Oregon Restraining Orders

  1. Restraining Orders

    1. Introduction

      Oregon allows a party to seek/obtain both Restraining Orders against abusers, and Stalking Protection orders.1 Restraining orders and Stalking Protective orders can be obtained upon petition to a state court.

    2. Text of the Statute(s)

      1. Or. Rev. Stat. § 163.735 – Citation (Form)

        (1) Upon a complaint initiated as provided in ORS 163.744 (initiation of action seeking citation), a law enforcement officer shall issue a citation ordering the person to appear in court within three judicial days and show cause why the court should not enter a court’s stalking protective order when the officer has probable cause to believe that:

        (a) 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;

        (b) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and

        (c) 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.

        (2) The Department of State Police shall develop and distribute a form for the citation. The form shall be uniform throughout the state and shall contain substantially the following in addition to any other materials added by the department:

        OFFICER:

        AGENCY:

        PETITIONER:

        PERSON TO BE PROTECTED IF OTHER THAN PETITIONER:

        RESPONDENT:

        On behalf of petitioner, I affirm that I am a law enforcement officer in the State of Oregon.

        You, the respondent, must appear at [name and location of court at which respondent is to appear] on [date and time respondent is to appear in court]. At this hearing, you must be prepared to establish why the court should not enter a court’s stalking protective order which shall be for an unlimited duration unless limited by law or court order. If you fail to appear at this hearing, the court shall immediately issue a warrant for your arrest and shall enter a court’s stalking protective order.

        If the court issues a stalking protective order at this hearing, and while the protective order is in effect, federal law may prohibit you from:

        Traveling across state lines or tribal land lines with the intent to violate this order and then violating this order.

        Causing the person protected by the order, if the person is your spouse or intimate partner, to cross state lines or tribal land lines for your purpose of violating the order.

        Possessing, receiving, shipping or transporting any firearm or firearm ammunition.

        Whether or not a stalking protective order is in effect, federal law may prohibit you from:

        Traveling across state lines or tribal land lines with the intent to injure or harass another person and during, or because of, that travel placing that person in reasonable fear of death or serious bodily injury to that person or to a member of that person’s immediate family.

        Traveling across state lines or tribal land lines with the intent to injure your spouse or intimate partner and then intentionally committing a crime of violence causing bodily injury to that person.

        Causing your spouse or intimate partner to travel across state lines or tribal land lines if your intent is to cause bodily injury to that person or if the travel results in your causing bodily injury to that person.

        It has been alleged that you have alarmed or coerced the petitioner, or person to be protected if other than the petitioner. If you engage in contact that alarms of coerces the petitioner, or person to be protected if other than the petitioner in violation of ORS 163.732 (Stalking), you may be arrested for the crime of stalking.

        Date:

        Time:

        Signed: [Respondent]

        Signed: [Law enforcement officer].

      2. Or. Rev. Stat. § 163.738 – Contents/Hearing/Courts Order/Use of Statements Made at Hearing

        (a) A citation shall notify the respondent of a circuit court hearing where the respondent shall appear at the place and time set forth in the citation. The citation shall contain:

        (A) The name of the court at which the respondent is to appear;

        (B) The name of the respondent;

        (C) A copy of the stalking complaint;

        (D) The date, time, and place at which the citation was issued;

        (E) The name of the law enforcement officer who issued the citation;

        (F) The time, date, and place at which the respondent is to appear in court;

        (G) Notice to the respondent that failure to appear at the time, date, and place set forth in the citation shall result in the respondent’s arrest and entry of a court’s stalking protective order; and

        (H) Notice to the respondent of potential liability under federal law for the possession or purchase of firearms or firearm ammunition and for other acts prohibited by 18 USC 2261 to 2262.

        (b) The officer shall notify the petitioner in writing of the place and time set for the hearing.

        (2) (a) The hearing shall be held as indicated in the citation. At the hearing, the petitioner may appear in person or by telephonic appearance. The respondent shall be given the opportunity to show cause why a court’s stalking protective order should not be entered. The hearing may be continued for up to 30 days. The court may enter:

        (A) A temporary stalking protective order pending further proceedings; or

        (B) A court’s stalking protective order if the court 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.

