Stranahan v. Fred Meyer, Inc.

958 P.2d 854, 153 Or. App. 442

• Court: Court of Appeals of Oregon
• Decided: April 22, 1998
• Docket: 9110-06504; CA A88372
• Status: Published

Opinions

RIGGS, P. J.

Plaintiff Lois Stranahan brought this action for false arrest against defendant Fred Meyer, Inc. (Fred Meyer), and a jury returned a verdict in her favor for $125,000 in compensatory damages and $2 million punitive damages. After trial, the trial court reduced the punitive damage award from $2 million to $375,000. Both parties have appealed. We reverse on appeal and affirm on cross-appeal.

Before turning to the parties’ specific arguments, we must set forth the rather complicated factual and legal context surrounding this case. Because most of the assignments of error concern the denial of Fred Meyer’s motion for a directed verdict, we set forth the relevant facts in the light most favorable to Stranahan as the nonmoving party, and give her every reasonable inference that may be drawn from the evidence. Shockey v. City of Portland, 313 Or 414, 422-23, 837 P2d 505 (1992), cert den 507 US 1017 (1993).

Stranahan has long been a political activist in Oregon, and has promoted her political beliefs through use of the initiative process. This political activity has often involved gathering signatures to put the initiatives she supports on the ballot. Her first signature-gathering efforts to put an initiative on the ballot occurred in the 1940s, and involved lowering the voting age. At the time of the incident at issue in the present case, Stranahan was gathering signatures to put initiatives on the ballot concerning sales taxes and the rights of initiative petitioners. Fred Meyer, a chain of shopping centers, maintains that it has a right to exclude initiative petitioners such as Stranahan from its shopping centers and its property surrounding those shopping centers.

On October 11,1989, Stranahan and another signature-gatherer, Philip Mitchell, were arrested for trespassing outside a Fred Meyer shopping center at Southeast 82nd and Foster, in Portland. This litigation stems from that arrest.

Stranahan went into the shopping center and notified the manager that she would be petitioning outside for several hours. The manager told her not to come within five steps of the doors, and she agreed. She gathered signatures for several hours. In the late afternoon, Michael McClendon, an employee of Fred Meyer’s security department, was dispatched from Fred Meyer’s headquarters and went to the shopping center where Stranahan was petitioning. He had written directions for dealing with initiative petitioners that instructed him to take with him a preliminary injunction that had been issued against Lloyd Marbet in an unrelated matter concerning petitioning on Fred Meyer premises. McClendon ordered Stranahan to leave. Stranahan and Mitchell explained that they had a legal right to be there and showed him a newspaper article about a recent trial court ruling that an initiative petitioner had a constitutional right to petition at a Fred Meyer shopping center. McClendon told Stranahan that if she did not leave, he would call the police and have her taken to jail. Stranahan did not leave.

Parkerson, a police officer, was summoned to the shopping center by Fred Meyer security where he was met by McClendon. McClendon showed Parkerson the Marbet injunction, and told him that it was an injunction against petitioners petitioning on Fred Meyer property. Parkerson asked Stranahan to leave, and she refused to do so. Strana-han was taken into custody and transported to jail. As she was entering the police car, she injured her back while trying to avoid parts of the seats that had blood on them. She later began to have chest pains, and needed to take a nitroglycerine tablet at the police station. She eventually was issued a citation and then released. No criminal charges were pursued against Stranahan because it was the policy of the Mult-nomah County District Attorney’s office at that time not to pursue this type of criminal trespass case against initiative petitioners. Fred Meyer knew about that policy at the time of Stranahan’s arrest.

According to McClendon, his orders concerning initiative petitioners were to try to persuade them to leave and, if they would not, to call the police and show them the Marbet injunction. He claimed that he was never to arrest petitioners himself and was not to sign any complaints.¹ McClendon testified that he did not arrest Stranahan and did not ask Parkerson to arrest Stranahan. ² Parkerson, however, testified that Stranahan had been arrested by McClendon. The citation that Parkerson issued indicated that Stranahan had been arrested by McClendon.

