Stalking and the Effect of a Threat in One incident on the Reasonableness of Fear in Another Incident

Oregon has a stalking protection law that requires two incidents causing reasonable fear of imminent harm to qualify for a protective order. Because of the courts’ interpretation of the free speech clause in the state constitution, threats only count if they are threats of immediate violence. A recent case, however, shows that a threat can be used as evidence that fear caused in another incident was reasonable.

The case in question involves three neighbors in a condominium. The petitioner lived in the middle unit, and the respondents on either side. It appears that the disputes began over the petitioner’s actions as a member of the homeowner’s association board, but they very quickly took on a homophobic character.

There were two incidents with the first respondent. The first incident involved the petitioner asking whether the board had approved a sign advertising a yard sale. In response, the first respondent started arguing with the petitioner and shaking his fists. When the petitioner walked away, the first respondent challenged him to come back and “I’ll show you.” The second incident occurred after the association trimmed trees in the complex. The first respondent, upset at having his trees cut, knocked on the petitioner’s door, and when he opened it, pushed through and physically attacked the petitioner while yelling at him and using homophobic language.

The Court of Appeals ruled that of the incidents involving the first respondent, the second incident qualified as a stalking incident. (In fact, the first respondent had been arrested.) The first incident, however, was ruled not a sufficient threat of imminent violence to qualify. The petitioner had walked away, and the first respondent had not pursued him after issuing his challenge. For this reason, petitioner was not given a protective order against the first respondent.

There were multiple encounters between the petitioner and the second respondent, and nearly all of them involved homophobic language. In the first incident, the second respondent rapidly and aggressively approached the petitioner and his partner with his fists clenched, said that he didn’t like gay people living near him (using homophobic language), and continued to insult both the petitioner and his partner with homophobic language. Several days later, the second respondent used homophobic slurs in addressing the petitioner. About a week later, the second respondent accused gay people of damaging the homeowners’ association, again using homophobic language. That evening, the second respondent attempted to run down the petitioner with a bicycle. Two days later, at the beginning of the tree trimming operations that eventually provoked the attack by the first respondent, the second respondent approached the petitioner and said that within a few days, the petitioner and his partner would be off the homeowners’ association board, or they would be dead. Two days after that, second respondent approached the petitioner and again told him that he and his partner would be off the board, and that they would be out of the neighborhood, using another homophobic insult. A few days later, the second respondent approached the petitioner and his partner in the carport, with clenched fists, shouted another homophobic slur at them and told them to watch their luck. The petitioner characterized the second respondent’s behavior as repeatedly “coming out of nowhere” at him.

The Court of Appeals ruled that this series of incidents did include two qualifying stalking incidents. The first was the bicycle incident, which was an attempted physical assault. The second was the last incident, in which the second respondent approached with fists clenched. The court reasoned that after the extended series of threats and insults over several weeks, a person could reasonably be frightened by someone approaching as though he intended to start a fight. As a result, it ruled that the petitioner should be issued a protective order against the second respondent.

If you are receiving threats that do not, in themselves, threaten immediate violence, but the person making the threats also approaches you in a way that frightens you, that may mean that the approach is a stalking incident. If you have two stalking incidents, then you may have grounds for a protective order. You may want to consult a lawyer or a victims’ assistance program to decide whether to petition the court for the order.

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