Case Information
*1 18
Argued and submitted August 1, reversed December 4, 2019 D . O . , Petitioner-Respondent, v.
Eli Franklyn RICHEY, Respondent-Appellant.
Multnomah County Circuit Court
17SK02618; A166855
Reversed.
Adrienne C. Nelson, Judge.
Jesse Merrithew argued the cause for appellant. Eli Franklyn Richey filed the opening brief pro se . On the reply brief were Jesse Merrithew and Levi Merrithew Horst PC.
Denis M. Vannier argued the cause and filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
DeVORE, J.
Reversed.
DeVORE, J.
Respondent appeals a judgment and stalking pro- tective order (SPO), prohibiting contact with petitioner, a police chief. Respondent contests the sufficiency of the evi dence supporting the SPO. He argues that the SPO errone- ously relied on constitutionally protected speech and that *2 petitioner failed to prove that her alarm was objectively rea- sonable. We agree with respondent as to two of the three contacts and need not consider the third contact. As a result, we conclude that the evidence does not suffice to support an SPO. We reverse.
Because this is not an “exceptional case” warrant-
ing
de novo
review, we review the trial court’s factual find ings for “any evidence” and its legal conclusions for errors of
law.
See
ORAP 5.40(8)(c) (
de novo
review only in exceptional
cases);
Miley v. Miley
, 264 Or App 719, 720, 335 P3d 853
(2014). In doing so, we view the evidence, as well as all rea sonable inferences that we draw from it, in the light most
favorable to granting the petition.
Delgado v. Souders
, 334
Or 122, 134,
FACTS
Respondent is a self-described citizen journalist and police watchdog (or “Cop Watcher”). He has been known to film on-duty police officers and to post those videos online. Petitioner, a chief of a police department, became aware of respondent’s activities after joining the police department, when she received a briefing on individuals with arrest records or probation conditions related to unwanted contact with public officials. Petitioner learned that respondent had visited the home of the district attorney wearing a ski mask, as well as visited the home of the previous police chief. Petitioner was informed that, as part of a criminal judg- ment, respondent had probation conditions restricting his proximity to the personal residences of government officials and that respondent had been accused of violating some pro- bation conditions in that case. [2] Petitioner was also told that Respondent’s alternative arguments need not be addressed. not took judicial notice upon petitioner’s request, determined that respondent was in violation of his probation conditions. The judgment on that alleged probation violation, of which the trial court respondent had made a comment to a female police officer “that was inappropriate and sexual in nature,” and that he had filmed and made a “sexually inappropriate comment” to a woman with a stroller, leading the woman to file a police report.
Petitioner sought the SPO against respondent, pur- suant to ORS 30.866, after multiple personal encounters, all of which were captured on video. The first, which we will refer to as the “street encounter,” occurred on December 8, 2017. Petitioner testified that, at that time, she was walking downtown from the City Hall to the police department’s cen- tral precinct, accompanied by two male city staff. She was on duty, displaying her badge, and armed with a firearm. Petitioner noticed respondent when she heard him yelling from across the street. She made out a name, an acronym, “something like Nazi,” and “wheel of fortune,” but otherwise could not distinguish his words. Hoping to avoid respondent, petitioner and her companions waited to cross and continued walking down the block. Respondent trailed on the other side of the street, appearing to film. When petitioner and *3 her companions reached the end of the block, they decided to cross. The companions stepped in front of petitioner “to create a buffer” between her and respondent.
Respondent’s video began around that point in the encounter. It started with petitioner and her companions on the opposite side of the intersection, waiting to cross. Twenty-five seconds passed. Petitioner, in uniform, was talking on her cellular phone. Respondent waited in silence. When the pedestrian traffic signal changed, petitioner and her companions stepped out into the street. As they did, respondent shouted, apparently in reference to the pedes- trian traffic signal shown in the video’s frame, “These aren’t always working. Just to throw it out there.” As petitioner approached, respondent addressed her by her title, speaking loudly:
“[RESPONDENT]: [O]n, uh, April—on June 27th, I was assaulted, and the [police department] told the media that I was part of the assault. Um, also, um, officers booked a man named Timothy Dennis into custody—Multnomah County—under my name. Uh, any comment? “[Addressing petitioner’s companions] Are you her han- dlers? No? One—two—
“I’m just wondering who you—I’m, I’m really interested to say I wanted to make it a better place—and, and, and, and, and, and, and, and, and—I hope you guys see that. “[PETITIONER]: Thank you.