        (b) In the order, the court shall specify the conduct from which the respondent is to refrain, which may include all contact listed in ORS 163.730 (Definitions for ORS 30.866 and 163.730 (Definitions for ORS 30.866 and 163.730 to 163.750). The order is of unlimited duration unless limited by law. If the respondent was provided notice and an opportunity to be heard, the court shall also include in the order, when appropriate, terms and findings sufficient under 18 USC 922(d)(8) and (g)(8) to affect the respondents ability to possess firearms and ammunition or engage in activities involving firearms.

        (3) The circuit court may enter an order under this section against a minor respondent without appointment of a guardian ad litem.

        (4) If the respondent fails to appear at the time, date and place specified in the citation, the circuit court shall issue a warrant of arrest as provided in ORS 133.110 (Issuance) in order to

        ensure the appearance of the respondent at court and shall enter a court’s stalking protection

        order.

        (5) The circuit court may also order the respondent to undergo mental health evaluation, and, if indicated by the evaluation, treatment. If the respondent is without sufficient resources to obtain the evaluation or treatment, or both, the court shall refer the respondent to the mental health agency designated by the community mental health director for evaluation or treatment or both.

        (6) If the circuit court, the mental health evaluator or any other persons have probable cause to believe that the respondent is dangerous to self or others or is unable to provide for basic personal needs, the court shall initiate commitment procedures as provided in ORS 426.070 (initiation) or 426.180 (Emergency commitment of certain Native Americans).

        (7) A law enforcement officer shall report the results of any investigation arising from a complaint under ORS 163.744 (Initiation of action seeking citation) to the district attorney within three days after presentation of the complaint.

        (8) Except for purposes of impeachment, a statement made by the respondent at a hearing under this section may not be used as evidence in a prosecution for stalking as defined in ORS 163.732 (Stalking) or for violating a court’s stalking protective order as defined in ORS 163.740 (Violating a court’s stalking protective order).

      3. Or. Rev. Stat. § 163.741 – Service of stalking protective order; entry of order into law enforcement data systems

        (1) Service of a stalking protective order shall be made by personal delivery of a copy of the order to the respondent. The respondent need not be served if an order of the court indicates that the respondent appeared in person before the court.

        (2) Whenever a stalking protective order, as authorized by ORS 163.735 (Citation) or 163.738 (Effect of citation), is served on a respondent, the person serving the order shall immediately deliver to the county sheriff a true copy of the affidavit of proof of service, on which it is stated that personal service of the order was made on the respondent, and a copy of the order. If service of the order is not required under subsection (1) of this section, a copy of the order must be delivered to the sheriff by the court. Upon receipt of a copy of the order and notice of completion of any required service by a member of a law enforcement agency, the country sheriff shall immediately enter the order into the Law Enforcement Data System maintained by the Department of State Police and into the databases of the National Crime Information Center of the United States Department of Justice. If the order was served on the respondent by a person other than a member of the law enforcement agency, the county sheriff shall enter the order into the Law Enforcement Data System and databases of the National Crime Information Center upon receipt of a true copy of the affidavit of proof of service. The sheriff shall provide the complainant with a true copy of any required proof of service. Entry into the Law Enforcement Data System constitutes notice to all law enforcement agencies of the existence of the order. Law enforcement agencies shall establish procedures adequate to ensure that an officer at the scene of an alleged violation of the order may be informed of the existence and terms of the order. The order is fully enforceable in any county in this state.

        (3) When a stalking protective order has been entered into the Law Enforcement Data System and the databases of the National Crime Information Center of the United States Department of Justice under subsection (1) of this section, a county sheriff shall cooperate with a request from a law enforcement agency from any other jurisdiction to verify the existence of the stalking protective order or to transmit a copy of the order to the requesting jurisdiction.

        (4) When a stalking protective order is terminated by order of the court, the clerk of the court shall immediately deliver a copy of the termination order to the county sheriff with whom the original order was filed. Upon receipt of the termination order, the county sheriff shall promptly remove the original order from the Law Enforcement Data System and the databases of the National Crime Information Center of the United States Department of Justice.

      4. Or. Rev. Stat. § 163.744 – Initiation of action seeking citation; complaint form

        (1) A person may initiate an action seeking a citation under ORS 164.746 (Citation) by presenting a complaint to a law enforcement officer or to any law enforcement agency. The complaint shall be a statement setting forth with particularity the conduct that is the basis for the complaint. The petitioner must affirm the truth of the facts in the complaint.

