D. O. v. Richey

18

Argued and submitted August 1, reversed December 4, 2019

D. O.,

Petitioner-Respondent,

v.

Eli Franklyn RICHEY,

Respondent-Appellant.

Multnomah County Circuit Court

17SK02618; A166855

456 P3d 348

Respondent, a self-identified citizen journalist and police watchdog, appeals a

judgment and stalking protective order (SPO) prohibiting contact with petitioner,

a police chief. He contests the sufficiency of the evidence supporting the SPO,

arguing that the SPO erroneously relied on constitutionally-protected speech,

and that petitioner failed to prove that her alarm was objectively reasonable.

Held: The record contains insufficient evidence to permit issuance of an SPO.

Petitioner offered three potential contacts to support her request, two of which

involved expressive communication and nonexpressive conduct that failed to

meet the respective standards for causing objectively reasonable alarm. Because

the first two encounters cannot serve as requisite contacts, the record contains

insufficient evidence of repeated unwanted contacts, regardless of whether the

third incident could qualify.

Reversed.

Adrienne C. Nelson, Judge.

Jesse Merrithew argued the cause for appellant. Eli

Franklyn Richey filed the opening brief pro se. On the reply

brief were Jesse Merrithew and Levi Merrithew Horst PC.

Denis M. Vannier argued the cause and filed the brief for

respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

Powers, Judge.

DeVORE, J.

Reversed.

Cite as 301 Or App 18 (2019) 19

DeVORE, J.

Respondent appeals a judgment and stalking pro-

tective order (SPO), prohibiting contact with petitioner, a

police chief. Respondent contests the sufficiency of the evi-

dence supporting the SPO. He argues that the SPO errone-

ously relied on constitutionally protected speech and that

petitioner failed to prove that her alarm was objectively rea-

sonable. We agree with respondent as to two of the three

contacts and need not consider the third contact. As a result,

we conclude that the evidence does not suffice to support an

SPO. We reverse.1

Because this is not an “exceptional case” warrant-

ing de novo review, we review the trial court’s factual find-

ings for “any evidence” and its legal conclusions for errors of

law. See ORAP 5.40(8)(c) (de novo review only in exceptional

cases); Miley v. Miley, 264 Or App 719, 720, 335 P3d 853

(2014). In doing so, we view the evidence, as well as all rea-

sonable inferences that we draw from it, in the light most

favorable to granting the petition. Delgado v. Souders, 334

Or 122, 134, 46 P3d 729 (2002).

FACTS

Respondent is a self-described citizen journalist and

police watchdog (or “Cop Watcher”). He has been known to

film on-duty police officers and to post those videos online.

Petitioner, a chief of a police department, became aware of

respondent’s activities after joining the police department,

when she received a briefing on individuals with arrest

records or probation conditions related to unwanted contact

with public officials. Petitioner learned that respondent had

visited the home of the district attorney wearing a ski mask,

as well as visited the home of the previous police chief.

Petitioner was informed that, as part of a criminal judg-

ment, respondent had probation conditions restricting his

proximity to the personal residences of government officials

and that respondent had been accused of violating some pro-

bation conditions in that case.2 Petitioner was also told that

1

Respondent’s alternative arguments need not be addressed.

2

The judgment on that alleged probation violation, of which the trial court

took judicial notice upon petitioner’s request, determined that respondent was

not in violation of his probation conditions.

20 D. O. v. Richey

respondent had made a comment to a female police officer

“that was inappropriate and sexual in nature,” and that he

had filmed and made a “sexually inappropriate comment” to

a woman with a stroller, leading the woman to file a police

report.

Petitioner sought the SPO against respondent, pur-

suant to ORS 30.866, after multiple personal encounters,

all of which were captured on video. The first, which we will

refer to as the “street encounter,” occurred on December 8,

2017. Petitioner testified that, at that time, she was walking

downtown from the City Hall to the police department’s cen-

tral precinct, accompanied by two male city staff. She was

on duty, displaying her badge, and armed with a firearm.

Petitioner noticed respondent when she heard him yelling

from across the street. She made out a name, an acronym,

“something like Nazi,” and “wheel of fortune,” but otherwise

could not distinguish his words. Hoping to avoid respondent,

petitioner and her companions waited to cross and continued

walking down the block. Respondent trailed on the other

side of the street, appearing to film. When petitioner and

her companions reached the end of the block, they decided

to cross. The companions stepped in front of petitioner “to

create a buffer” between her and respondent.

Respondent’s video began around that point in the

encounter. It started with petitioner and her companions

on the opposite side of the intersection, waiting to cross.

Twenty-five seconds passed. Petitioner, in uniform, was

talking on her cellular phone. Respondent waited in silence.

When the pedestrian traffic signal changed, petitioner and

her companions stepped out into the street. As they did,

respondent shouted, apparently in reference to the pedes-

trian traffic signal shown in the video’s frame, “These aren’t

always working. Just to throw it out there.” As petitioner

approached, respondent addressed her by her title, speaking

loudly:

“[RESPONDENT]: [O]n, uh, April—on June 27th, I was

assaulted, and the [police department] told the media that

I was part of the assault. Um, also, um, officers booked a

man named Timothy Dennis into custody—Multnomah

County—under my name. Uh, any comment?

Cite as 301 Or App 18 (2019) 21

“[Addressing petitioner’s companions] Are you her han-

dlers? No? One—two—

“I’m just wondering who you—I’m, I’m really interested

to say I wanted to make it a better place—and, and, and,

and, and, and, and, and, and—I hope you guys see that.

“[PETITIONER]: Thank you.

“[RESPONDENT]: Have a good afternoon.

“[PETITIONER]: Have a good evening.

“[RESPONDENT]: Good evening—correct! Look at that,

dude. I’m telling you. That’s good.”

At that point in the video, petitioner entered the

building of the police department’s central precinct, her

companions kept walking down the sidewalk, and respon-

dent went in another direction. Still recording, respondent

said into the microphone, “Two minutes. Chief [petitioner].

