State v. Sorrell
319 Or. App. 518
| Or. Ct. App. | 2022Background
- Defendant was indicted on three counts of second-degree intimidation (ORS 166.155(1)(c)(A), 2017) after a 2017 incident in which he drove alongside victims, yelled racial/religious epithets (e.g., “take the fucking burqa off,” “go back to your own fucking country,” “terrorist”), mimicked shooting with both hands, swerved toward them, and the victims called 9-1-1.
- Indictment alleged the threats were made intentionally and because of the victims’ perceived race, color, religion, and national origin.
- Defendant demurred to the indictment, arguing the statute is facially overbroad under Article I, §8 of the Oregon Constitution because it lacks imminency, objectivity, and unequivocality limits and thus reaches protected expression.
- Trial court denied the demurrer; defendant pleaded no contest to two counts, reserving the right to appeal the demurrer denial.
- The Court of Appeals affirmed, relying on State v. Smith and related precedent, construing the statute so that “alarm” and the required intentional mental state limit the statute to imminent, unequivocal threats likely to be taken as intended.
Issues
| Issue | State's Argument | Sorrell's Argument | Held |
|---|---|---|---|
| Whether ORS 166.155(1)(c)(A) (2017) is facially overbroad under Article I, §8 | Statute targets unprotected threatening conduct that causes alarm; properly construed it applies to imminent, unequivocal threats | Statute is overbroad because it lacks imminency, objectivity, and unequivocality requirements and cannot be narrowed | Affirmed — statute, as construed in Smith, is not facially overbroad; intent and “alarm” limit reach to imminent, unequivocal threats |
Key Cases Cited
- State v. Smith, 319 Or App 388 (Or. Ct. App. 2022) (construed ORS 166.155(1)(c)(A) as not facially overbroad and limited it to imminent, unequivocal threats)
- State v. Moyle, 299 Or 691 (Or. 1985) (interpreted “alarm”/threats to involve sudden fear of imminent personal violence)
- State v. Rangel, 328 Or 294 (Or. 1999) (discussed objective fear element in threat statutes)
- State v. Johnson, 345 Or 190 (Or. 2008) (addressed Article I, §8 limits on statutes regulating threatening speech)
- State v. Robertson, 293 Or 402 (Or. 1982) (framework for analyzing free-speech challenges by category)