        (2) The Department of State Police shall develop and distribute the form of the complaint. The form shall include the standards for reviewing the complaint and for action. The form shall be uniform throughout the state and shall include substantially the following material.

        STALKING COMPLAINT

        Name of petitioner (person presenting complaint):

        Name of person being stalked if other than the petitioner:

        Name of respondent (alleged stalker):

        Description of respondent:

        Length of period of conduct:

        Description of relationship (if any) between petitioner or person being stalked, if other than the petitioner, and respondent:

        Description of contact:

        Subscribed to and affirmed by: [signature of petitioner]; [printed name of petitioner]

        Dated:

        (3) A parent may present a complaint to protect a minor child. A guardian may present a complaint to protect a dependent person.

        (4) By signing the complaint, a person is making a sworn statement for purposes of ORS 162.055 (Definitions for ORS 162.055 to 162.425) to 162.425 (Misuse of confidential information).

      5. Or. Rev. Stat. § 163.750 – Violating a court’s stalking protective order

        (1) A person commits the crime of violating a court’s stalking protective order when:

        (a) The person has been served with a court’s stalking protective order as provided in ORS 30.866 (Action for issuance or violation of stalking protective order) or 173.738 (Effect of citation) or if further service was waived under ORS 163.741 (Service of stalking protective order) because the person appeared before the court;

        (b) The person, subsequent to the service of the order, has engaged intentionally, knowingly or recklessly in conduct prohibited by the order; and

        (c) If the conduct is prohibited contact as defined in ORS 163.730 (Definitions for ORS 30.866 and 163.730 to 163.750) (3)(d), (e), (f), (h), or (i), the subsequent conduct has created a reasonable apprehension regarding the personal safety of a person protected by the order.

        (2) (a) Violating a court’s stalking protective order is a Class A misdemeanor.

        (b) Notwithstanding paragraph (a) of this subsection, violating a court’s stalking protective order is a Class C felony if the person has a prior conviction for:

        (A) Stalking; or

        (B) Violating a court’s stalking protective order.

        (c) When violating a court’s stalking protective order is a Class C felony pursuant to paragraph (b) of this subsection, violating a court’s stalking protective order shall be classified as a person felony and as a crime category 8 of the sentencing guidelines grid of the Oregon Criminal Justice Commission.

      6. Or. Rev. Stat.§ 163.755 – Conduct for which stalking protective order may not be issued

        (1) Noting in ORS 30.866 (Action for issuance or violation of stalking protective order) or 163.730 (Definitions for ORS 30.866 and 163.740 to 163.750) to 163.750 (Violating a court’s stalking protective order) shall be construed to permit the issuance of a court’s stalking protective order under ORS 30.866 (Action for issuance or violation of stalking protective order) or 163.738 (Effect of citation), the issuance of a citation under ORS 163.735 (Citation), a criminal prosecution under ORS 163.732 (Stalking) or a civil action under ORS 30.866 (Action for issuance or violation of stalking protective order):

        (a) For conduct that is authorized or protected by the labor laws of this state or of the United States.

        (b) By or on behalf of a person who is in the legal or physical custody of a law enforcement unit or is in custody under ORS Chapter 419C.

        (c) By or on behalf of a person not described in paragraph (b) of this subsection to or against another person who:

        (A) is a parole and probation officer, employee, or agent of a law enforcement unit, a county juvenile department or the Oregon Youth Authority; and

        (B) Is acting within the scope of the other person’s official duties.

        (2) As used in this section, law enforcement unit and parole and probation officer have the meanings given those terms in ORS 181.610 (Definitions for ORS 181.610 to 181.712).

      7. Or. Rev. Stat. § 30.866 – Action for issuance or violation of stalking protective order; attorney fees

        (1) A person may bring a civil action in a circuit court for a court’s stalking protective order or for damages, or both, against a person if:

        (a) 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.

        (b) It is objectively reasonable for a person in the victim’s situation to have been coerced by the contact; and

        (c) 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.