“[RESPONDENT]: Have a good afternoon. “[PETITIONER]: Have a good evening.
“[RESPONDENT]: Good evening—correct! Look at that, dude. I’m telling you. That’s good.” At that point in the video, petitioner entered the building of the police department’s central precinct, her companions kept walking down the sidewalk, and respon- dent went in another direction. Still recording, respondent said into the microphone, “Two minutes. Chief [petitioner]. She’s out of here. It’s a good video, you guys.” He continued, “And so I filmed the police, you guys. Because it’s necessary. And not everybody could do it.” The video concludes soon after.
The video showed that respondent appeared to maintain a six- to eight-foot distance between himself and petitioner throughout the exchange. Respondent walked ahead of petitioner and her companions with the camera pointing back in their direction. The entire video lasted two minutes, of which, 50 seconds was the time that elapsed between petitioner crossing the street and entering the pre- cinct building.
Petitioner testified that she found that encounter alarming for several reasons. She cited respondent’s “screaming” and following her from across the street. Once petitioner crossed the street, she noted respondent “plac[ing] *4 himself in front of [her],” having the “camera in front of [her] face,” and his failure to “create a very significant distance between the two of [them].” Petitioner said that respondent engaging in that conduct “told [her] that he was there with the intent to do something far more than to provide [her] with information, or inform [her] of any police accountability matters.” She said that he “wasn’t whispering, he wasn’t speaking in a normal conversation[al] voice.” Petitioner also highlighted respondent’s height, over a foot taller than her own, and her “inherent knowledge of him.”
The second encounter, which we will refer to as the “Safeway encounter,” occurred on a Sunday afternoon two days later. Petitioner was shopping with a family member at a Safeway grocery store downtown, about a half-mile from the police department’s central precinct. Petitioner testified that they were preparing to leave and waiting for an elevator when someone addressed her by her title. It was a “friendly voice” that “sounded welcoming.” Although petitioner was dressed in civilian clothing and not wearing a uniform, she was neither surprised nor alarmed that a member of the public would recognize and approach her. Petitioner felt con- cern, however, once she realized that respondent was that person.
Petitioner testified that both she and respondent seemed surprised to see one another. Respondent said some- thing to the effect of, “[Y]ou usually wouldn’t see me like this.” Petitioner understood that as a comment on the fact that they were “in a personal space doing personal things.” Petitioner responded, “well, we all got to eat.” Petitioner observed respondent’s demeanor change: “His facial expres- sion immediately went from that of surprise” to “completely flat affect.” Respondent “kind of glared” and the tone was “very serious.” Respondent replied something to the effect of, “you’re right, we do all have to eat.” He asked whether petitioner knew who he was, and she answered that she did. Respondent pulled out his cellular phone and appeared to begin filming. He started asking questions, the content of which petitioner could not recall. At that point, the elevator arrived, petitioner and her family member entered, and the door closed behind them.
Safeway’s surveillance footage also captured that encounter. It showed petitioner and her family member wait- ing for the elevator. The video showed respondent approach and stop at a distance of over an arms-length away from the pair. The video, which recorded no audio, depicted peti- tioner and respondent talking. Respondent remained still throughout the exchange, except for slight hand movement. Within 10 seconds of respondent’s arrival, the elevator door opened. It closed behind petitioner and her family member 20 seconds after that.
