State v. Gardiner ( 2023 )

274 November 29, 2023 No. 613
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN JAMES GARDINER,
Defendant-Appellant.
Washington County Circuit Court
19CR77922; A178357
Beth L. Roberts, Judge.
Submitted October 27, 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.
Affirmed.
Cite as 329 Or App 274 (2023) 275
KAMINS, J.
Defendant appeals from a judgment of conviction
entered after a conditional guilty plea for two counts of inter-
fering 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 defen-
dant’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 person-
nel 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
1
At the relevant time, ORS 162.247 (2019) provided:
“A person commits the crime of interfering with a peace officer if the person
* * * intentionally acts in a manner that prevents, or attempts to prevent, a
peace officer * * * from performing the duties of the officer * * *.”
2
Even assuming that a demurrer was the proper vehicle to bring this chal-
lenge and because defendant’s demurrer fails on the merits, we need not address
the potential procedural limitations of a demur when considering extrinsic facts.
See ORS 135.630 (demurrer standards); see also State v. Barrett, 302 Or App 23,
30 n 9, 460 P3d 93 (2020), rev den, 366 Or 731 (2020); State v. Howard, 325 Or App
696, 698 n 1, 529 P3d 247 (2023), rev den, 371 Or 333 (2023).
3
According to officer testimony, the police dog is “trained for [tracking] fresh
human odor” through footprints or air scent. Each dog track is never “exactly
the same” because factors like weather temperature and wind direction affect
a track. During a track, the dog-handler’s primary focus is to observe the dog’s
behavior as it searches for scents, while other officers provide cover for the
dog-handler.
276 State v. Gardiner
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 condi-
tional 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
P3d 616 (2016). The analytical framework for assessing
Article 1, section 8, constitutional challenges includes three
categories. State v. Robertson, 293 Or 402, 649 P2d 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 communi-
cation.” City of Eugene v. Miller, 318 Or 480, 488, 871 P2d
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 omit-
ted). Generally, those laws are analyzed for overbreadth. Id.The third category “consists of laws that focus[ ] on forbid-
den effects, but without referring to expression at all.” Id.(internal quotation marks omitted).
The parties agree that ORS 162.247 is a speech-neu-
tral statute that falls under category three, as contemplated
by Robertson. See Miller, 318 Or at 490 (explaining that if
a “law does not refer to expression at all, then the appro-
priate 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 con-
duct, the court must examine [1] how the law was applied
Cite as 329 Or App 274 (2023) 277
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 P3d 341 (2018), rev den, 363 Or 727 (2018) (internal quo-
tations 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 deter-
mine whether the application was directed at the content or
the expressive nature of an individual’s activities.” Pucket,
291 Or App at 774. Defendant argues that because the offi-
cers 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 under-
mine 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 inciden-
tal to his conduct of walking parallel to the dog track. See
City of Springfield v. Kellim, 324 Or App 614, 617, 527 P3d
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 con-
tent of his speech”).
Second, we consider whether the application of ORS
162.247 advanced legitimate state interests. Pucket, 291
Or App at 774. 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 inves-
tigations. We disagree. The state advanced the legitimate
interests of enforcing the statute for three reasons, which
278 State v. Gardiner
we find to be appropriate: (1) an armed suspect may have
been present in the area; (2) there were public and police offi-
cer 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 “pro-
vided ample alternative opportunities to communicate the
intended message.” Id. at 775. Defendant argues that offi-
cers did not provide alternative avenues because they did not
“provide him with specific, clear, unambiguous directions on
how to” film the police “that were narrowly tailored to their
concern.” We disagree. On at least two occasions, defendant
was told by at least two officers where to stand to avoid
interfering with the dog track. Before arresting defendant,
an officer told him to remain in a certain spot. Defendant
initially listened to the officer but then began walking par-
allel to the dog track. Defendant was arrested only after the
officers provided him alternative opportunities to remain in
specific areas to continue filming.
For the same reasons, we conclude that the officers’
conduct did not violate the First Amendment. Id. at 778
(explaining that because “the content-neutral application
of” the statute as applied to defendant’s conduct did not “run
afoul of Article I, section 8, it also passes muster under the
First Amendment”).
Affirmed.