Utah Court of Appeals

Can obscene gestures constitute stalking under Utah law? Higley v. Buhler Explained

2019 UT App 96
No. 20180925-CA
June 6, 2019
Affirmed

Summary

Buhler appealed a permanent civil stalking injunction after he repeatedly drove past Higley’s residence and made obscene gestures following an earlier physical altercation that resulted in Higley’s hospitalization. The district court found that Buhler’s post-fight conduct, viewed in context of the prior assault, constituted stalking under Utah’s civil stalking statute.

Analysis

Background and Facts

In Higley v. Buhler, the Utah Court of Appeals examined whether making obscene gestures could constitute stalking when viewed in the proper legal context. After a physical altercation on July 7, 2018, that resulted in Higley’s hospitalization and Buhler’s arrest for assault, Buhler repeatedly drove past Higley’s residence and made obscene gestures toward Higley and his family members. Higley sought and obtained a temporary civil stalking injunction, which Buhler challenged at a hearing.

Key Legal Issues

The central issue was whether Buhler’s conduct satisfied Utah’s stalking statute under Utah Code section 76-5-106.5. The statute requires a course of conduct that would cause a reasonable person in the victim’s circumstances to fear for their safety or suffer emotional distress. Buhler argued that making obscene gestures constituted protected speech and that the evidence was insufficient to establish stalking.

Court’s Analysis and Holding

The Court of Appeals affirmed, emphasizing that Utah’s stalking statute uses an individualized objective standard requiring courts to consider “the entire context surrounding respondent’s conduct.” The court properly considered whether Buhler’s post-assault conduct would cause a reasonable person in Higley’s specific circumstances to fear for safety. The statute’s definition of “reasonable person” as “a reasonable person in the victim’s circumstances” allows courts to evaluate conduct contextually rather than in isolation.

Practice Implications

This decision demonstrates the importance of contextual analysis in stalking cases. Courts will not view alleged stalking incidents in isolation but will consider prior relationships and incidents between parties. Practitioners should note that constitutional arguments must be specifically preserved at the trial court level. The decision also clarifies that conduct qualifying as “communicates to or about a person” under the statute can include non-verbal gestures when evaluated within the appropriate factual context.

Original Opinion

Link to Original Case

Case Details

Case Name

Higley v. Buhler

Citation

2019 UT App 96

Court

Utah Court of Appeals

Case Number

No. 20180925-CA

Date Decided

June 6, 2019

Outcome

Affirmed

Holding

A district court properly considers conduct in the totalized context of prior incidents when determining whether behavior constitutes stalking under Utah Code section 76-5-106.5.

Standard of Review

Correctness for interpretation and application of statutes

Practice Tip

When challenging civil stalking injunctions, address constitutional arguments at the trial court level to preserve them for appeal, as failure to raise specific constitutional claims will result in waiver.

Need Appellate Counsel?

Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.

Related Court Opinions

    • Utah Court of Appeals

    Smith Investment Company v. Sandy City

    April 30, 1998

    A municipal downzoning ordinance does not violate substantive due process or effect a regulatory taking when the ordinance rationally relates to legitimate police power goals and the property retains economically viable use after rezoning.
    • Constitutional Rights (Criminal)
    • |
    • Land Use and Zoning
    • |
    • Statutory Interpretation
    • |
    • Summary Judgment
    Read More
    • Utah Court of Appeals

    In re C.M.R.

    August 6, 2020

    A juvenile court may infer harm from evidence that a parent’s restraint of a child restricted the child’s breathing and caused choking, sufficient to support an abuse finding.
    • DCFS and Child Welfare
    • |
    • Evidence and Admissibility
    • |
    • Ineffective Assistance of Counsel
    • |
    • Standard of Review
    Read More
About these Decision Summaries

Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.