        (2) At the time the petition is filed, the court, upon a finding of probable cause based on the allegations in the petition, shall enter a temporary court’s stalking protective order that may include, but is not limited to, all contact listed in ORS 163.730 (Definitions for ORS 30.866 and 163.740 to 163.750). The petition and the temporary order shall be served upon the respondent with an order requiring the respondent to personally appear before the court to show cause why the temporary order should not be continued for an indefinite period.

        (3) (a) At the hearing, whether or not the respondent appears, the court may continue the hearing for up to 30 days or may proceed to enter a court’s stalking protective order and take other action as provided in ORS 163.738 (Effect of citation).

        (b) If respondent fails to appear after being served as required by subsection (2) of this section, the court may issue a warrant of arrest as provided in ORS 133.110 (Issuance) in order to ensure the appearance of the respondent in court.

        (4) The plaintiff may recover:

        (a) Both special and general damages, including damages for emotional distress;

        (b) Punitive damages; and

        (c) Reasonable attorney fees and costs.

        (5) The court may enter an order under this section against a minor respondent without appointment of a guardian ad litem.

        (6) An action under this section must be commenced within two years of the conduct giving rise to the claim.

        (7) Proof of the claim shall be by a preponderance of the evidence.

        (8) The remedy provided by this section is in addition to any other remedy, civil or criminal, provided by this law for the conduct giving rise to the claim.

        (9) No filing fee, service fee or hearing fee shall be charged for a proceeding under this section if a court’s stalking order is the only relief sought.

        (10) If the respondent was provided notice and an opportunity to be heard, the court shall also include in the order, when appropriate, terms and findings sufficient under 18 USC 922(d)(8) and (g)(8) to affect the respondent’s ability to possess firearms and ammunition or engage in activities involving firearms.

        (11) ORS 163.741 (Service of stalking protective order) applies to protective orders issued under this section.

        (12) Except for purposes of impeachment, a statement made by the respondent at a hearing under this section may not be used as evidence in a prosecution for stalking as defined in ORS 163.732 (Stalking) or for violating a court’s stalking protective order as defined in ORS 163.750 (Violating a court’s stalking protective order).

    3. Cases

      1. Castro v. Heinzman, 194 Or. App. 7, 922 2P.3d 758 (Or. Ct. App. 2004)

        • Procedural Posture: Respondent, petitioner’s ex-boyfriend, appealed from the lower court’s decision granting petitioner’s request for an SPO against him.

        • Law: SPO.

        • Facts: Petitioner and respondent dated for a couple of months. When petitioner broke up with respondent, he reacted poorly and began calling and emailing her incessantly. The two also belonged to the same gym, and he approached her there repeatedly despite her requests that he not continue to do so. The trial court granted the SPO, and the respondent appealed.

        • Outcome: The court affirmed the lower court’s decision granting the SPO because the petitioner put forth sufficient evidence that her ex-boyfriend repeatedly contacted her via phone, e-mail and in-person despite her repeated requests that he stay away. Although none of the respondent’s statements “constituted an overt threat of physical violence”—they were mainly just declarations of love—“[n]evertheless, many of respondent’s contacts with petitioner—particularly his statements in the late February e-mails, considered in combination with his in-person encounters with petitioner at the gym during that time—would alarm a reasonable person. For example, respondent repeatedly alluded to his fantasies—some of them coercive in nature—of resuming a sexual relationship with petitioner.”2 Moreover, the court found respondent’s conduct particularly disturbing in light of his admission to the petitioner that he had been violent toward a former spouse.3

        • Special Notes: The court considered the context very important, and determined that his actions were not purely expressive because he repeatedly physically approached the petitioner.4

      2. J.L.B. v. Braude, 250 Or. App. 122, 279 P.3d 290 (Or. Ct. App. 2012)

        • Procedural Posture: On appeal from decision granting plaintiff an SPO against her ex-husband and his current wife.

        • Law: SPO.

