Hanzo v. deParrie

• Decision Date: 18 February 1998
• Parties: Jude HANZO, Respondent, v. Paul dePARRIE, Appellant, and State of Oregon, Intervenor. 9603-02315; CA A94099.
• Court: Oregon Court of Appeals

Page 1130

953 P.2d 1130

152 Or.App. 525

Jude HANZO, Respondent, v. Paul dePARRIE, Appellant and State of Oregon, Intervenor.

9603-02315; CA A94099.

Court of Appeals of Oregon.

Submitted on Record and Briefs Aug. 29, 1997.

Decided Feb. 18, 1998.

Paul deParrie filed the briefs pro se.

Katherine A. McDowell, Deborah K. Smith and Stoel Rives LLP, Portland, filed the brief for respondent.

Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Robert M. Atkinson, Assistant Attorney General, filed the brief for intervenor.

Norman L. Lindstedt, Lindstedt & Buono, P.C., Portland, and Walter M. Weber, of Counsel, New Hope, KY, filed the brief for Amicus Catholics United for Life.

Before De MUNIZ, P.J., and DEITS, C.J., and HASELTON, J.

HASELTON, Judge.

Respondent Paul deParrie appeals from the judgment in this action under ORS 30.866, the civil stalking statute, in which petitioner Jude Hanzo sought and obtained a permanent stalking protective order (SPO) against deParrie. ¹ We conclude, on de novo review, that petitioner failed to prove that respondent, on two or more occasions, engaged in conduct constituting "a threat or something that does not differ meaningfully from one." State v. Rangel, 146 Or.App. 571, 577, 934 P.2d 1128, rev. allowed 325 Or. 367, 939 P.2d 43 (1997). Accordingly, we reverse the judgment granting the SPO.

At all material times, petitioner was the executive director of All Women's Health Services, a Portland health center that provides gynecological health care and counseling services, including performing abortions. In 1985, the clinic was the target of a mail bomb.

Respondent is a leader of Advocates for Life Ministries, a group that opposes abortion, and is also the editor of Life Advocate magazine. At various times, Life Advocate magazine has editorialized that the use of "godly force" is "morally justified" in defense of "innocent life." In addition, on two occasions, respondent signed declarations or manifestos of support for anti-abortionist activists who killed abortion providers. In 1993, respondent and 28 other activists signed the following statement concerning Michael Griffin, who shot and killed Dr. David Gunn in Pensacola, Florida:

"We, the undersigned, declare the justice of taking all godly action necessary to defend innocent human life including the use of force. We proclaim that whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child.

"We assert that if Michael Griffin did in fact kill David Gunn, his use of lethal force was justifiable provided it was carried out for the purpose of defending the lives of unborn children. Therefore, he ought to be acquitted of the charges against him."

The primary sponsor of that declaration was a group called "Defensive Action," whose director, Paul Hill, also signed the statement. In July 1994, Hill shot and killed Dr. John Britton and James Barrett, Britton's escort, and wounded Barrett's wife at another clinic in Pensacola. Respondent and 30 others subsequently signed a declaration that reiterated the earlier declaration and stated that Hill's "actions are morally justified if they were necessary for the purpose of defending innocent human life."

In 1994, respondent described Shelley Shannon, who had attempted to kill Dr. George Tiller, a Kansas abortion provider, as "a hero." ² In January 1995, respondent publicly stated that John Salvi was "morally justified" in killing two receptionists at a Boston abortion clinic.

There is no evidence that respondent himself has ever engaged in violent activity against abortion providers. Nor is there any evidence that he has ever directed others to engage in violent activities. Respondent has twice been arrested for trespass in connection with protests at abortion clinics, but the record does not disclose that he was convicted in either instance.

Although the record does not say so explicitly, it appears that, for some time before the spring of 1995, respondent had organized and participated in anti-abortion protests at the All Women's Health Services clinic. None of that activity, however, was directed to petitioner at her home.

