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