        • Facts: Petitioner sought an SPO against her ex-husband and his former wife. She and her ex-husband have two children, and they had an acrimonious divorce. Respondent Mr. Braude married his new wife one year later. Petitioner accused defendant’s new wife of having made inappropriate inquiries into her accounts at a bank and a gas company, contacting the children’s school in violation of the parties’ custody agreement, and walking past the petitioner in the parking lot at her work place. Petitioner also accused both respondents of repeatedly driving by her rural home in a manner that alarmed her. She alleged that on more than a dozen days between mid-August and October 2009, one or both of the defendants’ cars were spotted in her neighborhood, and sometimes stopped near the entrance of her driveway for up to ten minutes at a time. At the hearing, the respondents acknowledged that Mr. Braude’s new wife had repeatedly driven by petitioner’s home in order to gather evidence to use in the post-judgment modification proceedings in the parties’ divorce case. Respondents believed that petitioner’s boyfriend lived with her—contrary to what she had indicated in her Uniform Support Affidavit—so the new wife had taken photographs of the boyfriend’s car at the house on the advice of the respondents’ attorney. At the hearing, there was undisputed evidence establishing that no one ever had seen either one of the respondents’ cars travel into the petitioner’s property, and no one had seen either petitioner exit their vehicle, gesture toward the petitioner’s house, or attempt to speak with the petitioner or with anyone else. Nonetheless, the petitioner testified that she found the incidents alarming because her husband had behaved violently toward her when they were married, and she did not know what he was capable of. The trial court concluded that the evidence sufficed to support the entry of a permanent SPO based on respondents’ driving to petitioner’s house repeatedly early in the morning and parking there. The court relied on 13 photos of the petitioner’s property allegedly taken by the respondents noting that the pictures corroborated petitioners’ neighbors’ testimony and ended speculation about whether any unwanted contact had occurred. Moreover, the court found that the history between the petitioner and her ex-husband justified her fear for her safety. Respondents appealed.

        • Outcome: The court reversed the SPO because it found that petitioner failed to put forth sufficient evidence to show that respondents made her fear for her safety. The court explained that although respondents’ behavior was unwelcome and unsettling, it “did not itself evince any threat to petitioner’s safety. Respondents did not enter petitioner’s property during those incidents, did not make threatening gestures or comments (indeed, they did not attempt to communicate with petitioner or her neighbors in any way), and did not wait at the end of the driveway for lengthy periods of time. . . Moreover, respondents were not strangers to petitioner.”5 The court further explained that the driveway incidents alone were not threatening, and did not become “objectively threatening when considered in the context of [respondent’s] earlier violent acts. We recognize that conduct that might appear benign when viewed in isolation can take on a different character when viewed either in combination with or against the backdrop of one party’s aggressive behavior toward the other,” but here, the parties’ past relationship was not so violent that the recent contacts should have been threatening.6

        • Special Notes: It is worth noting that the court looked carefully at how “violent” the parties’ past relationship had been in weighing whether the petitioner could be “objectively threatened” by respondents’ behavior. The past relationship had to include more than “isolated” violence to warrant the SPO.7

      3. Osborne v. Fadden, 225 Or. App. 431, 201 P.3d 278 (Or. Ct. App. 2009)

        • Procedural Posture: Appeal from lower court order granting plaintiffs, husband and wife, an SPO against plaintiff’s ex-husband and his current wife.

        • Law: Civil conspiracy to stalk petitioners.

        • Facts: The Osbornes sought SPOs against ex-husband and his current wife. The Osbornes alleged that defendants had repeatedly entered their information into websites offering mortgage loans, magazine subscription and music services, resulting in at least 50 bills for unwanted services. The subscriptions hurt the Osbornes’ credit rating. Plaintiff Mrs. Osborne also alleged that her ex-husband’s new wife had sent her emails posing as plaintiff’s best friend. She had also sent Mrs. Osborne’s employer emails posing as the custody evaluator, and emails to plaintiff Mr. Osborne’s employer seeking to get him fired. The trial court entered two SPOs, a money judgment and an order certifying compliance with federal domestic firearm laws. The court determined that there was sufficient evidence that the defendants had conspired to stalk the plaintiffs. The defendants appealed asserting that there was insufficient evidence of an agreement between defendants to engage in the disputed conduct. The appeals court found sufficient circumstantial evidence of a conspiracy because the emails and solicitations used information about Mrs. Osborne’s friends, family and children and personal information that could have only been supplied by her ex-husband.

