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State v. Navickas

Court of Appeals of Oregon

June 3, 2015

STATE OF OREGON, Plaintiff-Respondent,
ERIC CARL NAVICKAS, Defendant-Appellant

Argued and Submitted, Grants Pass High School, Grants Pass March 31, 2015.

113239MI. Jackson County Circuit Court. Timothy C. Gerking, Judge.

Ernest G. Lannet, Chief Deputy Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services.

Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jona J. Maukonen, Assistant Attorney General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.


[271 Or.App. 448] ORTEGA, P. J.

Defendant appeals a judgment convicting him of a single count of interfering with a peace officer, ORS 162.247. Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) based on the state's failure to prove that he disobeyed a " lawful" order. He contends that the police officer's order was unlawful because the officer acknowledged that he would not have issued the order if defendant's group had obtained a permit under a city permit scheme, which the trial court later held was unconstitutional. Because we conclude that the police officer's order nevertheless was lawful on its face, we affirm.

We review the facts in the light most favorable to the state, which prevailed below, and state them consistently with that standard. See State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998).

Defendant was the leader of a group of 30 to 40 individuals who were participating in an environmental protest in downtown Ashland. Using a bullhorn, defendant told the group to move the protest into the streets. The group followed defendant into Main Street, the central three-lane thoroughfare in Ashland.

Page 802

The majority of the protesters stayed in the right-hand lane, but several of them, along with the large banner they were carrying, spilled over into the middle lane. At the time of the protest, it was raining heavily, visibility on the road was poor, and road conditions were slick. The street also was busy with evening traffic.

Officer Perrone arrived at the scene and asked defendant to move his group off the street. Defendant responded by " screaming and shouting" profanities. Perrone walked with defendant for the next block, asking him to direct his group out of the street and back onto the sidewalk, but defendant refused to comply. Perrone went to his patrol car and followed behind the protest with his lights on in order to protect the protesters from traffic. When traffic began to pile up, Perrone again approached defendant and ordered him out of the street. Defendant again responded with " more profanity, yelling and screaming." Perrone told defendant that he was going to arrest him for disorderly conduct, but, after defendant began to resist, Perrone chose not [271 Or.App. 449] to arrest defendant because he believed it would make " an already very unsafe situation worse." Defendant returned to the march, and the protest dispersed approximately four blocks after it began. Defendant was later charged with interfering with a peace officer and disorderly conduct.

At the time of the protest, the City of Ashland had adopted a resolution that required permits for parades, marches, or protests. In order to comply with the requirements, groups had to apply for permits weeks in advance, buy insurance for the event, obtain signatures from abutting residents and businesses, and pay anywhere from $130 to $1,000 for the permit. Defendant did not obtain a permit for the protest at issue in this case because of the cost and because he thought that the city could not constitutionally keep citizens from exercising their free speech rights by forcing them to pay excessive fees.

Defendant testified that the group protested in the street in order to make the protest " effective" because, when the group was protesting on the sidewalk, people had to be in a single-file line and the awnings over the sidewalks prevented the protesters from holding banners. Perrone testified that, if defendant had obtained a permit to conduct the protest, ...

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