John Velke, a vice president of Fred Meyer, was aware of the practice of dispatching security personnel to locations where citizens were petitioning, using the unrelated Marbet injunction to try to make the petitioners leave, and showing the injunction to police officers. Velke acknowledged that it might be misleading if police officers were led to believe that the injunction applied to petitioners not connected with the Marbet matter. Velke testified that Fred Meyer stopped using the Marbet injunction in that manner in 1990. Velke testified that it had always been the policy of Fred Meyer not to arrest initiative petitioners. However, evidence was introduced that Mr. DeHahn, head of Fred Meyer security, had instructed a store manager to place an initiative petitioner under citizen’s arrest on December 31, 1988. Evidence also was introduced that DeHahn had testified in 1988, in previous litigation concerning the rights of initiative petitioners to petition at Fred Meyer shopping centers, that he had ordered the arrests of initiative petitioners. Evidence was introduced that Robert Cornutt, also with Fred Meyer security, had testified in another case some three months after Stranahan’s arrest that it was company policy to arrest initiative petitioners.

Kellie Petersen, another initiative petitioner, testified that she had been arrested while petitioning at a Fred Meyer shopping center in Oregon City, that her case had gone to trial on September 29, 1989, and that she had been acquitted on the ground that she had a constitutional right to petition at the shopping center in question. Approximately three weeks after her acquittal (and shortly after Strana-han’s arrest at issue in this case), Petersen attempted to gather signatures on a petition outside a Fred Meyer shopping center in Portland and was arrested again. She was handcuffed and taken to jail, but the charges were dismissed. Several months later, Cherie Holenstein, who had previously been arrested for petitioning at a Fred Meyer shopping center and eventually had her conviction overturned on appeal,³ returned to the same shopping center where she previously had been arrested. She was again arrested for gathering signatures on an initiative petition. In February 1992, Petersen again attempted to gather signatures on an initiative petition at a Fred Meyer shopping center. Fred Meyer personnel presented Petersen with a set of petitioning rules that purportedly were issued by a state circuit court. Those rules indicated that only two petitioners could be present, that they had to give 24 hours notice before petitioning, that they had to pay a $50 deposit, and that they could not get up from their table. This document also stated: “The Circuit Court of the State of Oregon shall have continuing jurisdiction to modify and enforce these rules, in the event of a change of circumstances or allegations of rule violation.” Petersen was told that the rules were a court order. Petersen, however, had with her a copy of the actual court order concerning petitioning at Fred Meyer shopping centers, which allowed up to four petitioners, did not require a $50 deposit, did not require petitioners to stay at a table, and did not require 24 hours notice. When Petersen presented the Fred Meyer personnel with the real court order, they left her alone.

Multnomah County District Attorney Michael Schrunk met in 1988 and 1989 with representatives of Fred Meyer, expressing his view that initiative petitioners were not criminals, that his office was busy with murders, rapes, and armed robberies, and suggesting that Fred Meyer resolve its disputes with initiative petitioners through civil rather than criminal processes. He agreed to pursue one criminal case (the Cargill case discussed at length below), but indicated that his office would not pursue this type of criminal trespass case until it received an appellate ruling concerning initiative petitioners’ constitutional rights. Strana-han’s arrest, as well as Petersen’s 1989 arrest in Portland, occurred during this period when the District Attorney’s office was not prosecuting this type of trespass case.

A vice president of Fred Meyer, Cheryl Perrin, testified that Fred Meyer had never permitted initiative petitioning in its shopping centers, except on one occasion when it sponsored a ballot measure to allow sales of liquor at its shopping centers. She testified that Fred Meyer did not reevaluate that policy in light of the Oregon Supreme Court’s decision in Lloyd Center v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (discussed below).⁴ She testified that in the past Fred Meyer had allowed voter registration drives and food drives for the needy at its shopping centers. At trial in this case, she denied that Fred Meyer had decreased these community activities in order to avoid having to permit initiative petitioning at its shopping centers. However, she was impeached with her testimony from a prior trial that indicated that Fred Meyer had banned such community activities in its shopping centers because it was concerned that, if it allowed such activities, it might be obligated to allow initiative petitioning.