She’s out of here. It’s a good video, you guys.” He continued,

“And so I filmed the police, you guys. Because it’s necessary.

And not everybody could do it.” The video concludes soon

after.

The video showed that respondent appeared to

maintain a six- to eight-foot distance between himself and

petitioner throughout the exchange. Respondent walked

ahead of petitioner and her companions with the camera

pointing back in their direction. The entire video lasted two

minutes, of which, 50 seconds was the time that elapsed

between petitioner crossing the street and entering the pre-

cinct building.

Petitioner testified that she found that encounter

alarming for several reasons. She cited respondent’s

“screaming” and following her from across the street. Once

petitioner crossed the street, she noted respondent “plac[ing]

himself in front of [her],” having the “camera in front of [her]

face,” and his failure to “create a very significant distance

between the two of [them].” Petitioner said that respondent

engaging in that conduct “told [her] that he was there with

the intent to do something far more than to provide [her]

with information, or inform [her] of any police accountability

22 D. O. v. Richey

matters.” She said that he “wasn’t whispering, he wasn’t

speaking in a normal conversation[al] voice.” Petitioner also

highlighted respondent’s height, over a foot taller than her

own, and her “inherent knowledge of him.”

The second encounter, which we will refer to as the

“Safeway encounter,” occurred on a Sunday afternoon two

days later. Petitioner was shopping with a family member at

a Safeway grocery store downtown, about a half-mile from

the police department’s central precinct. Petitioner testified

that they were preparing to leave and waiting for an elevator

when someone addressed her by her title. It was a “friendly

voice” that “sounded welcoming.” Although petitioner was

dressed in civilian clothing and not wearing a uniform, she

was neither surprised nor alarmed that a member of the

public would recognize and approach her. Petitioner felt con-

cern, however, once she realized that respondent was that

person.

Petitioner testified that both she and respondent

seemed surprised to see one another. Respondent said some-

thing to the effect of, “[Y]ou usually wouldn’t see me like

this.” Petitioner understood that as a comment on the fact

that they were “in a personal space doing personal things.”

Petitioner responded, “well, we all got to eat.” Petitioner

observed respondent’s demeanor change: “His facial expres-

sion immediately went from that of surprise” to “completely

flat affect.” Respondent “kind of glared” and the tone was

“very serious.” Respondent replied something to the effect

of, “you’re right, we do all have to eat.” He asked whether

petitioner knew who he was, and she answered that she did.

Respondent pulled out his cellular phone and appeared to

begin filming. He started asking questions, the content of

which petitioner could not recall. At that point, the elevator

arrived, petitioner and her family member entered, and the

door closed behind them.

Safeway’s surveillance footage also captured that

encounter. It showed petitioner and her family member wait-

ing for the elevator. The video showed respondent approach

and stop at a distance of over an arms-length away from

the pair. The video, which recorded no audio, depicted peti-

tioner and respondent talking. Respondent remained still

Cite as 301 Or App 18 (2019) 23

throughout the exchange, except for slight hand movement.

Within 10 seconds of respondent’s arrival, the elevator door

opened. It closed behind petitioner and her family member

20 seconds after that.

Petitioner testified that she found the interaction

at Safeway alarming for several reasons. She noted respon-

dent’s change to a “very serious” face and tone as he pro-

cessed her comment, “we all got to eat,” and that he “kind

of glared” and asked whether she knew who he was, which

she found threatening. Her alarm was based, in part, on her

existing knowledge of respondent and his prior activities,

and it was “heightened” by the presence of her family mem-

ber, who had not “signed up for the level of scrutiny that this

sort of behavior entailed.”

Petitioner offered additional evidence to further

demonstrate the objective reasonableness of her alarm

during the encounters. She called as a witness Officer

Miller from the police department’s criminal intelligence

unit, which investigates threats against police, public offi-

cials, and their families. Officer Miller said that respondent

was a safety concern. Although he was unaware of having

directly interacted with respondent, he had read “police

reports related to [respondent’s] bizarre behavior,” the num-

ber of which had increased significantly in recent years.

Officer Miller testified that respondent “operates outside the

realm of common decency and personal privacy frequently.”

Specifically, he noted that respondent would film police offi-

cers “in the street when they’re at work and on duty,” arriv-

ing to their calls for service and “position[ing] himself in a

way that stops the officers from being able to solely focus on

the problem at hand,” and he would “covertly” film outside

their precinct, hiding behind police vehicles. Officer Miller

explained that respondent “might use profanity.” He also

described the same incidents as petitioner in which respon-

dent visited the home of the district attorney wearing a ski

mask, and he frightened the woman with the stroller. Officer

Miller testified that Cop Watch, a group with which respon-

dent affiliates, has posted the personal information about

police online and “made statements about wanting felons

that [police] deal with, or criminals that [police] deal with

24 D. O. v. Richey

on the street, to be able to find [them].” Officer Miller said

that this information would have been relayed to petitioner.

Officer Miller had downloaded some of respondent’s

videos from the internet, which petitioner introduced into

evidence.3 Those included respondent’s recording of the

street encounter, as well as a video of a separate encoun-

ter that depicted, in part, petitioner’s vehicle, including her

license plate number.4 Respondent had also posted online

another video, titled “Professional Liars,” shortly before his

first encounter with petitioner. It depicted what appeared to

be homeless individuals and encampments, and then, in a

separate scene, three transit officers arresting someone. In

voice over, respondent described his depression stemming

from reporting by the “mainstream media.” He expressed

his intention to “expos[e] those that are responsible for

spreading and parroting police reports, police lies,” warning

specific local journalists and news outlets, “I’m coming for

you.” 5

3

Although no one expressly stated when or how petitioner came to know

about those videos, a factfinder could infer that she became aware of them

through the same channels as the other intelligence, such that the videos could

factor into the objective reasonableness of her alarm.

4

As we explain below, the details of that third encounter are not necessary

to our analysis.

