D.M.G. Tepper

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Civil Stalking Protective Order
  • Date Filed: 05-17-2017
  • Case #: A161624
  • Judge(s)/Court Below: Flynn, J., pro tempore, for the Court; Sercombe, S.J.; & DeHoog, J.
  • Full Text Opinion

Under Article I, section 8, of the Oregon Constitution, an SPO may not be based on expressive contacts—those that involve speech—unless the speech is a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999).

Respondent appealed the trial court’s entry of a stalking protective order (SPO) pursuant to ORS 30.866(1). Respondent argued that the trial court erred in finding that Respondent engaged in “repeated and unwanted contact.” Respondent ultimately argued that the two alleged incidents did not qualify as “contact” as a basis for issuing an SPO under ORS 30.866(1). Specifically, that neither “the act of smearing fish on petitioner’s car” nor Petitioner overhearing Respondent state, in front of a group of people, “Wouldn’t it be funny if I maced her?” The Rangel test requires an “unequivocal” threat that instills “a fear of imminent and serious personal violence” and that is “objectively likely to be followed by unlawful acts.” Id. Under Article I, section 8, of the Oregon Constitution, an SPO may not be based on expressive contacts—those that involve speech—unless the speech is a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). There was indication in the record that anyone was endangered by the act of “smearing fish on Petitioner’s car” because in the broader context of the parties’ feud, the incident would not cause an objectively reasonable fear of physical injury in the future. The statement that Petitioner overheard was interpreted by the Petitioner as being directed at her, but that statement also failed to qualify causing objectively reasonable fear of imminent physical injury. Reversed.

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