        • Outcome: The court overturned the SPOs and money judgment because the emails and telephone solicitations did not put plaintiffs in fear for their personal safety, or the personal safety of a member of their immediate family or household.8 The court explained that although “the volume and nature of e-mails and telephone calls generated by [defendant Mrs. Fadden] was troubling and offensive to plaintiffs . . .none of those contacts would cause petitioners to have a reasonable apprehension about their personal safety. Even the sexual solicitations received by [Mrs. Osborne] would not do that, because there is no evidence that the calls were obscene or threatening—the callers merely indicated that they were responding to an invitation to contact her.”9 The court also noted that because the respondents had engaged in a civil conspiracy, the evidence against each one is imputed to the other. Accordingly, both defendants were in “the same legal position.”10

        • Special Notes: Even though there was enough evidence for a civil conspiracy, where there was not enough evidence to uphold the SPOs against one of the defendant, it was insufficient as to both of them.

      4. Delgado v. Souders, 334 Or. 112, 46 P.3d 729 (Or. 2002)

        • Procedural Posture: On review following the affirmance of the lower court decision entering a Stalking Protective Order (“SPO”) against the defendant under ORS 30.866.

        • Law: ORS 30.866 (civil anti-stalking statute).

        • Facts: Plaintiff was a student at Oregon State University. She alleged that between September and November 1995, defendant followed her and made her uncomfortable. She submitted very specific evidence of the basis for her fear of defendant. When plaintiff got an SPO, the defendant argued that his behavior was too innocuous to amount to stalking, and that plaintiff’s reaction to his behavior was not objectively reasonable.

        • Outcome: The court affirmed the court of appeals’ decision and the trial court’s order. The court determined that defendant acted “with a conscious objective to engage in repeated and unwanted contact with [plaintiff],” and acted despite his subjective awareness of “a substantially unjustifiable risk that the contacts in question are repeated and unwanted by the [plaintiff].”11 The court considered the following facts to be significant to affirm the judgment against defendant: “(1) defendant’s close physical proximity to plaintiff (between one and three feet) when no other people were nearby and, on the occasion in November, when a large, unobstructed area was available to defendant; (2) on the occasion in November, defendant’s crossing the street diagonally away from plaintiff immediately upon passing her and then making ‘side glances’ in her direction; and (3) the fact that defendant had appeared in plaintiff’s presence on numerous occasions in the preceding months, on one occasion passing by plaintiff in the same physically close manner and crossing the street diagonally away upon passing her, while glancing in her direction. . . . We conclude that these facts support the reasonable inference that defendant was aware of and then consciously and unreasonably disregarded a substantial and unjustifiable risk that, on two occasions, he had come into plaintiff’s presence when she did not want the contacts.”12 The court also dismissed defendant’s constitutional challenges. The court found that the statute was an exception to Article I, Section 11 because it was based upon the historical exception for injunctions preventing spousal harassment and the exception for criminal contempt proceedings.13 Defendant’s vagueness argument also failed because the terms that defendant challenged were not “vague by failing to identify the prohibited conduct for a person of ordinary intelligence.”14 Finally, the court also found that defendant failed to articulate how a provision allowing the SPO to continue indefinitely gives rise to a constitutional violation of his right to travel where the intent was to prevent the commission of certain crimes against particular persons, and the law was specifically limited to such contact.15

        • Special Notes: Delgado shows that where a victim is able to put forth firm examples of defendant’s conduct that made him or her uncomfortable for an extended period of time, she is more likely to be able to obtain a restraining order from the court.

      5. State v. Ryan, 350 Or. 670, 261 P.3d 1189 (Or. 2011)

        • Procedural Posture: Review of whether statute setting forth offense of violating an SPO was not impermissibly overly broad in violation of the State Constitution’s free speech provision as it applied to the defendant.

        • Law: Or. Rev. Stat. § 163.750 (Violating an SPO).