5

Officer Miller interpreted respondent’s monologue as expressing “suicidal

ideation” and as “threaten[ing]” members of the media. The entire narration,

which the trial court heard, was as follows:

“I hope this is the last and final take of this. This is just a small little

message that needs to be made and it’s for the mainstream media here in [the

city].

“Today is December 8, 2017, and it is another morning where I wake up

feeling like I want to climb into a hole, like I don’t want to get out of bed,

like I want to smash something into my skull. I hate feeling this way. I hate

depression.

“I haven’t always felt this way. And this time, the depression’s not stem-

ming from the actions of the [city police bureau]—I’m sure that plays a role

in my feelings today—but today, I feel as if I’ve done a pretty good job of

documenting the lies and the mis—the abuse that I’ve received from [the city

police bureau]. Unfortunately, I have done a terrible job of exposing those

that are responsible for spreading and parroting police reports, police lies.

“And so that is what this video is about. This is what this message is

about. This is my message to the mainstream media—that I’m coming

for you. [Journalist], I’m coming for you. [Another journalist], I’m coming

for you. Your news directors, your editors, [listing three of the city’s local

newspapers]. Every time I see my name in a news report or a piece that has

been parroted—that parrots the police reports, that shows no investigative

Cite as 301 Or App 18 (2019) 25

In addition, Officer Miller’s downloads included a

series of video clips that respondent had posted online from

a public event at which petitioner spoke. Respondent divided

the video into 12 separate segments by topic. Officer Miller

testified that the volume of clips, in light of the “totality of

the circumstances” and “all of the reports,” demonstrated a

“fixation” with petitioner.

Finally, petitioner requested that the trial court

take judicial notice of the criminal case associated with

respondent’s probation conditions restricting his proxim-

ity to the residences of government officials.6 In particular,

she requested that the court take judicial notice of “the fact

that there was already a judgment on a probation violation

allegation from December 14th of 2017.” Petitioner did not

explain that the judgment had found respondent not in vio-

lation of his probation conditions.7 The court took judicial

notice.

At the conclusion of her case, petitioner explained

her reason for requesting an indefinite SPO:

“I think it’s important for this [SPO] to occur because

if there is no actions taken by the Court, these actions on

behalf of [respondent] will continue. There’s no apparent

understanding of what’s reasonable, what personal space

is, what private space is, and there’s no delineation between

private life and personal or public life.”

After petitioner rested, the trial court offered

respondent the opportunity to testify before closing argu-

ments. Respondent seemed unclear about the distinction

between providing testimony and making a closing argu-

ment, and he opted to forgo testifying.

journalism, who’ve written about me, without asking me, without interview-

ing me? I’m coming for you.

“It’s time I share with my audience who you are. This is Son of Hightower.

Feeling a little bit better now. This will be the final cut of that message, this

message to you. Fuck the press. Be the media. 100 percent, U.S.A., FTP. It’s

not even a fucking joke.”

6

In that case, respondent pleaded no contest to second-degree criminal tres-

pass, ORS 164.245. The trial court dismissed the remaining charges for tele-

phonic harassment, ORS 166.090, and obtaining a communication to which he

was not a participant without the consent of a participant, ORS 165.540.

7

Respondent attempted to alert the court to this fact, but failed to do so at a

point in the proceedings when he would be permitted to present evidence.

26 D. O. v. Richey

The trial court entered a final SPO and judgment

based on the following findings:

“[The court is] finding that [respondent] engaged in

intentional and knowing and reckless repeated unwanted

contact with the petitioner or member of the petitioner’s

immediate family or household; that [respondent] should

have known or knew that the repeated contact was

unwanted; that she was alarmed by this unwanted contact;

that it was objectively reasonable in the petitioner’s situ-

ation to have been alarmed of course by the contact, and

this contact caused reasonable apprehension concerning

personal safety and safety of a member of her immediate

family, and was a credible threat to the physical safety of

the person in this—in this order.”8

The SPO required respondent to cease any contact

or attempted contact with petitioner, including, in part:

coming into petitioner’s visual or physical presence; commu-

nicating with petitioner by any means, including electroni-

cally, in writing, or through a third person; communicating

with a third person who has some relationship to petitioner

with the intent of affecting that relationship; waiting out-

side petitioner’s home, property, or place of work; and film-

ing and posting video of petitioner or her personal informa-

tion. The court clarified that these conditions meant, among

other things, “[n]o more filming outside of central precinct.”

The judgment would be in effect indefinitely.

Respondent appeals the SPO and judgment. He

argues that the record contained insufficient evidence for

the trial court to conclude that petitioner’s alarm was objec-

tively reasonable. Respondent contends that the court erro-

neously relied on speech that did not constitute a threat and

therefore was privileged.

PRESERVATION OF ERROR

Before we address those substantive arguments,

petitioner urges us to consider whether they were properly

preserved. We are satisfied that they were. On multiple

occasions, respondent questioned the reasonableness of

8

The trial court provided no further indication as to what specific facts it

found or what particular words or conduct served as qualifying unwanted con-

tacts. Accordingly, we consider all of the evidence in our discussion.

Cite as 301 Or App 18 (2019) 27

petitioner’s fear and, at the end of trial, he challenged the

issuance of the SPO, arguing that “the State hasn’t reached

the burden to prove * * * that these contacts raised the

level of concern that would reach the standard of stalking.”

Respondent also informed the trial court that he had “the

right to film the police while they’re on official duty,” cit-

ing a case holding that the First Amendment to the United

States Constitution protects the filming of government offi-

cials engaged in their duties in public. Glik v. Cunniff, 655

F3d 78 (1st Cir 2011). Respondent asserted that the Oregon

Constitution similarly guaranteed such rights, and that

harassment cannot be purely verbal.9 Those statements suf-

ficed to alert the trial court and petitioner to respondent’s

arguments that (1) the record contained insufficient evi-

dence to meet the statutory standard for objectively reason-

able alarm and (2) his expressive activity was constitution-

ally protected and could not, alone, serve as an element for

issuance of an SPO.