Petitioner testified that she found the interaction at Safeway alarming for several reasons. She noted respon- dent’s change to a “very serious” face and tone as he pro- cessed her comment, “we all got to eat,” and that he “kind of glared” and asked whether she knew who he was, which she found threatening. Her alarm was based, in part, on her existing knowledge of respondent and his prior activities, and it was “heightened” by the presence of her family mem- ber, who had not “signed up for the level of scrutiny that this sort of behavior entailed.”
Petitioner offered additional evidence to further demonstrate the objective reasonableness of her alarm during the encounters. She called as a witness Officer Miller from the police department’s criminal intelligence unit, which investigates threats against police, public offi - cials, and their families. Officer Miller said that respondent was a safety concern. Although he was unaware of having directly interacted with respondent, he had read “police reports related to [respondent’s] bizarre behavior,” the num- ber of which had increased significantly in recent years. Officer Miller testified that respondent “operates outside the realm of common decency and personal privacy frequently.” Specifically, he noted that respondent would film police offi cers “in the street when they’re at work and on duty,” arriv- ing to their calls for service and “position[ing] himself in a way that stops the officers from being able to solely focus on the problem at hand,” and he would “covertly” film outside their precinct, hiding behind police vehicles. Officer Miller explained that respondent “might use profanity.” He also described the same incidents as petitioner in which respon- dent visited the home of the district attorney wearing a ski mask, and he frightened the woman with the stroller. Officer Miller testified that Cop Watch, a group with which respon dent affiliates, has posted the personal information about police online and “made statements about wanting felons that [police] deal with, or criminals that [police] deal with on the street, to be able to find [them].” Officer Miller said that this information would have been relayed to petitioner.
Officer Miller had downloaded some of respondent’s videos from the internet, which petitioner introduced into evidence. Those included respondent’s recording of the street encounter, as well as a video of a separate encoun- ter that depicted, in part, petitioner’s vehicle, including her license plate number. Respondent had also posted online another video, titled “Professional Liars,” shortly before his first encounter with petitioner. It depicted what appeared to *6 be homeless individuals and encampments, and then, in a separate scene, three transit officers arresting someone. In voice over, respondent described his depression stemming from reporting by the “mainstream media.” He expressed his intention to “expos[e] those that are responsible for spreading and parroting police reports, police lies,” warning specific local journalists and news outlets, “I’m coming for you.” [5]
about those videos, a factfinder could infer that she became aware of them factor into the objective reasonableness of her alarm. through the same channels as the other intelligence, such that the videos could Although no one expressly stated when or how petitioner came to know [3] to our analysis. [4] As we explain below, the details of that third encounter are not necessary which the trial court heard, was as follows: ideation” and as “threaten[ing]” members of the media. The entire narration, Officer Miller interpreted respondent’s monologue as expressing “suicidal [5] “I hope this is the last and final take of this. This is just a small little
message that needs to be made and it’s for the mainstream media here in [the city]. “Today is December 8, 2017, and it is another morning where I wake up feeling like I want to climb into a hole, like I don’t want to get out of bed, like I want to smash something into my skull. I hate feeling this way. I hate depression. “I haven’t always felt this way. And this time, the depression’s not stem- ming from the actions of the [city police bureau]—I’m sure that plays a role in my feelings today—but today, I feel as if I’ve done a pretty good job of documenting the lies and the mis—the abuse that I’ve received from [the city police bureau]. Unfortunately, I have done a terrible job of exposing those that are responsible for spreading and parroting police reports, police lies. “And so that is what this video is about. This is what this message is about. This is my message to the mainstream media—that I’m coming for you. [Journalist], I’m coming for you. [Another journalist], I’m coming for you. Your news directors, your editors, [listing three of the city’s local newspapers]. Every time I see my name in a news report or a piece that has been parroted—that parrots the police reports, that shows no investigative In addition, Officer Miller’s downloads included a series of video clips that respondent had posted online from a public event at which petitioner spoke. Respondent divided the video into 12 separate segments by topic. Officer Miller testified that the volume of clips, in light of the “totality of the circumstances” and “all of the reports,” demonstrated a “fixation” with petitioner.
