456 P.3d 348
Or. Ct. App.2019Background
- Respondent (Richey) is a self‑described citizen journalist who films on‑duty police and posts videos; petitioner is a municipal police chief who sought a stalking protective order (SPO).
- Petitioner relied on three video‑recorded encounters over two days (a downtown "street" encounter, a brief approach at a Safeway elevator, and a subsequent parking‑garage incident) plus respondent’s online videos and affiliation with Cop Watch.
- Petitioner testified she was alarmed by respondent yelling, trailing/filming her at close range, a change to a serious/glare at Safeway, and respondent’s online statements (including a video saying “I’m coming for you”).
- Police intelligence characterized respondent as a safety concern and introduced other videos and reports; the trial court took judicial notice of a related criminal case and issued an indefinite SPO under ORS 163.738/ORS 30.866.
- Richey appealed, arguing the evidence was insufficient because much of the conduct was constitutionally protected expression (filming/questioning officials) and that petitioner’s alarm was not objectively reasonable under the governing statutory/constitutional standards.
Issues
| Issue | Plaintiff's Argument (D.O.) | Defendant's Argument (Richey) | Held |
|---|---|---|---|
| Whether the evidence supports issuance of an SPO (repeated unwanted contacts causing objective alarm) | Three encounters + online conduct show repeated unwanted contacts and justified objectively reasonable alarm | Contacts were protected expression (filming/questioning); alarm was not objectively reasonable; insufficient threat evidence | Reversed: insufficient evidence because the first two encounters did not meet the statutory/constitutional standards, so the "repeated" requirement fails |
| Whether speech/filming can constitute "alarm" for an SPO | Context (videos, past conduct, Cop Watch) made speech alarming and relevant to objective reasonableness | Speech is protected; under Rangel only threats qualify as speech‑based contacts that cause legally cognizable alarm | Speech/filming here did not communicate an unequivocal, imminent threat; therefore could not serve as the requisite contacts |
| Whether non‑expressive conduct (trailing, filming at close range) produced objective fear of physical harm | Physical positioning and following while filming created reasonable apprehension of danger | Non‑expressive conduct was brief, at distance, in public, with no history of violence — insufficient to cause reasonable fear of physical injury | Non‑expressive conduct was not such that a reasonable person would fear imminent physical injury; insufficient as predicate contact |
| Preservation / standard of review | — | Richey preserved First Amendment and sufficiency objections; appellate review is any‑evidence for facts and error of law for legal conclusions | Arguments preserved; court applied "any evidence" review and reversed as a matter of law for insufficiency |
Key Cases Cited
- State v. Rangel, 328 Or 294 (1999) (speech can qualify as causing "alarm" only when it is a threat: imminent, unequivocal, and likely to be followed by unlawful acts)
- State v. Moyle, 299 Or 691 (1985) (defines "threat" and excludes hyperbole/rhetorical excess from punishable communications)
- Delgado v. Souders, 334 Or 122 (2002) (applies Rangel reasoning to civil stalking context)
- Hanzo v. deParrie, 152 Or App 525 (1998) (protected advocacy and nonviolent protest insufficient to constitute threat‑based contacts for an SPO)
- Layne v. MacDonald, 267 Or App 628 (2014) (contrast: unequivocal, contextually credible threat can support an SPO)
- Christensen v. Carter/Bosket, 261 Or App 133 (2014) (two or more contacts within two years required; each must give rise to objectively reasonable alarm)
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (filming public officials performing duties is protected First Amendment activity)