72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 596
B-Engrossed
House Bill 2177
Ordered by the Senate May 15
Including House Amendments dated April 1 and Senate Amendments
dated May 15
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for the Department of Corrections)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Provides that inmates and others may not bring criminal or
civil stalking action against parole and probation officer or
officer, employee or agent of Department of Corrections, law
enforcement unit { + , county juvenile department + } or Oregon
Youth Authority for official conduct of officer, employee or
agent.
{ + Provides that respondent's statements at stalking order
hearing may not be used against respondent at criminal trial for
stalking or violating stalking order except for purposes of
impeachment. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to stalking; amending ORS 30.866, 163.738 and 163.755;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.755 is amended to read:
163.755. { + (1) + } Nothing in ORS 30.866 or 163.730 to
163.750 shall be construed to permit the issuance of a court's
stalking protective order under ORS 30.866 or 163.738, { + the
issuance of + } a citation under ORS 163.735, a criminal
prosecution under ORS 163.732 or a civil action under ORS
30.866 { + :
(a) + } For conduct that is authorized or protected by the
labor laws of this state or of the United States.
{ + (b) By or on behalf of a person who is in the legal or
physical custody of a law enforcement unit or is in custody under
ORS chapter 419C.
(c) By or on behalf of a person not described in paragraph (b)
of this subsection to or against another person who:
(A) Is a parole and probation officer or an officer, employee
or agent of a law enforcement unit, a county juvenile department
or the Oregon Youth Authority; and
(B) Is acting within the scope of the other person's official
duties.
(2) As used in this section, 'law enforcement unit' and '
parole and probation officer' have the meanings given those terms
in ORS 181.610. + }
SECTION 2. ORS 163.738 is amended to read:
163.738. (1)(a) A citation shall notify the respondent of a
circuit court hearing where the respondent shall appear at the
place and time set forth in the citation. The citation shall
contain:
(A) The name of the court at which the respondent is to appear;
(B) The name of the respondent;
(C) A copy of the stalking complaint;
(D) The date, time and place at which the citation was issued;
(E) The name of the law enforcement officer who issued the
citation;
(F) The time, date and place at which the respondent is to
appear in court;
(G) Notice to the respondent that failure to appear at the
time, date and place set forth in the citation shall result in
the respondent's arrest and entry of a court's stalking
protective order; and
(H) Notice to the respondent of potential liability under
federal law for the possession or purchase of firearms or firearm
ammunition and for other acts prohibited by 18 U.S.C. 2261 to
2262.
(b) The officer shall notify the petitioner in writing of the
place and time set for the hearing.
(2)(a) The hearing shall be held as indicated in the citation.
At the hearing, the petitioner may appear in person or by
telephonic appearance. The respondent shall be given the
opportunity to show cause why a court's stalking protective order
should not be entered. The hearing may be continued for up to 30
days. The court may enter:
(A) A temporary stalking protective order pending further
proceedings; or
(B) A court's stalking protective order if the court finds by a
preponderance of the evidence that:
(i) The person intentionally, knowingly or recklessly engages
in repeated and unwanted contact with the other person or a
member of that person's immediate family or household thereby
alarming or coercing the other person;
(ii) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(iii) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(b) In the order, the court shall specify the conduct from
which the respondent is to refrain, which may include all contact
listed in ORS 163.730 and any attempt to make contact listed in
ORS 163.730. The order is of unlimited duration unless limited by
law. If the respondent was provided notice and an opportunity to
be heard, the court shall also include in the order, when
appropriate, terms and findings sufficient under 18 U.S.C. 922
(d)(8) and (g)(8) to affect the respondent's ability to possess
firearms and ammunition or engage in activities involving
firearms.
(3) The circuit court may enter an order under this section
against a minor respondent without appointment of a guardian ad
litem.
(4) If the respondent fails to appear at the time, date and
place specified in the citation, the circuit court shall issue a
warrant of arrest as provided in ORS 133.110 in order to ensure
the appearance of the respondent at court and shall enter a
court's stalking protective order.
(5) The circuit court may also order the respondent to undergo
mental health evaluation and, if indicated by the evaluation,
treatment. If the respondent is without sufficient resources to
obtain the evaluation or treatment, or both, the court shall
refer the respondent to the mental health agency designated by
the community mental health director for evaluation or treatment,
or both.
(6) If the circuit court, the mental health evaluator or any
other persons have probable cause to believe that the respondent
is dangerous to self or others or is unable to provide for basic
personal needs, the court shall initiate commitment procedures as
provided in ORS 426.070 or 426.180.
(7) A law enforcement officer shall report the results of any
investigation arising from a complaint under ORS 163.744 to the
district attorney within three days after presentation of the
complaint.
{ + (8) Except for purposes of impeachment, a statement made
by the respondent at a hearing under this section may not be used
as evidence in a prosecution for stalking as defined in ORS
163.732 or for violating a court's stalking protective order as
defined in ORS 163.750. + }
SECTION 3. ORS 30.866 is amended to read:
30.866. (1) A person may bring a civil action in a circuit
court for a court's stalking protective order or for damages, or
both, against a person if:
(a) The person intentionally, knowingly or recklessly engages
in repeated and unwanted contact with the other person or a
member of that person's immediate family or household thereby
alarming or coercing the other person;
(b) It is objectively reasonable for a person in the victim's
situation to have been alarmed or coerced by the contact; and
(c) The repeated and unwanted contact causes the victim
reasonable apprehension regarding the personal safety of the
victim or a member of the victim's immediate family or household.
(2) At the time the petition is filed, the court, upon a
finding of probable cause based on the allegations in the
petition, shall enter a temporary court's stalking protective
order that may include, but is not limited to, all contact listed
in ORS 163.730. The petition and the temporary order shall be
served upon the respondent with an order requiring the respondent
to personally appear before the court to show cause why the
temporary order should not be continued for an indefinite period.
(3)(a) At the hearing, whether or not the respondent appears,
the court may continue the hearing for up to 30 days or may
proceed to enter a court's stalking protective order and take
other action as provided in ORS 163.738.
(b) If respondent fails to appear after being served as
required by subsection (2) of this section, the court may issue a
warrant of arrest as provided in ORS 133.110 in order to ensure
the appearance of the respondent in court.
(4) The plaintiff may recover:
(a) Both special and general damages, including damages for
emotional distress;
(b) Punitive damages; and
(c) Reasonable attorney fees and costs.
(5) The court may enter an order under this section against a
minor respondent without appointment of a guardian ad litem.
(6) An action under this section must be commenced within two
years of the conduct giving rise to the claim.
(7) Proof of the claim shall be by a preponderance of the
evidence.
(8) The remedy provided by this section is in addition to any
other remedy, civil or criminal, provided by law for the conduct
giving rise to the claim.
(9) No filing fee, service fee or hearing fee shall be charged
for a proceeding under this section if a court's stalking order
is the only relief sought.
(10) If the respondent was provided notice and an opportunity
to be heard, the court shall also include in the order, when
appropriate, terms and findings sufficient under 18 U.S.C. 922
(d)(8) and (g)(8) to affect the respondent's ability to possess
firearms and ammunition or engage in activities involving
firearms.
(11) ORS 163.741 applies to protective orders issued under this
section.
{ + (12) Except for purposes of impeachment, a statement made
by the respondent at a hearing under this section may not be used
as evidence in a prosecution for stalking as defined in ORS
163.732 or for violating a court's stalking protective order as
defined in ORS 163.750. + }
SECTION 4. { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect on its
passage. + }
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