248 P.3d 20
Or. Ct. App.2011Background
- Neighbors for ~15 years; driveways/backyards linked; fence with small gate; multiple prior incidents alleged over >2 years including vandalism, BB gun, rocks, and accusations to police; SPO petition filed after a late-incident where respondent screamed and threw rocks at petitioner's daughter’s window; petitioner believed respondent possessed firearms; trial court granted SPO based on fear and coercion; appellate court reverses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two-year period shows repeated, unwanted contact | Gunther argues two-year contacts existed | Robinson argues insufficient timely contacts | Not established; only one timely contact remains. |
| Whether the garbage-sweep incident supports an SPO | Gunther claims it caused alarm/coercion | Robinson argues no threat, only annoyance | Not support; speech alone not a threat, and conduct did not alarm. |
| Whether the rock-throwing incident supports an SPO | Gunther asserts it created fear for family | Robinson contends it was isolated and not sufficiently alarming | Only timely contact and it supports an SPO, but there were not two such contacts. |
| Whether speech constitutes a threat under ORS 30.866/163.730 | Threats implied by utterances could satisfy the standard | Words alone insufficient without a threat | Speech without a threat cannot support an SPO; overall not enough. |
Key Cases Cited
- Swarringim v. Olson, 234 Or.App. 309, 227 P.3d 818 (2010) (threat requirement for speech under Oregon Constitution)
- State v. Rangel, 328 Or. 294, 977 P.2d 379 (1999) (definition of threat for speech crimes; imminent danger)
- State v. Moyle, 299 Or. 691, 705 P.2d 740 (1985) (threats must be unequivocal and imminently followed by unlawful acts)