Finally, petitioner requested that the trial court take judicial notice of the criminal case associated with respondent’s probation conditions restricting his proxim- ity to the residences of government officials. In particular, she requested that the court take judicial notice of “the fact that there was already a judgment on a probation violation allegation from December 14th of 2017.” Petitioner did not explain that the judgment had found respondent not in vio- lation of his probation conditions. The court took judicial notice.
At the conclusion of her case, petitioner explained her reason for requesting an indefinite SPO:
“I think it’s important for this [SPO] to occur because if there is no actions taken by the Court, these actions on behalf of [respondent] will continue. There’s no apparent understanding of what’s reasonable, what personal space is, what private space is, and there’s no delineation between private life and personal or public life.” *7 After petitioner rested, the trial court offered respondent the opportunity to testify before closing argu- ments. Respondent seemed unclear about the distinction between providing testimony and making a closing argu- ment, and he opted to forgo testifying.
journalism, who’ve written about me, without asking me, without interview- ing me? I’m coming for you. “It’s time I share with my audience who you are. This is Son of Hightower. Feeling a little bit better now. This will be the final cut of that message, this message to you. Fuck the press. Be the media. 100 percent, U.S.A., FTP. It’s not even a fucking joke.” phonic harassment, ORS 166.090, and obtaining a communication to which he
pass, ORS 164.245. The trial court dismissed the remaining charges for tele- was not a participant without the consent of a participant, ORS 165.540. In that case, respondent pleaded no contest to second-degree criminal tres- [6] point in the proceedings when he would be permitted to present evidence. Respondent attempted to alert the court to this fact, but failed to do so at a The trial court entered a final SPO and judgment based on the following findings:
“[The court is] finding that [respondent] engaged in intentional and knowing and reckless repeated unwanted contact with the petitioner or member of the petitioner’s immediate family or household; that [respondent] should have known or knew that the repeated contact was unwanted; that she was alarmed by this unwanted contact; that it was objectively reasonable in the petitioner’s situ- ation to have been alarmed of course by the contact, and this contact caused reasonable apprehension concerning personal safety and safety of a member of her immediate family, and was a credible threat to the physical safety of the person in this—in this order.” The SPO required respondent to cease any contact or attempted contact with petitioner, including, in part: coming into petitioner’s visual or physical presence; commu- nicating with petitioner by any means, including electroni- cally, in writing, or through a third person; communicating with a third person who has some relationship to petitioner with the intent of affecting that relationship; waiting out- side petitioner’s home, property, or place of work; and film ing and posting video of petitioner or her personal informa- tion. The court clarified that these conditions meant, among other things, “[n]o more filming outside of central precinct.” The judgment would be in effect indefinitely.
Respondent appeals the SPO and judgment. He argues that the record contained insufficient evidence for the trial court to conclude that petitioner’s alarm was objec- tively reasonable. Respondent contends that the court erro- neously relied on speech that did not constitute a threat and therefore was privileged.
PRESERVATION OF ERROR Before we address those substantive arguments, petitioner urges us to consider whether they were properly preserved. We are satisfied that they were. On multiple occasions, respondent questioned the reasonableness of found or what particular words or conduct served as qualifying unwanted con- *8 tacts. Accordingly, we consider all of the evidence in our discussion. The trial court provided no further indication as to what specific facts it petitioner’s fear and, at the end of trial, he challenged the issuance of the SPO, arguing that “the State hasn’t reached the burden to prove * * * that these contacts raised the level of concern that would reach the standard of stalking.” Respondent also informed the trial court that he had “the right to film the police while they’re on official duty,” cit - ing a case holding that the First Amendment to the United States Constitution protects the filming of government offi - cials engaged in their duties in public. Glik v. Cunniff , 655 F3d 78 (1st Cir 2011). Respondent asserted that the Oregon Constitution similarly guaranteed such rights, and that harassment cannot be purely verbal. [9] Those statements suf- ficed to alert the trial court and petitioner to respondent’s arguments that (1) the record contained insufficient evi - dence to meet the statutory standard for objectively reason- able alarm and (2) his expressive activity was constitution - ally protected and could not, alone, serve as an element for issuance of an SPO.