LAW

We turn to the merits of respondent’s appeal. The

SPO in question was issued pursuant to ORS 163.738.10

Under that statute, a trial court may enter an SPO if it finds

by a preponderance of the evidence that:

“(i) The person intentionally, knowingly or recklessly

engages in repeated and unwanted contact with the other

person or a member of that person’s immediate family or

household thereby alarming or coercing the other person;

“(ii) It is objectively reasonable for a person in the vic-

tim’s situation to have been alarmed or coerced by the con-

tact; and

90

We understand that argument to be a reference to Article I, section 8,

of the Oregon Constitution. See State v. Moyle, 299 Or 691, 701, 705 P2d 740

(1985) (concluding harassment law was facially constitutional under Article I,

section 8, in part, because it does not punish communication unless it has the

harmful effect of causing reasonable alarm); State v. Rangel, 328 Or 294, 302-

03, 977 P2d 379 (1999) (discussing Moyle and reaching a similar conclusion with

respect to the criminal stalking statute); Delgado, 334 Or at 142 n 11 (extending

the reasoning in Rangel to the civil stalking law). See also State v. Walker, 350 Or

540, 549, 258 P3d 1228 (2011) (“[A]dducing particular authorities is not a prereq-

uisite to preservation.”).

10

Petitioner sought the SPO under ORS 30.866, which applies the same

standard for determining when an SPO is justified.

28 D. O. v. Richey

“(iii) The repeated and unwanted contact causes the

victim reasonable apprehension regarding the personal

safety of the victim or a member of the victim’s immediate

family or household.”

ORS 163.738(2)(a)(B). The statute requires that there have

been two or more unwanted contacts with petitioner or a

member of her immediate family within a two-year period,

and that each of those contacts gives rise to objectively rea-

sonable alarm. Christensen v. Carter/Bosket, 261 Or App

133, 139, 323 P3d 348 (2014).

Generally, for the purposes of the statute, “alarm”

means “to cause apprehension or fear resulting from the

perception of danger,” ORS 163.730(1), with “danger” refer-

ring to “a threat of physical injury, and not merely a threat

of annoyance or harassment,” King v. W. T. F., 276 Or App

533, 538, 369 P3d 1181 (2016) (citing Brown v. Roach, 249 Or

App 579, 586, 277 P3d 628 (2012) (brackets omitted)).

“A more stringent standard” applies when we eval-

uate the sufficiency of the evidence of alarm for expres-

sive contacts, because they implicate Article I, section 8, of

the Oregon Constitution and the First Amendment to the

United States Constitution. Ragsdale v. Fleming, 265 Or

App 342, 349-50, 336 P3d 534 (2014). The Supreme Court

has explained that, in defining alarm, the legislature nec-

essarily contemplated that speech-based contact could com-

prise an element of stalking only if it “constitutes a threat.”

State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). Thus,

as a matter of statutory construction, “[i]f the contact in

question amounts to communication by speech or writing,

only a threat will be sufficient to ‘cause apprehension or

fear resulting from perception of danger,’ as ORS 163.730

requires.” Id.11

The Supreme Court elaborated on the meaning of

the term, “threat.” The court observed that only communi-

cation that meets “specific factual criteria” can demonstrate

a threat for the purpose of the statute because, “in a number

of settings, vigorous advocacy of conflicting viewpoints may

11

ORS 163.730 has seen several amendments since the Oregon Supreme

Court construed it in Rangel, none of which changed the definition of alarm.

Cite as 301 Or App 18 (2019) 29

create feelings of anger, fear, annoyance or loss of control.”

Id. It must be “communication that instills in the addressee

a fear of imminent and serious personal violence from the

speaker, is unequivocal, and is objectively likely to be fol-

lowed by unlawful acts.” Id. (citing State v. Moyle, 299 Or 691,

703-05, 705 P2d 740 (1985)). It excludes “ ‘the kind of hyper-

bole, rhetorical excesses, and impotent expressions of anger

or frustration that in some contexts can be privileged even

if they alarm the addressee.’ ” Id. (quoting Moyle, 299 Or at

705). That construction of threat, the court concluded, was

“faithful” to the legislative intent behind ORS 163.730(1). Id.

See also Delgado, 334 Or at 142 n 11 (extending the reason-

ing in Rangel to the civil stalking law); Hanzo v. deParrie,

152 Or App 525, 542, 953 P2d 1130 (1998), rev den, 328 Or

418 (1999) (same, but citing State v. Rangel, 146 Or App 571,

934 P2d 1128 (1997), aff’d, 328 Or 294 (1999)).

Our opinion in Hanzo illustrates the line between

protected expression and threats.12 152 Or App 525. The

petitioner in that case was the executive director of a health

center that provided gynecological care and related ser-

vices, including abortions. Id. at 527. The clinic had been

the target of a mail bomb about 10 years before the contacts

at issue. Id. The respondent was the leader of anti-abortion

group and the editor of an anti-abortion magazine. Id. That

magazine had editorialized that “the use of godly force

is morally justified in defense of innocent life.” Id. at 527

(internal quotation marks omitted). In a similar vein, the

respondent had signed declarations and made public state-

ments of support for activists who had been violent towards

and killed abortion providers. Id. At least one co-signatory

to such a declaration murdered a doctor and other people.

Id. at 528. The respondent had been arrested twice for tres-

pass in connection with protests at abortion clinics, but the

12

We issued our decision in Hanzo before the Supreme Court decided Rangel.

In Hanzo, we relied on our analysis from State v. Rangel, 146 Or App 571, 934

P2d 1128 (1997), aff’d, 328 Or 294 (1999), in concluding that, to cause alarm

under ORS 163.730, a speech-based contact must involve a threat, as articulated

in Moyle. 152 Or App at 541-44. Ultimately, the Supreme Court agreed with that

conclusion. Rangel, 328 Or at 303. Likewise, in Hanzo, we concluded that our

construction of the criminal stalking statute in Rangel applied equally to the

issuance of a civil SPO. Hanzo, 152 Or App at 542. The Supreme Court confirmed

that to be true in Delgado, 334 Or at 142 n 11.

