D. O., Petitioner-Respondent,
Eli Franklyn RICHEY, Respondent-Appellant.
and Submitted August 1, 2019
Multnomah County Circuit Court 17SK02618, Adrienne C. Nelson,
Merrithew argued the cause for appellant. Eli Franklyn Richey
fled the opening brief pro se. On the reply brief were Jesse
Merrithew and Levi Merrithew Horst PC.
M. Vannier argued the cause and fled the brief for
Lagesen, Presiding Judge, and DeVore, Judge, and Powers,
a self-identified citizen journalist and police watchdog,
appeals a judgment and stalking protective order (SPO)
prohibiting contact with petitioner, a police chief. He
contests the sufficiency of the evidence supporting the SPO,
arguing that the SPO erroneously relied on
constitutionally-protected speech, and that petitioner failed
to prove that her alarm was objectively reasonable.
Held: The record contains insufficient evidence to
permit issuance of an SPO. Petitioner offered three potential
contacts to support her request, two of which involved
expressive communication and nonexpressive conduct that
failed to meet the respective standards for causing
objectively reasonable alarm. Because the first two
encounters cannot serve as requisite contacts, the record
contains insufficient evidence of repeated unwanted contacts,
regardless of whether the third incident could qualify.
Or.App. 19]DeVORE, J.
appeals a judgment and stalking protective order (SPO),
prohibiting contact with petitioner, a police chief.
Respondent contests the sufficiency of the evidence
supporting the SPO. He argues that the SPO erroneously relied
on constitutionally protected speech and that petitioner
failed to prove that her alarm was objectively reasonable. 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
this is not an "exceptional case" warranting de
novo review, we review the trial court's factual
findings 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 P.3d 853
(2014). In doing so, we view the evidence, as well as all
reasonable inferences that we draw from it, in the light most
favorable to granting the petition. Delgado v.
Souders, 334 Or. 122, 134, 46 P.3d 729 (2002).
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 [301 Or.App.
20] 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.
sought the SPO against respondent, pursuant 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
central 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 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.
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 pedestrian 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
"[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?
[301 Or.App. 21]"[Addressing petitioner's
companions] Are you her handlers? 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
"[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."
point in the video, petitioner entered the building of the
police department's central precinct, her companions kept
walking down the sidewalk, and respondent 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.
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 precinct building.
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] 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 [301 Or.App. 22]
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."
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 concern, however, once she
realized that respondent was that person.
testified that both she and respondent seemed surprised to
see one another. Respondent said something 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 expression immediately went from that of
surprise" to "completely fiat 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.
surveillance footage also captured that encounter. It showed
petitioner and her family member waiting 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 petitioner and respondent
talking. Respondent remained still [301 Or.App. 23]
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.
testified that she found the interaction at Safeway alarming
for several reasons. She noted respondent's change to a
"very serious" face and tone as he processed 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 member, who had not "signed up for the
level of scrutiny that this sort of behavior entailed."
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 officials, 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
number 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 officers "in the street when
they're at work and on duty," arriving 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 respondent 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 respondent affiliates, has ...