In the past decade, Oregon law concerning initiative petitioning at shopping centers has been developing. The facts recited above must be viewed in the context of that law. Before Stranahan’s arrest, several appellate decisions had been handed down concerning initiative petitioning in shopping centers. In February 1988, this court decided Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157 (1988), aff'd on other grounds 307 Or 674, 773 P2d 1294 (1989). That case involved the efforts of the Lloyd Center, a large shopping center, to obtain injunctive relief against initiative petitioners gathering signatures on its property. The trial court issued an injunction enjoining the defendants “from entering upon plaintiffs private property to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without plaintiffs permission or consent.” Whiffen, 89 Or App at 631. This court reversed on the ground that such an injunction to enforce the plaintiffs property rights could inhibit the defendants’ constitutional rights of expression protected under Article I, section 8, of the Oregon Constitution.⁵ Id. at 634. In May 1989, the Oregon Supreme Court issued its decision in that case. On review, the court did not find it necessary to reach the question of whether initiative petitioners had a constitutional right to gather signatures at shopping centers such as the Lloyd Center. Rather, the court based its decision that the plaintiff was not entitled to injunctive relief on equitable considerations. Injunctive relief, the court stated, is equitable and discretionary, and is not necessarily available upon a showing of trespass. Whif-fen, 307 Or at 680-84 ('Whiffen I). The court recognized the strong public interest in facilitating the initiative process, and further noted that the signature-gathering process itself “is a form of political speech.” Id. at 684. The court concluded that that public interest would be seriously injured by an injunction as broad as the one issued in that case. Id. at 685-87. The court further concluded that a narrower injunction, imposing time, place and manner restrictions on the defendants’ petitioning activities, would suffice. The court, however, emphasized that its decision was based on principles of equity and not of constitutional law: “[A]ny residual legal issues may well be left to plaintiffs remedies at law.” Id. at 688.

Shortly after the Oregon Supreme Court’s decision in Whiffen I, it revisited the issue of initiative petitioning at shopping centers in Fred Meyer, Inc. v. Roberts, 308 Or 169, 777 P2d 406 (1989), decided in July 1989. That case concerned the accuracy of a ballot title prepared by the Attorney General describing a proposed initiative measure that would have amended the Oregon Constitution to allow signature-gathering activities in shopping malls and outside of pedestrian entrances to buildings open to the public. The Attorney General’s ballot title stated that the measure would protect such petitioning activity. Fred Meyer challenged the accuracy of the ballot title, arguing that the language implied that the constitutional amendment would protect an existing right. The court agreed, stating that “Whiffen clearly does not stand for the proposition that there is a ‘right’ to gather petition signatures on all ‘premises open to the public.’ ” Fred Meyer, 308 Or at 174 (emphasis in original). The court observed that “the state of the law is in issue and a motivating reason for mounting this initiative effort.” Id.

Thus, at the time of Stranahan’s arrest, this court had recognized that petitioners have a right under Article I, section 8, of the Oregon Constitution, to gather signatures at the Lloyd Center. The Oregon Supreme Court, while expressing no opinion on that constitutional question, had indicated that broad injunctive relief prohibiting petitioning would not be appropriate given the important public interests involved in the initiative process, and further had indicated that the law was unsettled.

As noted above, before the arrest at issue in this case, the Multnomah County District Attorney had decided to pursue a test case concerning criminal trespass charges against initiative petitioners. That case was State v. Cargill, 100 Or App 336, 786 P2d 208 (1990), aff'd by an equally divided court 316 Or 492 (1993). In Cargill, the six criminal defendants had been arrested for soliciting signatures on initiative petitions outside of a Fred Meyer shopping center in southeast Portland. The criminal defendants argued that they could not be prosecuted because their petitioning activity was constitutionally protected under Article I, section 8, and Article IV, section 1, of the Oregon Constitution.⁶ This court noted that, under the criminal trespass statute,⁷ the state has the burden to prove that an order to leave was “lawful” if the defendant has raised a defense that he or she was engaged in a constitutionally protected activity.⁸ Cargill, 100 Or App at 340. This court concluded:

“Petitioners were engaged in a constitutionally protected activity. The interference with Fred Meyer’s property interest was minimal or non-existent. Prosecuting defendants for criminal trespass for refusing to obey a direction to leave the entrance of the store under these circumstances would render inadequate the people’s opportunity to function in their legislative role and would violate Article IV, section 1.” Id. at 348.