30 D. O. v. Richey

record contained no evidence that the respondent had been

convicted or that he had ever committed or incited violence

against abortion providers. Id. The respondent had orga-

nized and participated in anti-abortion protests at petition-

er’s clinic. Id. At some point, respondent helped initiate a

campaign targeting the petitioner directly at her personal

residence, the goal of which was to “bring anti-abortion

efforts ‘home’ to petitioner’s personal life and personal

space.” Id. at 528-29.

Six related incidents would later give rise to the

petitioner’s stalking complaint. First, a copy of the respon-

dent’s magazine was left on the petitioner’s doorstep and dis-

tributed throughout her neighborhood. Id. at 529. Second,

a postcard associated with the respondent’s anti-abortion

group was delivered to the petitioner’s home. Id. at 529-30.

Third, the respondent led nine protestors to picket the pub-

lic streets and sidewalks in front of the petitioner’s home.

Id. at 530. They distributed handbills in the petitioner’s

neighborhood bearing her picture, name, home address,

and work telephone number, captioned, “Your neighbor is

an abortionist.” (Boldface and uppercase omitted.) The

handbills encouraged readers to write or call to “[l]et her

know that you think she should not kill children for a liv-

ing.” Id. Fourth, a flyer was mailed to the medical direc-

tor of the petitioner’s clinic, listing the names, pictures,

and contact information of abortion providers, including

the petitioner. The flyer stated, “These abortionists have

been exposed!” and highlighted its picketing, leafleting, and

“other activities protected by the First Amendment.” Id. at

531 (uppercase omitted). The flyer stated that they intended

to “continue these activities,” and promised, “If you’re an

abortionist we will be visiting your neighborhood soon!” Id.

(uppercase omitted). It also urged readers to “use whatever

influence you have to convince them to practice real medi-

cine in keeping with their Oath.” Id. Fifth, the respondent

called the petitioner at her unlisted home phone number.

Id. at 532. The petitioner told the respondent to never call in

the future, and he complied. Id. Sixth, the respondent and

a group of 10 to 15 protesters picketed in the petitioner’s

neighborhood once more, distributing pamphlets. Id. That

time, the petitioner, with companions, initiated a heated

Cite as 301 Or App 18 (2019) 31

but nonviolent exchange with the protestors, including the

respondent. Id. The protest, as before, was peaceful, and

none of the slogans, picketing signs, or pamphlets called for

violence.

The petitioner sought an SPO against the respon-

dent. Id. at 534. She asserted, in relevant part, that the six

incidents caused her alarm and that her alarm was objec-

tively reasonable in light of the respondent’s consistent dec-

larations of support for those committing violence against

abortion providers, as well as the nationwide escalation

of such violence, particularly on the part of certain anti-

abortion groups. Id. at 535. The trial court issued a perma-

nent SPO, identifying the two demonstrations outside of the

petitioner’s home as the predicate contacts. Id. at 535-36.

It concluded that the petitioner’s alarm was objectively rea-

sonable given “the intensity of the contacts and their poten-

tially violent and confrontational nature.” Id. at 536.

The respondent appealed, asserting that the issu-

ance of a permanent SPO on the basis of those contacts

offended free speech protections of the state and federal

constitutions. Id. We agreed.13 We observed that there was

nothing unambiguously or unequivocally threatening about

the two demonstrations. Id. at 544-46. As to the first pro-

test, we noted its limited duration and size, the absence of

physical interaction, and that none of the written materials

advocated violence. Id. at 544. As to the second protest, we

highlighted its peaceful and lawful character, the presence

of a uniformed police officer, and that the only interper-

sonal interaction was instigated by the petitioner and was

devoid of threats. Id. at 546. Again, the written signs and

pamphlets did not advocate violence. Id. Neither demonstra-

tion could constitute an unwanted contact for the purposes

of obtaining an SPO. Id. Likewise, we determined that the

remaining four incidents could not constitute unwanted

contacts. Id. at 546-47. Nothing in the magazine, postcard,

or flyer advocated violence. Id. We acknowledged that the

phone call to the petitioner’s home was “hardly innocuous,”

in that it conveyed to the petitioner that “even her private

13

We made no distinction between Article I, section 8, and the First

Amendment in our analysis.

32 D. O. v. Richey

phone number was not private, that she had ‘no place to

hide’ from respondent’s anti-abortion efforts.” Id. at 547.

Nevertheless, we concluded that, “[a]lthough such harass-

ment was, no doubt, upsetting, it did not unambiguously

and unequivocally communicate a determination to injure

petitioner[.]” Id.

In reaching those conclusions, we rejected the peti-

tioner’s argument that the demonstrations were alarming

given the broader context of violence against abortion pro-

viders by anti-abortion groups and the respondent’s support

for, and affiliations with, people who committed such vio-

lence. Id. at 544-45. We said that, even if the declarations

that respondent signed could have been reasonably read as

advocating violence against abortion providers, “that advo-

cacy is abstract advocacy.” Id. at 545. We noted that nothing

in the stalking statutes, as construed in case law, “suggests

that such advocacy alone, or even when coupled with man-

ifestly nonviolent protest activity, can constitute an action-

able ‘unwanted contact.’ ” Id. Otherwise, we reasoned, any

contact between the petitioner and the respondent would,

necessarily, become an actionable unwanted contact “by vir-

tue of respondent’s generic and constitutionally protected

statements.” Id. In other words, the respondent’s endorse-

ment of manifestos would “effectively, preclude him from

engaging in any picketing/protest activity * * * against any

abortion provider.” Id. (emphasis in original). We under-

scored that the respondent had not personally committed

or incited violence. Id. Accordingly, because the incidents

involved expression that did not rise to the level of a threat,

they were not objectively alarming such that they could con-

stitute contacts for the purposes of seeking or granting an

SPO.