        • Facts: The victim was an editor of a weekly newspaper. Soon after a newspaper-sponsored event to which the public was invited, the defendant began writing to the victim. Among other things, defendant’s letters assumed that he and the victim were involved in a relationship. The letters began coming several times a week, and defendant came to the newspaper office asking for the victim. Defendant also left the victim phone messages both at her home and at work. Defendant also began contacting the victim’s parents in order to try to get access to the defendant. Because the victim feared the defendant may become violent if his fantasies were dispelled, she obtained a temporary SPO against him. The SPO directed the defendant to “stop any contact with” the victim, and “any attempt to make contact.” The order also defined “contact” as including, among other things, “[c]ommunicating with the other person by any means, including through a third person.”16 Defendant received notice of the order, but he continued to attempt to contact the victim, using her father as a “filter” to avoid communicating with her directly. For instance, he sent a letter to the victim’s father asking him to thank her for her support and to wish her a happy mother’s day. He also delivered a package to the victim’s father’s workplace containing a mother’s day card and other gifts, as well as a letter asking the victim’s father to pass his “gratitude” onto the victim if appropriate.17 The defendant was charged under ORS 163.750 with three counts of violating the victim’s SPO. The trial court rejected his motion for judgment of acquittal, but the appeals court reversed, holding that the defendant’s actions in violation of the SPO were protected because none of defendant’s statements were unequivocal threats creating a fear of imminent and serious personal violence.18 The Court rejected this argument.19

        • Outcome: On review, the Oregon Supreme Court reversed the court of appeals and affirmed defendant’s conviction, holding that because defendant’s communications with the victim were already prohibited by the stalking protective order, the state was not required by Article I, section 8, to prove under ORS 163.750 that defendant had communicated an unequivocal threat to the victim. The court explained that defendant was rightfully convicted of one of the named communicative types of misconduct—communicating with the victim through a third person,20 and the state proved that the defendant’s conduct created a reasonable apprehension regarding the personal safety of the victim.

        • Special Notes: The defendant made a confusing contradictory argument that he was not challenging any aspects of the SPO itself, but that the order nonetheless was indisputably unlawful because it reached protected speech in violation of the Oregon constitution.21

    4. Practice Pointers

      • A person may obtain a stalking protective order in two ways: (1) the victim can file a complaint with law enforcement22; or (2) the victim can directly petition the circuit court to issue a civil stalking protective order.23

      • To obtain a stalking protective order, a petitioner must establish: (1) that two or more times, within the two years before the request for the SPO, the respondent intentionally or knowingly or recklessly engaged in unwanted contact with the petitioner or a member of the petitioner’s immediate family or household, thereby alarming or coercing the petitioner; (2) when viewed in the totality of the circumstances, it is objectively reasonable for the petitioner to have been alarmed or coerced by the contacts; and (3) the contacts must have caused the petitioner reasonable apprehension about the personal safety of the petitioner or a member of his or her immediate family or household (personal safety does not encompass apprehension of harm other than physical harm).24

      • It is worth noting that Oregon courts strictly enforce the requirement that the conduct in question caused petitioners “reasonable apprehension about” their personal safety, or the personal safety of their family/household.25 Even where a defendant’s actions are harassing and problematic, e.g. signing a victim up for websites, or putting their name and contact information on websites, such acts will not warrant an SPO unless the petitioners are truly fearful for their physical security.26

    1. WomensLaw.org, available at: http://www.womenslaw.org/laws_state_type.php?statelaw_name=Restraining%20Orders&state_code=OR (last visited May 17, 2013). 

    2. Castro v. Heinzman, 194 Or. App. 7, 922 2P.3d 758, 762 (Or. Ct. App. 2004). 

    3. Id

    4. Id

    5. J.L.B. v. Braude, 250 Or. App. 122, 279 P.3d 290, 294 (Or. Ct. App. 2012). 

    6. Id

    7. Id

    8. Osborne v. Fadden, 225 Or. App. 431, 201 P.3d 278, 283 (Or. Ct. App. 2009). 

    9. Id

    10. Id

    11. Delgado v. Souders, 334 Or. 122, 46 P.3d 729, 749 (Or. 2002). 

    12. Id. at 741. 

    13. Id. at 741-42. 

    14. Id. at 748-49. 

    15. Id. at 750-51 

    16. State v. Ryan, 350 Or. 670, 261 P.3d 1189, 1190 (Or. 2011). 

    17. Id. at 1191. 

    18. Id

    19. Id

    20. Or. Rev. Stat.§ 173.730(3)(f). 

    21. Ryan, 261 P.3d at 1191-92. 

    22. Or. Rev. Stat. § 163.735-163.744 (outlining procedure). 

    23. Or. Rev. Stat. § 30.866 (obtaining a civil stalking order does not involve law enforcement involvement). 

    24. Osborne, 201 P.3d at 283. 

    25. See Or. Rev. Stat. 30.866(1)(c). 

    26. Osborne, 201 P.3d at 284. 

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