LAW
We turn to the merits of respondent’s appeal. The SPO in question was issued pursuant to ORS 163.738. [10] Under that statute, a trial court may enter an SPO if it finds by a preponderance of the evidence that:
“(i) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person; “(ii) It is objectively reasonable for a person in the vic tim’s situation to have been alarmed or coerced by the con- tact; and
of the Oregon Constitution. , 299 Or 691, 701, 705 P2d 740
See State v. Moyle
(1985) (concluding harassment law was facially constitutional under Article I, section 8, in part, because it does not punish communication unless it has the
State v. Rangel
harmful effect of causing reasonable alarm); (discussing
Moyle
,
ORS 163.738(2)(a)(B). The statute requires that there have
been two or more unwanted contacts with petitioner or a
member of her immediate family within a two-year period,
and that each of those contacts gives rise to objectively rea-
sonable alarm.
Christensen v. Carter/Bosket
, 261 Or App
133, 139,
Generally, for the purposes of the statute, “alarm”
means “to cause apprehension or fear resulting from the
perception of danger,” ORS 163.730(1), with “danger” refer -
ring to “a threat of physical injury, and not merely a threat
of annoyance or harassment,”
King v. W. T. F.
, 276 Or App
533, 538,
“A more stringent standard” applies when we eval-
uate the sufficiency of the evidence of alarm for expres -
sive contacts, because they implicate Article I, section 8, of
the Oregon Constitution and the First Amendment to the
United States Constitution.
Ragsdale v. Fleming
, 265 Or
App 342, 349-50, 336 P3d 534 (2014). The Supreme Court
has explained that, in defining alarm, the legislature nec essarily contemplated that speech-based contact could com-
prise an element of stalking only if it “constitutes a threat.”
State v. Rangel
,
The Supreme Court elaborated on the meaning of
the term, “threat.” The court observed that only communi-
cation that meets “specific factual criteria” can demonstrate
a threat for the purpose of the statute because, “in a number
of settings, vigorous advocacy of conflicting viewpoints may
Court construed it in , none of which changed the definition of alarm.
Rangel
ORS 163.730 has seen several amendments since the Oregon Supreme
create feelings of anger, fear, annoyance or loss of control.”
Id.
It must be “communication that instills in the addressee
a fear of imminent and serious personal violence from the
speaker, is unequivocal, and is objectively likely to be fol-
lowed by unlawful acts.”
Id.
(citing
State v. Moyle
,
Our opinion in
Hanzo
illustrates the line between
protected expression and threats. 152 Or App 525. The
petitioner in that case was the executive director of a health
center that provided gynecological care and related ser-
vices, including abortions.
Id.
at 527. The clinic had been
the target of a mail bomb about 10 years before the contacts
at issue.
Id.
The respondent was the leader of anti-abortion
group and the editor of an anti-abortion magazine.
Id.
That
magazine had editorialized that “the use of godly force
is morally justified in defense of innocent life.”
Id.
at 527 (internal quotation marks omitted). In a similar vein, the
respondent had signed declarations and made public state-
ments of support for activists who had been violent towards
and killed abortion providers.
Id.
At least one co-signatory
to such a declaration murdered a doctor and other people.
Id.