We reached the opposite conclusion in Layne v.

MacDonald. 267 Or App 628, 633, 340 P3d 773 (2014). In that

case, an ex-husband telephonically promised his ex-wife that

he would “fuck [her] up.” Id. at 629. We considered whether

that promise constituted a threat and concluded that it

did. We determined that the promise was an “unequivocal”

threat because it “used a colloquial term that, in context,

has but one meaning.” Id. at 632. We also noted that, given

Cite as 301 Or App 18 (2019) 33

the context, the threat presented an immediate and serious

danger of harm that was likely to be followed by unlawful

acts. Specifically, we explained that the ex-husband had

assaulted the ex-wife during their marriage, he bragged that

he killed people while serving in the military and warned

that he could do the same to her, he repeatedly showed a

willingness to break the law by allegedly violating his

no-contact order multiple times, he threatened to send his

“skinhead” friends to harm her if she reported those viola-

tions, and he actually had “skinhead” acquaintances. Id. at

633. Under the circumstances, the ex-husband’s promise to

his ex-wife to “fuck [her] up” was a credible threat of immi-

nent serious physical harm that could support an SPO. Id.

INSUFFICIENT EVIDENCE

Considering the case at hand, we conclude that the

record contains insufficient evidence to permit the issuance

of an SPO. Petitioner offered three potential contacts to sup-

port her request. The first two, referenced above as the street

encounter and the Safeway encounter, involve expressive

communication and nonexpressive conduct that fail to meet

the respective standards for causing objectively reasonable

alarm. Because we conclude that those first two encoun-

ters cannot serve as requisite contacts, the record contains

insufficient evidence of repeated unwanted contacts, regard-

less of whether the third encounter could qualify. See ORS

163.738(2)(a)(B) (requiring repeated unwanted contacts for

issuance of an SPO); ORS 163.730(7) (“ ‘Repeated’ means

two or more times.”); Valerio v. Valerio, 224 Or App 265, 271,

197 P3d 1124 (2008) (declining to analyze the sole remain-

ing incident in light of the two-contacts requirement).

With respect to the street encounter, neither

respondent’s expression nor his nonexpressive conduct gave

rise to objectively reasonable alarm. As for expression, his

speech and filming did not communicate a threat of immi-

nent violence. Rangel, 328 Or at 303. The encounter started

with respondent shouting a name, an acronym, “something

like Nazi,” and “wheel of fortune” from across the street.

When petitioner crossed the intersection and could distin-

guish his words clearly, respondent raised issues related to

traffic safety and policing. Meanwhile, respondent filmed

34 D. O. v. Richey

petitioner, who was in uniform and on duty on a public side-

walk outside her precinct.14 Both parties exchanged remarks

wishing one another a good evening and went their sepa-

rate ways. Although petitioner may have found it concerning

that respondent was “screaming” from across the street and

he “wasn’t whispering” or “speaking in a normal conversa-

tion[al] voice” after she crossed, nothing respondent said

threatened violence. See Gunther v. Robinson, 240 Or App

525, 529, 248 P3d 20 (2011) (insofar as incidents “involved

only screaming, without a threat, they do not support issu-

ance of an SPO”). The expression involved in the street

encounter did not unequivocally communicate a determi-

nation to inflict imminent and serious personal violence on

petitioner, nor did it suggest that unlawful acts would likely

follow. Id.

To the extent that the street encounter involved

nonexpressive conduct separable from the expression, that

nonexpressive conduct did not give rise to objectively rea-

sonable alarm.15 Petitioner failed to show how respondent

trailing a city block and then walking in front of her as he

filmed would reasonably “cause apprehension or fear result-

ing from the perception of * * * a threat of physical injury.”

King, 276 Or App at 538 (citations and internal quotation

marks omitted). Notable here is the absence of evidence from

14

It is well established across jurisdictions that photographing and filming

government officials while they are conducting official duties in public is integral

to—and, in and of itself, a form of—expression. Fields v. City of Philadelphia, 862

F3d 353, 355-56 (3d Cir 2017); Turner v. Lieutenant Driver, 848 F3d 678, 688 (5th

Cir 2017); Gericke v. Begin, 753 F3d 1, 7 (1st Cir 2014); Am. Civil Liberties Union

of Ill. v. Alvarez, 679 F3d 583, 595 (7th Cir); cert den, 568 US 1027 (2012); Glik,

655 F3d at 85; Smith v. City of Cumming, 212 F3d 1332, 1333 (11th Cir), cert den,

531 US 978 (2000); Fordyce v. City of Seattle, 55 F3d 436, 439 (9th Cir 1995); State

v. Russo, 141 Haw 181, 192, 407 P3d 137, 148 (2017); Ramos v. Flowers, 429 NJ

Super 13, 33, 56 A3d 869, 882 (App Div 2012); Felkner v. Rhode Island Coll, 203

A3d 433, 451 (RI 2019); Pickett v. Copeland, 236 So 3d 1142, 1146 n 2 (Fla Dist Ct

App 2018). Accordingly, such activity must satisfy the Rangel standard to consti-

tute an unwanted contact supporting an SPO.

15

Even “[i]f the expressive conduct does not qualify as a threat under Rangel,

that communication can still provide relevant context for the nonexpressive con-

tact.” Christensen, 261 Or App at 141-45 (the respondent’s conduct of shaking

his fist, yelling, and then angrily approaching the petitioner with clenched fists

would alarm an objectively reasonable person “when considered in the context

of his use of homophobic slurs and vague expressions of violence”). In the case at

hand, respondent’s expression provides no support for concluding that his nonex-

pressive conduct would give rise to objectively reasonable alarm.