See also Lloyd Center v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II) (Article IV, section 1, of the Oregon Constitution, confers rights to gather signatures on initiative petitioners in common areas of large shopping centers, subject to reasonable time, place and manner restrictions).

Stranahan brought this action against Fred Meyer, claiming false arrest and seeking compensatory and punitive damages.⁹ A jury awarded Stranahan compensatory and punitive damages, and the trial court subsequently reduced the punitive damage award to three times the amount of compensatory damages. Stranahan appeals the reduction of the punitive damage award; Fred Meyer cross-appeals, assigning as error the trial court’s denial of its motion for a directed verdict as well as several evidentiary rulings. We turn first to Fred Meyer’s arguments concerning the trial court’s denial of its motion for a directed verdict.

The tort of false arrest occurs when a person is unlawfully detained by another. See generally Christ v. McDonald, 152 Or 494, 52 P2d 655 (1936). Once the plaintiff has demonstrated that the detention occurred, the law presumes that the detention was unlawful until the contrary is shown. Easton v. Hurita, 290 Or 689, 692, 625 P2d 1290 (1981). The defendant in a false arrest action must plead and prove that an arrest was justifiable or lawful in order to avoid liability. Christ, 152 Or at 501.

Fred Meyer argues that the trial court erred in denying its motion for a directed verdict, because it had, in fact, established that Stranahan was committing the crime of trespass at the time of her arrest, and thus her arrest was lawful. Fred Meyer asserts that initiative petitioners do not have a constitutional right to gather signatures at the shopping center at issue in the present case, because that shopping center is not the type of shopping center described in Whiffen II, Cargill, State v. Dameron, 316 Or 448, 853 P2d 1285 (1993), and similar cases. In order to address this argument, we must examine the various cases that describe the types of shopping centers at which initiative petitioners may lawfully gather signatures. The Oregon Supreme Court’s decision in Whiffen II discusses petitioning rights in “large shopping centers such as the Lloyd Center.” 315 Or at 514. See also Dameron, 316 Or at 459 (quoting same language; reversing convictions because state failed to establish that the Raleigh Hills Fred Meyer shopping center at issue in that case was not such a shopping center where petitioners had a constitutional right to gather signatures: “[T]he sum total of the evidence in this case presents a picture of premises that are not materially different from [the Lloyd Center].”).

In Cargill, this court held that initiative petitioners had a constitutional right to gather signatures at a Fred Meyer shopping center. 100 Or App at 344-45. We stated that the shopping center at issue there was the modern replacement for a town square, that it was designed to meet a very wide range of consumer needs, that it had benches and bulletin boards, and that people congregated at its restaurant for conversation and social contact. Id. However, this court has emphasized that not all Fred Meyer shopping centers are necessarily required to allow initiative petitioning activity. In Fred Meyer, Inc. v. McDonald, 112 Or App 321, 322, 828 P2d 1054, rev den 316 Or 382 (1992), the trial court had denied injunctive relief to Fred Meyer against a petitioner on the ground that it was bound by the holding in Cargill. This court disagreed, noting that the holding in Cargill was limited by its facts: the store in question in Cargill was subject to petitioning because it was a “forum for assembly by the community.” Cargill, 100 Or App at 348. In Dameron, the court’s considerations included the fact that the Fred Meyer shopping center “is completely surrounded by parking lots that are available for use by anyone visiting the Center for any lawful purpose, e.g., to shop, eat, bank, browse, visit a barber shop, beauty salon, professional offices, day care facility, stroll through the garden center, etc.” Dameron, 316 Or at . In Safeway, Inc. v. Jane Does 1 through 50, 141 Or App 541, 545, 920 P2d 168 (1996), this court summarized what is involved in determining whether a shopping center is required to allow initiative petitioning:

“Whether a right exists under Article IV, section 1, to gather signatures for initiative petitioners in the common areas of large privately owned shopping centers open to the public for commercial purposes depends on more than [the size of the shopping center and the type of goods it sells]. In cases in which we and the Supreme Court have held that such a right exists, we have considered nonexclusive factors such as the size and configuration of the premises, its relationship to other businesses in the area, whether the premises are bordered by public or private properties, whether the premises are intersected by public streets and sidewalks, whether the premises and adjoining multiple privately owned businesses open directly onto public areas, and whether there are public transportation stops adjacent to the premises. Also pertinent to the inquiry are the scope of business endeavors that are included in the surrounding area and conducted on the premises, the characteristics of the invitation to the public by the businesses in the area, the availability of areas for the public to congregate for noncommercial purposes, the number of people who frequent the premise and the purposes for which the premises and common areas are used.” (Footnote and citations omitted.)

In Wabban, Inc. v. Brookhart, 142 Or App 261, 921 P2d 409, rev den 324 Or 395 (1996), we applied these criteria in a case involving two Home Base stores. We concluded that initiative petitioners did not have a constitutional right to gather signatures at those locations, for the following reasons:

“We conclude that the sidewalks and parking lots of the San Raphael and Beaverton [Home Base] stores are not the modern-day equivalent of town squares. The scope of noncommercial invitation to these premises is limited. The stores themselves sell only home improvement items. Neither shopping center in which the stores are located provides a broad array of commercial enterprises, nor does either attempt to be a ‘one stop’ shopping area. There is no evidence that the store’s parking lots or sidewalks are places where the public is consistently invited to congregate for noncommercial purposes, nor is there evidence that plaintiff has extended an invitation to the public to use its sidewalks and parking lots for noncommercial activity by providing areas for the public to congregate or community bulletin boards. The fact that plaintiffs maintain hotdog carts at both stores and that a carnival is held once a year on the other side of the San Raphael shopping center parking lot does not significantly alter the scope of the invitation to the public.” Id. at 266.

With the criteria set forth in previous cases concerning initiative petitioning at shopping centers in mind, we turn to the present case. The facts, as recited above, are not in dispute. We view the evidence in the light most favorable to Stranahan, and give her every reasonable inference that may be drawn from that evidence. Shockey, 313 Or at 422-23. We review the trial court’s ultimate legal conclusion concerning the lawfulness of Stranahan’s conduct as a matter of law. Fred Meyer asserts on appeal that the trial court should have directed a verdict in its favor on the question whether the shopping center at issue was one at which initiative petitioners may exercise their rights under Article IV, section 1, of the Oregon Constitution. For the reasons that follow, we conclude that the trial court correctly denied Fred Meyer’s motion for a directed verdict.

The shopping center at issue in this case is approximately 110,000 square feet. That is about the same size as the Raleigh Hills Fred Meyer shopping center discussed in Dameron, and significantly larger than the Hawthorne Fred Meyer shopping center discussed in Cargill. The shopping center at issue here has parking lots on three sides, and all of the customer entrances open onto the parking lots. The shopping center conducts approximately 18,000 transactions per week through the main checkout stands, excluding sales that occur in the separate departments, such as jewelry and nutrition, which have their own cash registers. It sells a wide range of consumer products, from food and beverages to clothing, sporting goods, automotive goods, electronics, housewares, drugs, and jewelry. It has tenant businesses that provide banking services, shoe repair, and dry cleaning. A beauty salon and a Vista Optical store also are tenants. A separate home improvement center is located in a building across a public street.

Like the shopping center at issue in Cargill, the shopping center at issue here is designed to meet a wide range of consumer needs. The shopping center endeavors to provide a wide range of products and services on the premises because it wants its customers to meet all of their consumer needs, and spend all of their consumer dollars, at the shopping center. Fred Meyer has, for its own advantage, extended a broad invitation to the public to come to its shopping center. Whiffen II, 315 at 510-11. None of the entrances, including entrances to the tenant businesses, is accessible from a public sidewalk. A public street separates the main shopping center from the home improvement center. A wide array of commercial services is available at this shopping center and in the surrounding area. In sum, the Fred Meyer shopping center at issue here is physically similar to those at issue in Dameron and Cargill, it is used for similar purposes, and the scope of its invitation to the public is equally broad. This evidence supports the trial court’s conclusion that the shopping center at issue here is a “large shopping center,” as that term has been used in cases such as Dameron. Evidence in the record supports the trial court’s conclusion that Fred Meyer did not establish that Stranahan’s petitioning activity was unlawful.¹⁰

