396 P.3d 990
Or. Ct. App.2017Background
- Petitioner (through guardian ad litem) sought a stalking protective order (SPO) under ORS 30.866(1) after a deterioration of a former high‑school friendship.
- Trial court issued a permanent SPO based on two incidents: (1) at a football game respondent stood in front of petitioner and said to friends, “Wouldn’t it be funny if I maced her?” and (2) over winter break respondent directed another student to put sardines on petitioner’s car.
- Respondent does not dispute that those events qualify as statutory “contacts,” but contests that either event satisfies the elements of ORS 30.866(1).
- Court of Appeals reviewed the trial court’s legal conclusions for errors of law and accepted the trial court’s factual findings if any evidence supported them, viewing evidence in the light most favorable to petitioner.
- Court applied statutory requirements that qualifying contacts be “repeated,” each contact independently give rise to subjective and objectively reasonable alarm or coercion, and cumulative contacts cause reasonable apprehension for personal safety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the football‑game remark and positioning constitute a qualifying contact given free‑speech protections | The remark and physical positioning alarmed and coerced petitioner and thus qualify under ORS 30.866(1) | The remark is expressive speech; under Rangel it is not an unequivocal, imminent threat of serious violence and thus cannot support an SPO | Not a qualifying contact: the statement was equivocal and not an unequivocal, imminent threat; the non‑expressive conduct did not make alarm objectively reasonable |
| Whether directing sardines to be smeared on petitioner’s car is a qualifying contact that produces objectively reasonable alarm | The incident alarmed petitioner and, in context of feud, made future physical harm reasonably apprehensible | The act was annoying/hostile but did not create an objectively reasonable fear of physical injury | Not a qualifying contact: although petitioner was subjectively alarmed, it was not objectively reasonable to fear physical injury from smearing fish on a car |
Key Cases Cited
- Bachmann v. Maudlin, 283 Or. App. 548 (requirement that ‘repeated’ means two or more qualifying contacts)
- Reitz v. Erazo, 248 Or. App. 700 (each contact must independently give rise to subjective and objectively reasonable alarm)
- State v. Rangel, 328 Or. 294 (expressive speech qualifies only if an unequivocal, imminent, and objectively likely threat of serious personal violence)
- Langford v. Langford, 262 Or. App. 409 (statements like “I wish you were dead” do not meet Rangel threat standard)
- Brown v. Roach, 249 Or. App. 579 (acts that are annoying or humiliating do not necessarily create objectively reasonable fear of physical injury)