Probation Condition Banning “Hostile Contact” with Police Is Unconstitutionally Vague

From today’s decision in State v. Shreve, written by Judge Erik Price and joined by Chief Judge Rebecca Glasgow and Judge Bernard Veljacic:

In March 2022, Shreve attended a party at a hotel. Around 4:00 a.m., he got into a physical altercation with another individual at the hotel. A hotel security guard intervened. When approached by the security guard, Shreve drew a knife and lunged toward him. The security guard blocked the attack and disarmed Shreve. The security guard confiscated the knife and brought Shreve to the lobby.

Police were dispatched. Upon arrival, Officer Hannity saw Shreve seated in the lobby while the security guard stood nearby. Shreve appeared to be intoxicated and angry. Although Officer Hannity and the security guard initially decided to allow Shreve to leave the hotel without his knife, Shreve escalated the situation by suddenly and aggressively moving toward the security guard. As the security guard and the other police officers at the scene told Shreve to leave the hotel premises, Shreve attempted to elbow two nearby officers. The officers forced Shreve to the ground and attempted to handcuff him. Ultimately, Officer Hannity was forced to use his taser to subdue Shreve.

Shreve was initially charged with second degree assault with a deadly weapon enhancement and resisting arrest. But on June 30, 2022, Shreve pleaded guilty to a single count of second degree burglary as part of a Barr plea. {In re Pers. Restraint of Barr (Wash. 1984) (holding that a trial court may accept a guilty plea to an amended charge lacking factual support if the facts support the original charge).} … As a first-time offender, Shreve was sentenced to one day of confinement and twelve months of community custody. The sentencing court imposed several community custody conditions, including:

No hostile contact w[ith] law enforcement/first responders….

A condition is not unconstitutionally vague if (1) it defines the prohibited conduct so an ordinary person can understand what the condition means, and (2) it provides ascertainable standards to protect against arbitrary enforcement….

To satisfy the first prong of the vagueness inquiry, “the proscribed conduct is [required to be] sufficiently definite in the eyes of an ordinary person.” In other words, the community custody condition must inform the ordinary person of what conduct is prohibited. Still, “some level of ambiguity will always remain in community custody conditions.”

The underlying circumstances of the crime and related court documents may provide some context as part of the inquiry. The standard is not exacting; some uncertainty is permissible….. A condition is unconstitutionally vague when all of the terms with their dictionary definitions, considered together, are not sufficiently clear to inform an individual of ordinary intelligence what they can and cannot do.

Here, the term “hostile” has a wide variety of dictionary definitions, which is indicative of its imprecision in this context…. An individual’s conduct may be considered hostile when it is “marked by malevolence and a desire to injure,” but may also be considered hostile when it is “marked by antagonism or unfriendliness.” …

[And] even assuming Shreve could generally understand what “no hostile contact” means, the condition fails the second prong because it is overly susceptible to arbitrary enforcement. Considering that interactions with police officers are often investigative or even adverse in nature, separating hostile contact with law enforcement from an adverse, but non-hostile, contact is simply too subjective to be constitutional.

If an interaction occurred between Shreve and law enforcement, both sides would find themselves in the untenable position of attempting to assess whether and when the contact devolved from an ordinary level of acrimony to a violative level of hostility. Consider the hypothetical traffic stop—even in this most common of interactions with law enforcement, one person’s expression of frustration with receiving a ticket could, depending on many subjective factors, be considered an interaction with some level of hostility.

The State’s suggestion that the dynamics of this hypothetical interaction, if it involved Shreve, would be governed by an objective standard rooted in Shreve’s arrest records is simply unrealistic in the context of the fluid human interactions targeted by this condition. And ultimately, any truly assaultive behavior against law enforcement and first responders is already criminalized to a heightened degree commensurate with their difficult roles in our community….

However well-intentioned by the sentencing court to protect law enforcement and first responders from enduring undeserved aggressive interactions, this particular community condition cannot withstand constitutional scrutiny. The condition that Shreve have no hostile contact with law enforcement and first responders is unconstitutionally vague.

The court didn’t need to reach defendant’s separate argument that the restriction violated defendant’s free speech rights as well.

Lise Ellner represents the defendant.

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