at 528. The respondent had been arrested twice for tres-
pass in connection with protests at abortion clinics, but the
In
aff’d
P2d 1128 (1997), ,
Six related incidents would later give rise to the petitioner’s stalking complaint. First, a copy of the respon- dent’s magazine was left on the petitioner’s doorstep and dis- tributed throughout her neighborhood. Id. at 529. Second, a postcard associated with the respondent’s anti-abortion group was delivered to the petitioner’s home. Id. at 529-30. Third, the respondent led nine protestors to picket the pub- lic streets and sidewalks in front of the petitioner’s home. Id. at 530. They distributed handbills in the petitioner’s neighborhood bearing her picture, name, home address, and work telephone number, captioned, “Your neighbor is an abortionist.” (Boldface and uppercase omitted.) The handbills encouraged readers to write or call to “[l]et her know that you think she should not kill children for a liv- ing.” Id . Fourth, a flyer was mailed to the medical direc tor of the petitioner’s clinic, listing the names, pictures, and contact information of abortion providers, including the petitioner. The flyer stated, “These abortionists have been exposed!” and highlighted its picketing, leafleting, and “other activities protected by the First Amendment.” Id. at 531 (uppercase omitted). The flyer stated that they intended *11 to “continue these activities,” and promised, “If you’re an abortionist we will be visiting your neighborhood soon!” Id. (uppercase omitted). It also urged readers to “use whatever influence you have to convince them to practice real medi - cine in keeping with their Oath.” Id . Fifth, the respondent called the petitioner at her unlisted home phone number. Id. at 532. The petitioner told the respondent to never call in the future, and he complied. Id. Sixth, the respondent and a group of 10 to 15 protesters picketed in the petitioner’s neighborhood once more, distributing pamphlets. Id. That time, the petitioner, with companions, initiated a heated but nonviolent exchange with the protestors, including the respondent. Id. The protest, as before, was peaceful, and none of the slogans, picketing signs, or pamphlets called for violence.
The petitioner sought an SPO against the respon- dent. Id. at 534. She asserted, in relevant part, that the six incidents caused her alarm and that her alarm was objec- tively reasonable in light of the respondent’s consistent dec- larations of support for those committing violence against abortion providers, as well as the nationwide escalation of such violence, particularly on the part of certain anti- abortion groups. Id. at 535. The trial court issued a perma- nent SPO, identifying the two demonstrations outside of the petitioner’s home as the predicate contacts. Id. at 535-36. It concluded that the petitioner’s alarm was objectively rea- sonable given “the intensity of the contacts and their poten- tially violent and confrontational nature.” Id. at 536.
The respondent appealed, asserting that the issu- ance of a permanent SPO on the basis of those contacts offended free speech protections of the state and federal constitutions. Id. We agreed. We observed that there was nothing unambiguously or unequivocally threatening about the two demonstrations. Id. at 544-46. As to the first pro test, we noted its limited duration and size, the absence of physical interaction, and that none of the written materials advocated violence. Id. at 544. As to the second protest, we highlighted its peaceful and lawful character, the presence of a uniformed police officer, and that the only interper sonal interaction was instigated by the petitioner and was devoid of threats. Id. at 546. Again, the written signs and pamphlets did not advocate violence. Id . Neither demonstra- tion could constitute an unwanted contact for the purposes of obtaining an SPO. Id . Likewise, we determined that the remaining four incidents could not constitute unwanted contacts. Id. at 546-47. Nothing in the magazine, postcard, or flyer advocated violence. Id. We acknowledged that the phone call to the petitioner’s home was “hardly innocuous,” in that it conveyed to the petitioner that “even her private Amendment in our analysis. We made no distinction between Article I, section 8, and the First phone number was not private, that she had ‘no place to hide’ from respondent’s anti-abortion efforts.” Id. at 547. Nevertheless, we concluded that, “[a]lthough such harass- ment was, no doubt, upsetting, it did not unambiguously and unequivocally communicate a determination to injure petitioner[.]” Id.
In reaching those conclusions, we rejected the peti- tioner’s argument that the demonstrations were alarming given the broader context of violence against abortion pro- viders by anti-abortion groups and the respondent’s support for, and affiliations with, people who committed such vio lence. Id. at 544-45. We said that, even if the declarations that respondent signed could have been reasonably read as advocating violence against abortion providers, “that advo- cacy is abstract advocacy.” Id. at 545. We noted that nothing in the stalking statutes, as construed in case law, “suggests that such advocacy alone, or even when coupled with man- ifestly nonviolent protest activity, can constitute an action- able ‘unwanted contact.’ ” Id. Otherwise, we reasoned, any contact between the petitioner and the respondent would, necessarily, become an actionable unwanted contact “by vir- tue of respondent’s generic and constitutionally protected statements.” Id. In other words, the respondent’s endorse- ment of manifestos would “effectively, preclude him from engaging in any picketing/protest activity * * * against any abortion provider.” Id . (emphasis in original). We under scored that the respondent had not personally committed or incited violence. Id. Accordingly, because the incidents involved expression that did not rise to the level of a threat, they were not objectively alarming such that they could con- stitute contacts for the purposes of seeking or granting an SPO.