Cite as 301 Or App 18 (2019) 35

which one could reasonably infer that those behaviors would

foreshadow future physical harm. See Braude v. Braude,

250 Or App 122, 130, 279 P3d 290 (2012) (“[C]onduct that

might appear benign when viewed in isolation can take on a

different character when viewed either in combination with

or against the backdrop of one party’s aggressive behavior

toward the other[.]”); compare Miller v. Hoefer, 269 Or App

218, 224-25, 344 P3d 121 (2015) (the petitioner failed to

show her apprehension was objectively reasonable where the

contact consisted of her former boyfriend following her and

she presented no evidence as to what she feared he might

do or what harm he might cause), with Smith v. Di Marco,

207 Or App 558, 564, 142 P3d 539 (2006) (the respondent

following and peering at the petitioner through binoculars

could serve as predicate contacts for an SPO given his his-

tory of threatening language and physical confrontations).

Although petitioner felt uncomfortable having respondent

in front of her with his camera, and although she would

have preferred that he keep “a very significant distance,”

the video showed that respondent maintained several feet

of space and that he never obstructed her passage. In short,

the nonexpressive conduct involved here is not such that

petitioner could have reasonably feared physical injury.

King, 276 Or App at 538 (citing Brown, 249 Or App at

586).

The surrounding circumstances of the street

encounter do not provide further support for the objective

reasonableness of petitioner’s alarm. Sparks v. Deveny, 221

Or App 283, 292, 189 P3d 1268 (2008) (considering whether

the circumstances surrounding the contact give rise to con-

cern). Here, the encounter was brief, lasting only a couple

of minutes, and it took place in the bustling downtown of a

sizeable urban area in broad daylight. See Delgado, 334 Or

at 125-26 (when “no other people were nearby and when [the

respondent] was walking in a large, unobstructed area,”

he “silently and swiftly” walked up behind the petitioner

in very close proximity and then quickly walked away and

made “side glances” in her direction). Petitioner was armed

with a firearm and in a group that outnumbered respon-

dent, and they were in the immediate vicinity of the central

precinct to the police department.

36 D. O. v. Richey

In addition, there is nothing inherently alarming

about a concerned citizen nonviolently questioning a pub-

lic officer, who serves in a leadership position in the com-

munity, about issues of public concern related to that offi-

cer’s official duties. To be sure, public officials are entitled

to the same level of safety and security as private citizens,

but petitioner’s public role is relevant to our inquiry into

whether the encounter was objectively alarming insofar as

it provides some context for the interaction. See Christensen,

261 Or App at 141 (noting that “it is often necessary to view

contacts in context in order to determine whether they give

rise to objectively reasonable alarm,” and concluding that

the trial court did not err in considering neighbors’ rela-

tionship). The encounter involved the sort of peaceful and

lawful exchange that officials in positions like petition-

er’s commonly face and expect in going about their work.

Respondent addressed petitioner by her formal title, and he

inquired into issues related to her official business while she

was in uniform and on duty in a public place near the build-

ing where she worked. The exchange was within the bounds

of what is tolerated, for instance, in everyday journalism,

activism, and civic engagement (regardless of whether

respondent was actually engaged in such activity). In light

of respondent’s otherwise nonviolent words and conduct, it

was not objectively reasonable to anticipate “danger” under

the circumstances. ORS 163.730(1).

Our assessment is similar with respect to the

Safeway encounter; neither respondent’s verbal expression

nor other conduct gave rise to objectively reasonable alarm.16

As for respondent’s verbal expression, he did not commu-

nicate a physical threat that was “imminent,” “unequivo-

cal,” and “objectively likely to be followed by unlawful acts.”

Rangel, 328 Or at 303 (citing Moyle, 299 Or at 703-05). He

addressed petitioner by her formal title and commented on

their unusual meeting, agreed that “we all got to eat,” and

then asked questions, none of which were alleged to involve

threats. Although respondent’s demeanor quickly shifted

from friendly and surprised to serious, and although he

16

In reaching this determination, we have considered the nonexpressive con-

duct with communications as part of context in understanding that conduct. See

301 Or App at 34 n 15.

Cite as 301 Or App 18 (2019) 37

glared, such “impotent expressions of anger or frustration”

are privileged “even if they alarm the addressee.” Id. at 303

(quoting Moyle, 299 Or at 705).

In light of that context, we also conclude that the

nonexpressive aspects of the Safeway encounter were not

enough to cause objectively reasonable alarm. When respon-

dent came into petitioner’s presence, he maintained several

feet of distance between himself and petitioner, and he stood

still, moving his hand only slightly and displaying his cellu-

lar phone. From an outsider’s perspective, the volume of the

exchange and respondent’s behaviors were so unremarkable

that bystanders within the immediate vicinity—including a

female patron a couple of feet away, a woman with a small

child, and a store clerk—failed to notice. Respondent’s non-

expressive conduct did not suggest that he posed a “threat of

physical injury.” King, 276 Or App at 538 (citing Brown, 249

Or App at 586).

The duration and surroundings of the Safeway

encounter also lend no support for the objective reasonable-

ness of petitioner’s alarm. It was over within 30 seconds, and

it occurred at a busy grocery store downtown in the middle

of the day. Although the Safeway encounter differed from

the street encounter in that it occurred when petitioner was

off-duty and on private property, petitioner herself acknowl-

edged that it was not unusual or concerning for a member of

the public to recognize and contact her in such a setting; it

is relatively ordinary for someone in petitioner’s public posi-

tion. Although respondent approached petitioner off-duty, he

was engaging with her public persona, addressing her by

her formal title. The record contains no evidence to suggest

that respondent’s presence was unlawful, and respondent

did not follow petitioner beyond the Safeway store or other-

wise indicate an intent to further intrude into her private

life.17

Petitioner contends that the encounters were objec-

tively alarming in light of respondent’s other activities and

affiliations. Specifically, petitioner cites the “Professional

Liars” video, critiquing the mainstream media, and the 12

17

The third contact, which we do not discuss, occurred immediately after the

second in the parking garage of the same store.

