,526, 13 P.3d 234 (2000) ("Officers are performing official duties ...
provided they were not acting in bad faith or engaging in a 'frolic' of their own."). While
there, Officer Perry observed behavior indicating Ms. Cordova would not go back home
with her mother. This behavior included acting belligerent, getting louder, and yelling at
Officer Perry, which in turn caused McDonald's patrons to stop and take notice of what
was occurring. This subsequent behavior constituted disorderly conduct.
At this point, Officer Perry asked Ms. Cordova to go outside. When she refused
and attempted to resist, she obstructed a law enforcement officer. 3 See id. (sufficient
evidence to support a conviction for obstructing a law enforcement officer as officer was
performing official duties when officer had reasonable suspicion defendant committed
the crime of public indecency by urinating in public and defendant refused to give his
name, threatened the officer, and lunged at the officer).
Affirmed.
3 In her brief, Ms. Cordova contends her seizure cannot be justified under the community caretaking exception to the warrant requirement and thus her seizure can only be justified on a suspicion of criminal activity, i.e., the disorderly conduct in violation of her First Amendment rights. She argues the community caretaking function allowed Officer Perry to approach her and ask her questions but did not authorize him to physically detain her. But Ms. Cordova did commit a crime in Officer Perry's presence while he was at the McDonald's performing an official duty. The seizure was lawful. No
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
Siddoway, C.J. K rsmo, J.
need exists to address whether his actions fell within the exception.