State v. Gardiner

• Docket Number: A178357
• Decision Date: 29 November 2023
• Citation: 329 Or.App. 274
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. RYAN JAMES GARDINER, Defendant-Appellant.
• Court: Oregon Court of Appeals

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329 Or.App. 274

STATE OF OREGON, Plaintiff-Respondent,
v.
RYAN JAMES GARDINER, Defendant-Appellant.

A178357

Court of Appeals of Oregon

November 29, 2023

Submitted October 27, 2023

Washington County Circuit Court 19CR77922; Beth L. Roberts, Judge.

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.

Affirmed.

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[329 Or.App. 275] 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

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[329 Or.App. 276] 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 659 (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...