In April 1995, that changed. Respondent and others initiated a so-called "S.H.A.M.E." ("Stigmatize, Harangue, Agitate, Mortify, and Expose") campaign that centered on petitioner's home. Although the parties vehemently disagree about the specific purpose of that campaign--i.e., whether it was intended to "coerce" and "terrorize" petitioner or merely to cause her to "reconsider" and "repent"--no one disputes that the S.H.A.M.E. campaign was generally calculated to bring anti-abortion efforts "home" to petitioner's personal life and personal space. ³

Conduct and communications allegedly associated with the S.H.A.M.E. campaign gave rise to petitioner's stalking complaint. Specifically:

On April 14, 1995, a copy of Life Advocate magazine was left on petitioner's doorstep and was distributed throughout her neighborhood. That issue included articles on a variety of anti-abortion activities and legal developments, ⁴ coverage of "rescue" operations, two pieces on an upcoming "no place to hide" campaign in Mississippi (which appears to be functionally indistinguishable from a S.H.A.M.E. campaign), and an essay by respondent, which commented on Planned Parenthood's alleged response to anti-abortion television advertisements and on reactions to anti-abortion signs at the Portland Rose Festival Parade. There is no direct evidence that respondent either personally delivered, or caused someone else to deliver, the publication to petitioner's residence and neighborhood. Although the publication includes references to abortion providers as "child killers," and an excerpt from an essay by a woman imprisoned for aiding and abetting the destruction of a clinic, it does not include any explicit advocacy of violence against abortion providers.

On April 15, 1995, petitioner received, at her home, a postcard picturing a fetus on a cross, bearing the legend "Father, forgive them, for they know not what they do." On the postcard was a handwritten note, "Please stop killing kids," signed, "a neighbor." Petitioner described the postcard as "a well-known Advocates for Life postcard"; there is, however, no direct evidence that respondent personally mailed the postcard or caused it to be mailed.

On April 22, 1995, respondent led a group of approximately nine anti-abortion protestors who picketed on public streets and sidewalks in front of petitioner's home and distributed written materials in petitioner's neighborhood. Before initiating those activities, respondent gave the Portland Police Bureau written notice of the anticipated picket. Before picketing, respondent and the others distributed bumper stickers reading "Free Paul Hill, Jail Abortionists." They also passed out handbills that bore petitioner's picture, as well as her name, home address and work telephone number. The handbill was captioned, "YOUR NEIGHBOR IS AN ABORTIONIST," and included the following text:

"[Petitioner] lives comfortably in her home in your neighborhood because she makes good money as an abortionist who kills children.

"Let her know that you think she should not kill children for a living.

"Write her at the above home address or call her at her office."

During the ensuing picketing, respondent and the others stood on the public street and sidewalk in front of respondent's home displaying a large sign that read "FREE PAUL HILL! JAIL ABORTIONISTS!" and other signs bearing anti-abortion slogans, none of which advocated violence against abortion providers. ⁵ The picketing activity was peaceful and involved no direct interaction between petitioner and respondent or the other participants. There is no evidence that respondent or the others trespassed on Hanzo's property or, for that matter, even engaged in shouting or chanting.

In June 1995, Advocates For Life mailed a flyer to the medical director of petitioner's clinic. That flyer, ⁶ which was captioned "THESE ABORTIONISTS HAVE BEEN EXPOSED!", included the pictures, names, addresses, and telephone numbers of five abortion providers, including petitioner, with check marks indicating that their residences had been picketed on certain dates. The text of the flyer continued:

"All of these have had their grisly trade revealed to their neighbors and friends by Advocates for Life Ministries pickets and leafleting. Advocates is committed to the regular exposure of abortionists through peaceful, non-violent activism.

"IF YOU'RE AN ABORTIONIST WE WILL BE VISITING YOUR NEIGHBORHOOD SOON!"

The reverse side of the flyer showed a picture of the April 22, 1995 picket at petitioner's residence, with the caption, "An AFLM picket in front of abortionist Jude Hanzo's house," and the following text:

"Advocates For Life Ministries has exposed one abortionist a month for the last six months through home picketing, leafleting and other activities protected under the First Amendment.

"We plan to continue these activities as a public service so that patients, colleagues, neighbors, and friends of these abortionists will know that this person kills children for a living.

"Inside is a list of those already picketed and addresses and phone numbers where they might be contacted. Please use whatever influence you have to convince them to practice real medicine in keeping with their Oath.

"COMING SOON TO YOUR NEIGHBORHOOD!"

Later in June 1995, respondent called petitioner at her home, despite the fact that she had an unlisted phone number and had never given respondent her phone number. Petitioner asked respondent how he had obtained her phone number; he responded that it had appeared on an Advocates for Life Ministries' caller-identification device; ⁷ she told him never to call again and then hung up. Respondent never called petitioner at her home again.

Finally, on January 6, 1996, respon...