38 D. O. v. Richey

clips from the public speaking event. Petitioner contends

that the videos show that respondent had threatened harm

to himself and others and had a “fixation” with petitioner

in particular. Petitioner highlights respondent’s connection

to Cop Watch, “a group that has displayed policer officers’

personal information on various social networking sites and

made statements inviting criminals to use that informa-

tion to find [them].” (Internal quotation marks and brackets

omitted.) She notes that the police department had labeled

respondent a “safety concern” and that he posted a video

online that, in part, depicted her vehicle’s license plate

number.

Petitioner’s arguments bear a strong resemblance

to those advanced in Hanzo, and we reject them for similar

reasons. 152 Or App at 545-47. First, none of the videos peti-

tioner cites advocate or threaten violence. In “Professional

Liars,” respondent did not threaten to harm members of the

media. His statement, “I’m coming for you,” when analyzed

within the context of his surrounding statements regard-

ing the need to “expose” those who spread “police lies” and

to “[b]e the media,” is reasonably understood as a promise

to hold the media accountable through his own reporting.

Respondent’s statement is similar to that of anti-abortion

activists in Hanzo who, on a flyer, “committed to the reg-

ular exposure of abortionists through peaceful, non-violent

activism,” and promised to visit abortion providers in their

neighborhoods. Id. at 531. Respondent’s video was no more

violent and threatening than that flyer which, we deter-

mined, did not present a qualifying threat for purposes of

the SPO statute.

Neither the clips, the video depicting petitioner’s

vehicle and license plate, nor the postings of Cop Watch

espoused violence. Significantly, none of them contained any

threats. As for the clips, respondent’s access to, and interest

in, that footage of the public-speaking event does not give

rise to objectively reasonable alarm; it was a public event

involving a public official who is a leader in a subject area of

particular importance to respondent. Nor is there anything

foreboding about respondent dividing the footage into sepa-

rate segments by topic. People regularly do such editing for

practical, creative, and satirical purposes. There is nothing

Cite as 301 Or App 18 (2019) 39

objectively alarming, by itself, about such scrutiny of public

officials speaking in public. With respect to the video depict-

ing the car, petitioner’s suggestion that respondent might

incite people to use the portrayal of her license plate num-

ber to find or harm her is purely speculative on this record.

Even the Cop Watch’s postings, which shared the personal

information of police and did encourage contact, are indis-

tinguishable from the anti-abortion materials disseminated

in Hanzo, which publicized the private addresses and tele-

phone numbers of abortion providers and urged contact. As

before, we conclude that such calls to action, in isolation and

absent other evidence suggestive of violence, do not rise to

the level of a threat justifying an SPO.

We emphasize, as in Hanzo, the lack of evidence

that respondent had been violent in the past. The record

contains no evidence to suggest that respondent ever person-

ally committed or incited an act of violence, whether against

petitioner, other law enforcement officials, other public offi-

cials, or anyone else. Officer Miller vaguely referenced police

reports, but he never specified what they entailed. Although

police found respondent’s behavior “bizarre,” and although

they found his presence distracting when he filmed them on

duty, no one alleged that he had committed a crime or caused

harm beyond mere “annoyance.” King, 276 Or App at 538

(citing Brown, 249 Or App at 586); see also, e.g., ORS 162.247

(interfering with a peace officer). As in Hanzo, respondent’s

known criminal record consists of only criminal trespass, a

property offense.18 At the time of the SPO hearing, respon-

dent had not violated his probation conditions. The record of

this case contains no evidence suggesting a repeated will-

ingness to break the law such that it would be reasonable

to expect unlawful acts would likely follow. Respondent’s

lewd comments to women were not purported to involve any

threats. Although the police labeled respondent a public-

safety concern for the purposes of their work, the record

contains no evidence that the label was based on expression

or conduct threatening or causing physical injury to others.

To the extent that respondent’s support for Cop Watch is

18

Unlike in Hanzo, however, we know that respondent was convicted of the

offense.

40 D. O. v. Richey

offered as grounds for inferring that he advocates violence,

“that advocacy is abstract advocacy”; the mere affiliation

with, or endorsement of, individuals or groups who may be

violent is, alone, insufficient to make otherwise nonviolent

expression a basis for an SPO. Hanzo, 152 Or App at 545.

At trial, petitioner’s reason for seeking the SPO was

not respondent’s past or potential violence, but, rather, his

lacking an “apparent understanding of what’s reasonable,

what personal space is, what private space is,” and there

being “no delineation between private life and personal or

public life.” In other words, she sought the SPO because

respondent pushed the boundaries of personal space.

However, as illustrated in Hanzo, the fact that petitioner

was in the private sphere during the contacts is not, alone,

dispositive. Although respondent may have violated social

norms, “merely unsettling, unusual, or unpleasant” contact

is not enough to support an SPO. King, 276 Or App at 541

(quoting Huber v. Landolt, 267 Or App 753, 760-61, 341 P3d

175 (2014)). Properly analyzed, respondent’s actions cannot

constitute unwanted contacts absent a threat of physical

injury. In sum, the activities and affiliations that petitioner

cites cannot serve as predicate contacts for an SPO, and

they provide no basis for concluding that respondent’s non-

expressive conduct meets the statutory standard.

In reaching this decision, we do not ignore the chal-

lenges that petitioner and similar officials face in their work.

We recognize that “vigorous advocacy of conflicting view-

points may create feelings of anger, fear, annoyance or loss

of control.” Rangel, 328 Or at 303. Thus, Rangel provides the

standard to which we adhere: If respondent’s contact with

petitioner “amounts to speech or writing,” it will suffice to

cause “alarm” for the purposes of an SPO when, but only

when, it involves a threat, i.e., “communication that instills

in the addressee a fear of imminent and serious personal

violence.” Id. (citing Moyle, 299 Or at 703-05). That standard

protects petitioner’s safety as well as respondent’s rights.

CONCLUSION

In the end, petitioner failed to meet her burden

required of expressive and nonexpressive contacts under

Cite as 301 Or App 18 (2019) 41

ORS 163.738(2) and ORS 163.730. The record contains insuf-

ficient evidence to have permitted the trial court to issue an

SPO.

Reversed.