Fred Meyer next argues that the trial court’s conclusion that Stranahan was not committing the crime of second-degree criminal trespass at the time she was arrested violates defendant’s constitutional rights under Article I, section 18, of the Oregon Constitution, and the Fifth Amendment to the United States Constitution (taking of property without just compensation), as well as defendant’s rights under Article I, sections 3 and 8, of the Oregon Constitution, and the First Amendment to the United States Constitution (freedom of speech and freedom of association). Those arguments, in a nutshell, are that the state violates these constitutional provisions by requiring Fred Meyer to allow Stranahan to remain on its property against its wishes. There is a fundamental flaw to those arguments. Even if Fred Meyer were correct that its constitutional rights were implicated, but see PruneYard Shopping Center v. Robins, 447 US 74, 100 S Ct 2035, 64 L Ed 2d 741 (1980) (rejecting such arguments); Whiffen II, 315 Or at 504-06 (same),¹¹ it does not follow that the state is therefore required to criminalize Stranahan’s conduct in order to protect Fred Meyer’s alleged constitutional rights.

This case is about false arrest, and thus necessarily is about the crime of second-degree trespass for which Fred Meyer had Stranahan arrested. Fred Meyer did not have a constitutional right to have Stranahan arrested for the crime of second-degree criminal trespass when Stranahan’s conduct did not, in fact, violate the criminal trespass law. See, e.g., Cargill, Dameron. There is no constitutional right to any particular arrangement of the criminal law. Crimes are offenses against the state and, except as the state may provide by law, individuals do not have any right to arrest or prosecute others. The state could, at its discretion, simply choose to repeal the criminal trespass laws entirely. That also would not violate Fred Meyer’s various asserted constitutional rights. The state need not provide Fred Meyer an avenue within the criminal code by which it may vindicate its asserted constitutional rights.¹² Fred Meyer’s takings, free speech, and freedom of association arguments are not well taken, because they offer no support for defendant’s contention that Stranahan’s arrest was lawful. The trial court did not err in denying defendant’s motion for a directed verdict on those grounds.

The dissent’s reliance on the United States Supreme Court’s First Amendment case law for its conclusion that Stranahan was violating the criminal trespass statute is puzzling. 153 Or App at 482-85. While this information is interesting from a historical perspective, it does not directly contribute to an analysis of initiative petitioning activity protected under Article IV, section 1, of the Oregon Constitution, and provides no guidance on the interpretation or application of the criminal trespass or false arrest questions presented in this case. The dissent’s reliance on the United States Supreme Court’s takings case law is even more puzzling. 153 Or App at 491. The dissent purports to address Fred Meyer’s central argument, that Stranahan’s arrest was lawful. With no reference to the criminal trespass statute that Fred Meyer claims that Stranahan was violating, the dissent cites several treatises on torts (presumably for the proposition that Stranahan’s conduct could have constituted the common-law tort of trespass) and several federal takings cases, then concludes that those sources support its conclusion that Stranahan was violating an Oregon criminal trespass statute at the time of her arrest. 153 Or App at 491-92. Even if Stranahan’s conduct were tortious — an issue that is not before this court — it simply does not follow that Fred Meyer could arrest her for it. One is subject to arrest for crimes, not torts. Moreover, even if petitioning in shopping centers does implicate Fred Meyer’s constitutional rights under the takings clauses of the state and federal constitutions, but see Whiffen II, 315 Or at 506-08 (rejecting such arguments), it simply does not follow that Fred Meyer could arrest Stranahan, a private citizen, because its constitutional rights were supposedly being violated by the state. If Fred Meyer believed that its property was being taken due to initiative petitioning, it could have initiated an action against the state seeking just compensation. It cannot arrest private citizens who are not violating any criminal statutes. In sum, the main props of the dissent’s argument that Fred Meyer was entitled to a directed verdict simply are insufficient to bear the weight of its conclusion that Stranahan was violating a criminal trespass statute by engaging in initiative petitioning activity outside the Fred Meyer shopping center at issue here.

