The Oregon Court of Appeals on Wednesday threw out the stalking order that Portland Police Chief Danielle Outlaw obtained two years ago against Oregon cop watcher Eli Richey, finding insufficient evidence of repeated unwanted contact or violent threats.

In December 2017, then-Multnomah County Judge Adrienne C. Nelson granted Outlaw an indefinite stalking protective order against Richey.

Outlaw at the time took the witness stand and said she was alarmed and intimidated by Richey’s behavior, describing how he followed her and filmed her on Dec. 8, 2017, while she was walking from City Hall back to her office in the Justice Center while she was on duty. Two days later, she said Richey followed her to her car in the parking garage of the downtown Safeway grocery store while she was off duty with a family member. He filmed her personal car and its license plate as she drove off and posted the video on his YouTube site.

Richey argued that he has the right to film the chief while she’s on duty and in uniform and said he was "nonaggressive'' and stayed at a reasonable distance in both December encounters. He argued that the two incidents cited don’t rise to the level of alarming an individual or warrant a stalking order.

The state Court of Appeals reviewed video that Ritchey filmed of his encounters with the chief.

To obtain a stalking protective order, state law requires two or more unwanted contacts with someone within a two-year period and that each gives rise to “objectively reasonable alarm’’ that would cause “apprehension or fear resulting from the perception of danger.’’

Further, any speech-based contact would rise to an element of stalking only if it “constitutes a threat,’’ according to the Oregon Supreme Court. The state’s high court defined “threat” to mean any communication that instills a “fear of imminent and serious personal violence from the speaker’’ and is “objectively likely to be followed by unlawful acts.’’

The Court of Appeals found Outlaw’s two encounters with Richey “involve expressive communication and nonexpressive conduct that fail to meet the respective standards for causing objectively reasonable alarm,'' according to its 24-page ruling.

During the first encounter, the Appeals Court found Richey shouted a name, acronym or “something like Nazi’’ and “wheel of fortune’’ from across the street at the chief, who was with two other officers. When the chief crossed the intersection, Richey raised issues of traffic safety and policing while filming Outlaw, who was in uniform, on duty and on a public sidewalk outside Central Precinct.

Although the chief may have found it “concerning that (Richey) was ‘screaming’ from across the street and he ‘wasn’t whispering’ or ‘speaking in a normal conversation[al] voice’ after she crossed,’’ nothing Richey said threatened violence, the court ruled.

The court noted that the encounter was brief and occurred “in the bustling downtown of a sizable urban area in broad daylight.’’

Outlaw failed to show how Richey “trailing a city block and then walking in front of her as he filmed would reasonably ‘cause apprehension or fear resulting from the perception of … a threat of physical injury,'” Judge Joel S. DeVore wrote for the Court of Appeals.

“The encounter involved the sort of peaceful and lawful exchange that officials in positions like petitioner’s commonly face and expect in going about their work,’’ the opinion said.

During the interaction at Safeway, Richey kept several feet of distance from the chief and neither what he said nor his actions gave rise to “objectively reasonable alarm,’’ the court found.

Although Richey approached the chief while she was off duty, “he was engaging with her public persona, addressing her by her formal title. The record contains no evidence to suggest that (Richey’s) presence was unlawful, and (Richey) did not follow petitioner beyond the Safeway store or otherwise indicate an intent to further intrude into her private life.’’

The chief had argued that his actions were alarming in light of his past activities and his alleged “fixation’’ with her. She also noted that Richey had posted a video online that captured part of the license plate on her personal car.

But the Appeals Court found that none of Richey’s videos contained or espoused threats of violence. While the bureau’s criminal intelligence division has found Richey’s behavior “bizarre’’ or his presence as a cop watcher who films officers “distracting,’’ no one has alleged he’s committed a crime or caused harm “beyond mere annoyance,’’ the court ruling said.

While the court said it recognizes “vigorous advocacy of conflicting viewpoints may create feelings of anger, fear, annoyance or loss of control’’ to a police chief or similar public officials, a stalking order is warranted only when actions or speech involve a threat or fear of imminent and serious personal injury.

Attorney Jesse Merrithew, who represented Richey in the appeal, said, "I think the court got it right. This was not the kind of conduct that warranted a stalking order.'' Richey had represented himself in Multnomah County Circuit Court when the chief sought the order.

Lt. Tina Jones, a spokeswoman for Outlaw, said, "The Chief will be meeting with the City Attorney’s Office staff to discuss next steps.''

-- Maxine Bernstein

Email at mbernstein@oregonian.com

Follow on Twitter @maxoregonian

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