State v. Gardiner

329 Or.App. 274

540 P.3d 604

STATE of Oregon, Plaintiff-Respondent,

v.Ryan James GARDINER, Defendant-Appellant.

A178357

Court of Appeals of Oregon.

Submitted October 27, 2023

November 29, 2023

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

KAMINS, J.

Defendant appeals from a judgment of conviction entered after a conditional guilty plea for two counts of interfering with a peace officer, ORS 162.247 (2019).¹ Defendant assigns error to the trial court's denial of his demurrer and argues that the statute is overbroad as applied to defendant's right to free expression under Article 1, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. We affirm.

Defendant and the state agree as to the relevant facts, which were adduced at the hearing on defendant's demurrer.² A woman reported that a man knocked on her door, stabbed her in the face, and ran away. Hillsboro Police Officers and medical and fire department personnel responded to that call. In order to find the assailant, the officers deployed a K-9-unit tracking dog. Defendant approached the area on foot and began filming. At one point, while defendant was present, a bicyclist rode through the area after being told to wait 30 seconds by an officer. Defendant had some interactions with officers, and each of them told him to stay clear of the "dog track."³ Defendant was arrested after he disobeyed Edwards’ order to leave the area because defendant continued to walk parallel to the dog track, thereby "interfering with the scent" and interfering with the duties of the police officers. Defendant was charged under ORS 162.247 with two counts of interfering with a peace officer. He filed a demurrer to the charges, asserting an "as applied" challenge to the statute's application under Article I, section 8, and the First Amendment. When the trial court denied his demurrer, defendant entered a conditional guilty plea.

On appeal, defendant asserts that the charges violate his constitutional right to film police activity, which is protected under Article I, section 8, and the First Amendment. The state agrees that filming the police is a protected activity but contends that defendant was not convicted for filming the police; rather he "was convicted because he interfered with the performance of [the officers’] duties," an act that was completely independent from his filming.

We review a trial court's denial of a demurrer for legal error. State v. Hirschman , 279 Or App 338, 344, 379 P.3d 616 (2016). The analytical framework for assessing Article 1, section 8, constitutional challenges includes three categories. State v. Robertson , 293 Or. 402, 649 P.2d 569 (1982). The first category "consists of laws that focus on the content of speech or writing or are written in terms directed to the substance of any opinion or any subject of communication." City of Eugene v. Miller , 318 Or. 480, 488, 871 P.2d 454 (1994) (internal quotation marks omitted; emphasis in original). The second category "consists of laws that focus[ ] on forbidden effects but expressly prohibit[ ] expression used to achieve those effects." Id. (internal quotation marks omitted). Generally, those laws are analyzed for overbreadth. Id. The third category "consists of laws that focus[ ] on forbidden effects, but without referring to expression at all." Id. (internal quotation marks omitted).

The parties agree that ORS 162.247 is a speech-neutral statute that falls under category three, as contemplated by Robertson . See Miller , 318 Or. at 490, 871 P.2d 454 (explaining that if a "law does not refer to expression at all, then the appropriate inquiry is whether the law could be constitutionally applied to the defendant's specific act or acts of expression. That ‘as applied’ inquiry arises out of the third Robertson category."). In order to determine whether a "category three law violates Article I, section 8, as applied to particular conduct, the court must examine [1] how the law was applied to determine whether the application was directed at the content or the expressive nature of an individual's activities, [2] advanced legitimate state interests, and [3] provided ample alternative opportunities to communicate the intended message." State v. Pucket , 291 Or App 771, 774-75, 422 P.3d 341 (2018), rev. den. , 363 Or. 727, 429 P.3d 388 (2018) (internal quotations omitted). For the reasons discussed below, we agree that the trial court properly found that all three factors favor the state.

First, we consider "how the law was applied to determine whether the application was directed at the content or the expressive nature of an individual's activities." Pucket , 291 Or App at 774, 422 P.3d 341. Defendant argues that because the officers allowed a bicyclist to ride through the area and yet "disallow[ed] defendant to film, the officers exercised their authority more restrictively against defendant than they did other members of the public" (emphasis in original). We disagree. Before the bicyclist rode through the area where the dog track was present, the officer ordered the bicyclist to stop and wait 30 seconds; the bicyclist obliged and rode away without any incident. That interaction does not undermine the conclusion that defendant's conduct of walking parallel to the dog track and disobeying orders—as opposed to the expressive activity of filming the police—were the basis of his arrest. Indeed, the officers repeatedly reassured defendant he could film but told him that he needed to avoid the dog track. Defendant's filming of the police was incidental to his conduct of walking parallel to the dog track. See City of Springfield v. Kellim , 324 Or App 614, 617, 527 P.3d 68 (2023) (explaining that a statute is not unconstitutional when "directed at noncommunicative elements, and that, as applied to defendant * * * was [not] directed * * * at the content of his speech").

Second, we consider whether the application of ORS 162.247 advanced legitimate state interests. Pucket , 291 Or App at 774, 422 P.3d 341. Defendant argues that the application of the statute did not advance legitimate state interests because his following the dog track did not hinder any police investigations. We disagree. The state advanced the legitimate interests of enforcing the statute for three reasons, which we find to be appropriate: (1) an armed suspect may have been present in the area; (2) there were public and police officer safety concerns because of that armed suspect; (3) and the situation was not static because there were no defined search boundaries.

Finally, we consider whether defendant was "provided ample alternative opportunities to communicate the...