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D. O. v. Richey

Court of Appeals of Oregon

December 4, 2019

D. O., Petitioner-Respondent,
Eli Franklyn RICHEY, Respondent-Appellant.

          Argued and Submitted August 1, 2019

          Multnomah County Circuit Court 17SK02618, Adrienne C. Nelson, Judge.

          Jesse 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.

          Denis M. Vannier argued the cause and fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

         Case Summary:

         Respondent, 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.


         [301 Or.App. 19]DeVORE, J.

         Respondent 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 reverse.[1]

         Because 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).


         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.[2] 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.

         Petitioner 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.

         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 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 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?
[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 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 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.

         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 precinct 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] 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."

         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 concern, however, once she realized that respondent was that person.

         Petitioner 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.

         Safeway's 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.

         Petitioner 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."

         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 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 ...

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