We reached the opposite conclusion in
Layne v.
MacDonald
.
INSUFFICIENT EVIDENCE
Considering the case at hand, we conclude that the
record contains insufficient evidence to permit the issuance
of an SPO. Petitioner offered three potential contacts to sup-
port her request. The first two, referenced above as the street
encounter and the Safeway encounter, involve expressive
communication and nonexpressive conduct that fail to meet
the respective standards for causing objectively reasonable
alarm. Because we conclude that those first two encoun -
ters cannot serve as requisite contacts, the record contains
insufficient evidence of repeated unwanted contacts, regard -
less of whether the third encounter could qualify.
See
ORS
163.738(2)(a)(B) (requiring repeated unwanted contacts for
issuance of an SPO); ORS 163.730(7) (“ ‘Repeated’ means
two or more times.”);
Valerio v. Valerio
,
With respect to the street encounter, neither
respondent’s expression nor his nonexpressive conduct gave
rise to objectively reasonable alarm. As for expression, his
speech and filming did not communicate a threat of immi nent violence.
Rangel
,
To the extent that the street encounter involved
nonexpressive conduct separable from the expression, that
nonexpressive conduct did not give rise to objectively rea-
sonable alarm. Petitioner failed to show how respondent
trailing a city block and then walking in front of her as he
*14
filmed would reasonably “cause apprehension or fear result ing from the perception of * * * a threat of physical injury.”
King
, 276 Or App at 538 (citations and internal quotation
marks omitted). Notable here is the absence of evidence from
,
The surrounding circumstances of the street
encounter do not provide further support for the objective
reasonableness of petitioner’s alarm.
Sparks v. Deveny
, 221
Or App 283, 292,
In addition, there is nothing inherently alarming
about a concerned citizen nonviolently questioning a pub-
lic officer, who serves in a leadership position in the com -
munity, about issues of public concern related to that offi cer’s official duties. To be sure, public officials are entitled
to the same level of safety and security as private citizens,
but petitioner’s public role is relevant to our inquiry into
whether the encounter was objectively alarming insofar as
it provides some context for the interaction.
See Christensen
,
Our assessment is similar with respect to the
Safeway encounter; neither respondent’s verbal expression
nor other conduct gave rise to objectively reasonable alarm. As for respondent’s verbal expression, he did not commu-
nicate a physical threat that was “imminent,” “unequivo-
cal,” and “objectively likely to be followed by unlawful acts.”
Rangel
,
In light of that context, we also conclude that the
nonexpressive aspects of the Safeway encounter were not
enough to cause objectively reasonable alarm. When respon-
dent came into petitioner’s presence, he maintained several
feet of distance between himself and petitioner, and he stood
still, moving his hand only slightly and displaying his cellu-
lar phone. From an outsider’s perspective, the volume of the
exchange and respondent’s behaviors were so unremarkable
that bystanders within the immediate vicinity—including a
female patron a couple of feet away, a woman with a small
child, and a store clerk—failed to notice. Respondent’s non-
expressive conduct did not suggest that he posed a “threat of
physical injury.”