Fred Meyer also argues that the ruling that Stranahan’s arrest was unlawful violates the equal privileges and immunities provision of Article I, section 20, of the Oregon Constitution, as well as the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.¹³ Fred Meyer cites no case law in support of those contentions, but simply argues that if it may not arrest petitioners such as Stranahan, while its competitors such as Safeway need not allow initiative petitioning, it is being subjected to unequal treatment. But see Safeway, Inc., 141 Or App at 544 (Safeway was not entitled to blanket injunction prohibiting initiative petitioning at all of its stores; whether petitioners had a constitutional right to petition required a store-by-store analysis). Fred Meyer’s argument is not well taken. The law concerning the rights of initiative petitioners to petition in shopping centers is identical whether the shopping center is owned by Fred Meyer, Safeway, or anyone else. The analysis is contingent on the nature of the shopping center itself, not on its ownership. That the law, when applied to the facts, might result in one Fred Meyer shopping center not being able to arrest petitioners for criminal trespass, and one Safeway successfully having petitioners arrested for criminal trespass (or vice versa), does not mean that the law is being applied in an unequal manner, in violation of Article I, section 20, or the Fourteenth Amendment. We reject Fred Meyer’s arguments that failing to direct a verdict in its favor violated Article I, section 20, of the Oregon Constitution, or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Fred Meyer next contends that holding it responsible for Stranahan’s false arrest would violate due process, because the law concerning initiative petitioners’ rights was not entirely clear at the time of Stranahan’s arrest. Fred Meyer contends that it acted in reliance on several trial court rulings enjoining other initiative petitioners, and argues that liability may not be imposed “for an act that the State of Oregon, acting through its court system, had declared to be lawful.” That argument is flawed for several reasons. First, the considerations at play when the question is whether a party is entitled to equitable injunctive relief are quite distinct from the elements of the crime of trespass, as is clear from a comparison of Whiffen I with Dameron. Second, this court rejected a virtually identical argument in the previous appeal in this case:

“Defendant relies on a number of trial court decisions that preceded plaintiffs arrest, including the one that the Supreme Court later reversed in Dameron, to support its position as to what the law was. However, those decisions, insofar as they are contrary to the appellate courts’ later decisions in Cargill and Dameron, are not relevant to what the law was at the time of plaintiffs arrest. The law on October 11,1989, was what the appellate courts later said it was in Cargill and Dameron, the events of which occurred long before October 11, 1989. The earlier trial court decisions can be relevant to what defendant thought the law was. However, that mental state, even if it had been conclusively established, is not a defense to a false arrest action.” Stranahan v. Fred Meyer, Inc., 129 Or App 247, 251, 978 P2d 1123, rev den 320 Or 271 (1994) (emphasis in original; citations omitted).

Fred Meyer’s purported reliance¹⁴ on those trial court decisions does not present a due process problem. Fred Meyer bases its argument on the statement of the United States Supreme Court in BMW of North America v. Gore, 517 US 559, 116 S Ct 1589, 1597, 134 L Ed 2d 809 (1996), that a state could not “punish BMW for conduct that was lawful where it occurred[.]” Fred Meyer, however, has not established that Stranahan’s arrest was lawful where (or when) it occurred. Appellate decisions in the first Whiffen cases certainly put defendant on notice of the legal issues involved. Fred Meyer was a party in the case of Fred Meyer, Inc., 308 Or at 174, which specifically recognized that the constitutional questions concerning initiative petitioning in shopping centers had not been finally resolved. Moreover, as noted above, the arrest at issue here occurred shortly after another initiative petitioner had been acquitted of charges of criminal trespass stemming from petitioning activities at another Fred Meyer shopping center.¹⁵ Also, the arrest at issue here occurred at a time when Fred Meyer knew that the District Attorney’s office would not actually prosecute Stranahan. That in the past Fred Meyer had had some success in obtaining injunctions against certain petitioners does not insulate it from liability for the false arrest of a person who was not bound by any of those injunctions and who was not violating the criminal trespass laws.

