374 P.3d 941
Or. Ct. App.2016Background
- Petitioner (a lingerie model working via an escort-style listing) sought a stalking protective order (SPO) after respondent, a former customer, made repeated contacts and left texts/voicemails she found disturbing.
- Petitioner saw respondent looking into her workplace on November 8, 2013, thereafter quit that job, and began using a work cell phone that displayed respondent’s calls.
- After November 8, respondent left multiple text and voicemail messages (including November 18–20 and a more threatening voicemail and texts on November 24) and posted a note on the door of petitioner’s former workplace listing her name and a (wrong) “new address.”
- Petitioner did not respond to respondent’s messages and reported being alarmed and fearing for safety; police advised seeking an SPO. The trial court found respondent should have known contacts were unwanted and issued the SPO.
- On appeal, respondent argued (1) many contacts were constitutionally protected speech that do not meet the heightened Rangel standard for speech-based contacts, and (2) the nonexpressive contacts were insufficiently repeated or qualifying to support an SPO.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether the post-November 8 texts/voicemails qualify as predicate contacts for an SPO | Messages alarmed petitioner and caused reasonable apprehension about safety, so they support an SPO | Messages are speech-based and do not meet Rangel’s heightened threat standard for unprotected speech | Held for respondent: the speech-based messages did not meet Rangel and cannot be predicate contacts |
| Whether earlier contacts (on or before Nov 8) count as qualifying repeated contacts | Earlier conduct and comments show pattern and provide context for later alarm | No evidence respondent knew contacts were unwanted before Nov 8; petitioner never told him to stop | Held for respondent: contacts up to Nov 8 cannot be counted because petitioner did not manifest lack of consent until Nov 8 |
| Whether nonexpressive acts (posting a note at her former workplace; going to the house he believed was hers) constitute qualifying contacts | Posting the note and visiting the house are nonexpressive contacts that caused alarm and support an SPO | The note’s content is speech; visiting the wrong house was at most one act and not repeated; insufficient to meet ‘‘repeated’’ requirement | Held: posting note provided context but its expressive component failed Rangel; visiting the house was a single incident and cannot satisfy the repeated-contact requirement |
| Whether the trial court correctly issued the SPO based on the totality of contacts | Totality (speech + conduct) reasonably supported SPO | Trial court relied on speech that is protected and on too few nonexpressive contacts | Held: reversed — record lacks sufficient qualifying contacts to support SPO |
Key Cases Cited
- State v. Rangel, 977 P.2d 379 (Or. 1999) (speech-based contacts can support an SPO only if they are unequivocal threats of imminent, serious violence and are objectively likely to be followed by unlawful acts)
- Delgado v. Souders, 46 P.3d 729 (Or. 2002) (SPO elements and requirement that petitioner prove repeated unwanted contact and respondent’s mental state)
- State v. Moyle, 705 P.2d 740 (Or. 1985) (limits rhetorical hyperbole from being treated as unprotected threats)
- Amarillas v. White, 292 P.3d 587 (Or. App. 2012) (texts/emails conveying generalized threats do not satisfy Rangel)
- Habrat v. Milligan, 145 P.3d 180 (Or. App. 2006) (expressive contacts can provide context for evaluating nonexpressive contacts)