J. C. R. v. McNulty

"[W]hen conduct is expressive, the Supreme Court has held that the Oregon Constitution requires a “communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” J. C. R. v. McNulty, 304 Or App 286, 291 (quoting State v. Rangel, 328 OR 294, 303, 977 P2d 379 (1999)).

J. C. R. appealed an order dismissing a citation to obtain a stalking protective order against McNulty. On appeal, J. C. R. asserted that the trial court erred when it required proof that the conduct in question posed a “credible threat” because it is not an element in the statute. The Court determined that the contact between parties was expressive and, therefore, subjected to added requirements. In State v. Rangel, the Oregon Supreme Court held that Article I, section 8 of the Oregon Constitution necessitates that if the contact is expressive, it must be “communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.” State v. Rangel, 328 OR 294, 303, 977 P2d 379 (1999). In this case, a majority of the conduct alleged was expressive, comprising of emails and letters, and, therefore, proof of a “credible threat” is required. Further, this case lacks proof that non-objective contact gave J. C. R. an objectively reasonable fear that a physical injury would occur. Affirmed.