The Volokh Conspiracy

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Police Chief Gets Restraining Order Barring "Cop Watcher" from Publicly Videorecording Her

But the Oregon Court of Appeals rightly reverses.


From D.O. v. Richey, decided last December by the Oregon Court of Appeals, in an opinion by Judge DeVore, joined by Judges Lagesen and Powers:

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 judgment, respondent had probation conditions restricting his proximity to the personal residences of government officials and that respondent had been accused of violating some probation conditions in that case. Petitioner was also told that 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 [stalking protective order] against respondent, pursuant to ORS 30.866, after multiple personal encounters, all of which were captured on video. [Details omitted, but quoted in part below. -EV] 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 situation 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; communicating with petitioner by any means, including electronically, 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 outside petitioner's home, property, or place of work; and filming and posting video of petitioner or her personal information. The court clarified that these conditions meant, among other things, "[n]o more filming outside of central precinct." …

Under [the Oregon statute authorizing the SPO], 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 victim's situation to have been alarmed or coerced by the contact; and

"(iii) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household."

… "A more stringent standard" applies when we evaluate the sufficiency of the evidence of alarm for expressive contacts, because they implicate Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. The [Oregon] Supreme Court has explained that, in defining alarm, the legislature necessarily contemplated that speech-based contact could comprise an element of stalking only if it "constitutes a threat." Thus, as a matter of statutory construction, "[i]f the contact in question amounts to communication by speech or writing, only a threat will be sufficient to 'cause apprehension or fear resulting from perception of danger,' as ORS 163.730 requires….

[O]nly communication 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 create feelings of anger, fear, annoyance or loss of control." 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 followed by unlawful acts." It excludes "'the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.'" …

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 support her request. The first two, [which we call] 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 encounters cannot serve as requisite contacts, the record contains insufficient evidence of repeated unwanted contacts, regardless of whether the third encounter could qualify.

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 imminent violence.

The encounter started with respondent shouting a name, an acronym, "something like Nazi," and "wheel of fortune" from across the street. When petitioner crossed the intersection and could distinguish his words clearly, respondent raised issues related to traffic safety and policing. Meanwhile, respondent filmed petitioner, who was in uniform and on duty on a public sidewalk outside her precinct. Both parties exchanged remarks wishing one another a good evening and went their separate ways.

Although petitioner may have found it concerning that respondent was "screaming" from across the street and he "wasn't whispering" or "speaking in a normal conversation[al] voice" after she crossed, nothing respondent said threatened violence. The expression involved in the street encounter did not unequivocally communicate a determination to inflict imminent and serious personal violence on petitioner, nor did it suggest that unlawful acts would likely follow….

The surrounding circumstances of the street encounter do not provide further support for the objective reasonableness of petitioner's alarm. Here, the encounter was brief, lasting only a couple of minutes, and it took place in the bustling downtown of a sizeable urban area in broad daylight. Petitioner was armed with a firearm and in a group that outnumbered respondent, and they were in the immediate vicinity of the central precinct to the police department.

In addition, there is nothing inherently alarming about a concerned citizen nonviolently questioning a public officer, who serves in a leadership position in the community, about issues of public concern related to that officer'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.

The encounter involved the sort of peaceful and lawful exchange that officials in positions like petitioner's commonly face and expect in going about their work. Respondent addressed petitioner by her formal title, and he inquired into issues related to her official business while she was in uniform and on duty in a public place near the building where she worked. The exchange was within the bounds of what is tolerated, for instance, in everyday journalism, activism, and civic engagement (regardless of whether respondent was actually engaged in such activity). In light of respondent's otherwise nonviolent words and conduct, it was not objectively reasonable to anticipate "danger" under the circumstances.

Our assessment is similar with respect to the Safeway encounter; neither respondent's verbal expression nor other conduct gave rise to objectively reasonable alarm…. He addressed petitioner by her formal title and commented on their unusual meeting, agreed that "we all got to eat," and then asked questions, none of which were alleged to involve threats. Although respondent's demeanor quickly shifted from friendly and surprised to serious, and although he glared, such "impotent expressions of anger or frustration" are privileged "even if they alarm the addressee." …

The duration and surroundings of the Safeway encounter also lend no support for the objective reasonableness 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 acknowledged 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 position. 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 otherwise indicate an intent to further intrude into her private life. {The third contact, which we do not discuss, occurred immediately after the second in the parking garage of the same store.}



Petitioner contends that the encounters were objectively alarming in light of respondent's other activities and affiliations. Specifically, petitioner cites the "Professional Liars" video, critiquing the mainstream media, and the twelve 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 information to find [them]." She notes that the police department had labeled respondent a "safety concern" and that he posted a video online that, in part, depicted her vehicle's license plate number….

[But] none of the videos petitioner cites advocate or threaten violence. In "Professional Liars," respondent did not threaten to harm members of the media. His statement, "I'm coming for you," when analyzed within the context of his surrounding statements regarding the need to "expose" those who spread "police lies" and to "[b]e the media," is reasonably understood as a promise to hold the media accountable through his own reporting….

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 separate 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 depicting the car, petitioner's suggestion that respondent might incite people to use the portrayal of her license plate number 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 indistinguishable from the anti-abortion materials disseminated in [a past case], which publicized the private addresses and telephone 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 … the lack of evidence that respondent had been violent in the past. The record contains no evidence to suggest that respondent ever personally committed or incited an act of violence, whether against petitioner, other law enforcement officials, other public officials, 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."

[R]espondent's known criminal record consists of only criminal trespass, a property offense. At the time of the SPO hearing, respondent had not violated his probation conditions. The record of this case contains no evidence suggesting a repeated willingness to break the law such that it would be reasonable to expect unlawful acts would likely follow.

Respondent's lewd comments to women were not purported to involve any threats. Although the police labeled respondent a public-safety concern for the purposes of their work, the record contains no evidence that the label was based on expression or conduct threatening or causing physical injury to others. To the extent that respondent's support for Cop Watch is offered as grounds for inferring that he advocates violence, "that advocacy is abstract advocacy"; the mere affiliation with, or endorsement of, individuals or groups who may be violent is, alone, insufficient to make otherwise nonviolent expression a basis for an SPO.

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, … 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.

Properly analyzed, respondent's actions cannot constitute unwanted contacts absent a threat of physical injury. In sum, the activities and affiliations that petitioner cites cannot serve as predicate contacts for an SPO, and they provide no basis for concluding that respondent's nonexpressive conduct meets the statutory standard….