King
,
The duration and surroundings of the Safeway encounter also lend no support for the objective reasonable- ness of petitioner’s alarm. It was over within 30 seconds, and it occurred at a busy grocery store downtown in the middle of the day. Although the Safeway encounter differed from the street encounter in that it occurred when petitioner was off-duty and on private property, petitioner herself acknowl- edged that it was not unusual or concerning for a member of the public to recognize and contact her in such a setting; it is relatively ordinary for someone in petitioner’s public posi- tion. Although respondent approached petitioner off-duty, he was engaging with her public persona, addressing her by her formal title. The record contains no evidence to suggest that respondent’s presence was unlawful, and respondent did not follow petitioner beyond the Safeway store or other- wise indicate an intent to further intrude into her private life.
Petitioner contends that the encounters were objec- tively alarming in light of respondent’s other activities and affiliations. Specifically, petitioner cites the “Professional Liars” video, critiquing the mainstream media, and the 12 second in the parking garage of the same store. The third contact, which we do not discuss, occurred immediately after the clips from the public speaking event. Petitioner contends that the videos show that respondent had threatened harm to himself and others and had a “fixation” with petitioner in particular. Petitioner highlights respondent’s connection to Cop Watch, “a group that has displayed policer officers’ personal information on various social networking sites and made statements inviting criminals to use that informa- tion to find [them].” (Internal quotation marks and brackets omitted.) She notes that the police department had labeled respondent a “safety concern” and that he posted a video *17 online that, in part, depicted her vehicle’s license plate number.
Petitioner’s arguments bear a strong resemblance
to those advanced in
Hanzo
, and we reject them for similar
reasons.
Neither the clips, the video depicting petitioner’s vehicle and license plate, nor the postings of Cop Watch espoused violence. Significantly, none of them contained any threats. As for the clips, respondent’s access to, and interest in, that footage of the public-speaking event does not give rise to objectively reasonable alarm; it was a public event involving a public official who is a leader in a subject area of particular importance to respondent. Nor is there anything foreboding about respondent dividing the footage into sepa- rate segments by topic. People regularly do such editing for practical, creative, and satirical purposes. There is nothing objectively alarming, by itself, about such scrutiny of public officials speaking in public. With respect to the video depict ing the car, petitioner’s suggestion that respondent might incite people to use the portrayal of her license plate num- ber to find or harm her is purely speculative on this record. Even the Cop Watch’s postings, which shared the personal information of police and did encourage contact, are indis- tinguishable from the anti-abortion materials disseminated in Hanzo , which publicized the private addresses and tele- phone numbers of abortion providers and urged contact. As before, we conclude that such calls to action, in isolation and absent other evidence suggestive of violence, do not rise to the level of a threat justifying an SPO.
We emphasize, as in
Hanzo
, the lack of evidence
that respondent had been violent in the past. The record
contains no evidence to suggest that respondent ever person-
ally committed or incited an act of violence, whether against
petitioner, other law enforcement officials, other public offi cials, or anyone else. Officer Miller vaguely referenced police
reports, but he never specified what they entailed. Although
police found respondent’s behavior “bizarre,” and although
they found his presence distracting when he filmed them on
duty, no one alleged that he had committed a crime or caused
harm beyond mere “annoyance.”
King
, 276 Or App at 538
*18
(citing
Brown
,
At trial, petitioner’s reason for seeking the SPO was
not respondent’s past or potential violence, but, rather, his
lacking an “apparent understanding of what’s reasonable,
what personal space is, what private space is,” and there
being “no delineation between private life and personal or
public life.” In other words, she sought the SPO because
respondent pushed the boundaries of personal space.
However, as illustrated in
Hanzo
, the fact that petitioner
was in the private sphere during the contacts is not, alone,
dispositive. Although respondent may have violated social
norms, “merely unsettling, unusual, or unpleasant” contact
is not enough to support an SPO.
King
,
In reaching this decision, we do not ignore the chal-
lenges that petitioner and similar officials face in their work.
We recognize that “vigorous advocacy of conflicting view points may create feelings of anger, fear, annoyance or loss
of control.”
Rangel
,
CONCLUSION
In the end, petitioner failed to meet her burden *19 required of expressive and nonexpressive contacts under ORS 163.738(2) and ORS 163.730. The record contains insuf ficient evidence to have permitted the trial court to issue an SPO.
Reversed.