We also reject Fred Meyer’s arguments that “retroactive” application of the “new” law announced by the courts in Cargill and Dameron, violates due process. Those cases interpreted no new legislative enactments. They did not overrule prior case law, but rather, built on, and logically flowed from, cases that had been decided before Stranahan’s arrest. The first two Whiffen cases had been decided by the appellate courts at the time of Stranahan’s arrest. Perrin, a vice president of Fred Meyer, testified that Fred Meyer had not reevaluated its policy concerning petitioning in light of the Oregon Supreme Court’s decision in Whiffen I.¹⁶ In 1991, Fred Meyer’s CEO stated that he had no knowledge that Oregon recognized constitutional rights of initiative petitioners, and maintained that Fred Meyer had a right to exclude petitioners. Meanwhile, Fred Meyer was actively litigating injunction cases against initiative petitioners, and was pursuing cases such as Fred Meyer v. Roberts, concerning the nature and scope of the constitutional rights of initiative petitioners, in the Oregon Supreme Court. This is not a situation where Fred Meyer did not have adequate notice that what the initiative petitioners outside their doors were doing might be constitutionally protected.

Fred Meyer next argues that the trial court should have directed a verdict in its favor because no evidence was presented that it arrested Stranahan or instigated her arrest. As noted above, we view the evidence in the light most favorable to the nonmoving party. Sufficient evidence was presented that Fred Meyer’s agent, McClendon, either arrested plaintiff or instigated her arrest. Fred Meyer argues that Parkerson independently exercised his own judgment in deciding to arrest plaintiff after being shown the injunction by McClendon, and, by implication, argues that using the injunction in such a manner was not misleading. We reject those arguments. Viewing the evidence in the light most favorable to Stranahan, it may be inferred from Parkerson’s testimony and the documentation of the arrest that McClendon himself arrested Stranahan. Alternatively, again viewing the evidence in the light most favorable to Stranahan, it may be inferred that McClendon instigated the arrest by showing Parkerson the Marbet injunction and leading Parkerson to believe that Stranahan was violating that injunction. The trial court correctly denied Fred Meyer’s motion for a directed verdict on this issue.

Finally, Fred Meyer argues that the trial court should have directed a verdict for defendant on plaintiffs claim for punitive damages, on the ground that plaintiff failed to present evidence of malice. Again, viewing the evidence in the light most favorable to plaintiff, we hold that the evidence in the record is sufficient to create a jury question concerning punitive damages. Fred Meyer argues, based on authority from other jurisdictions, that it should not be subject to liability because it was relying in good faith on previous court orders, e.g., trial court injunctions that it had obtained against other petitioners. While it is undisputed that Fred Meyer was relying on the Marbet injunction to secure plaintiffs arrest, that reliance need not be seen as “good faith” reliance, particularly in light of the testimony by one of its own vice presidents that using the injunction to cause a police officer to believe that Stranahan was violating the injunction could be misleading. That injunction did not enjoin Stranahan. In particular, the facts surrounding Mc-Clendon’s use of the injunction and Fred Meyer’s knowledge that the Multnomah County District Attorney would not pursue charges against Stranahan for the crime of trespass were sufficient to create a jury question on the issue of punitive damages.

In summary, we reject each of Fred Meyer’s arguments that it was entitled to a directed verdict.

Fred Meyer next contends that the trial court abused its discretion in allowing Stranahan to amend her complaint on the day of trial to increase the claim for damages. Stranahan’s motion to amend was based on information that she gained in the week preceding the trial. Fred Meyer does not assert that it was prejudiced in any way by this amendment. We review the trial court’s decision to allow the amendment for abuse of discretion. Leave to amend shall be “freely given when justice so requires.” ORCP 23 A. A court has “ample discretionary authority to allow amendments, provided the proffered amendment does not substantially change the cause of action or inteiject an entire new element of damage.” Cutsforth v. Kinzua Corp., 267 Or 423, 433, 517 P2d 640 (1973). The amendment at issue did not add any new elements or alter the cause of action. Fred Meyer points to no particular prejudice that it suffered as a result of the amendment. Hagan v. Shore, 140 Or App 393, 398, 915 P2d 435 (1996). We conclude that the trial court did not abuse its discretion in allowing such an amendment on the day of trial.

We next turn to Fred Meyer’s arguments concerning the admissibility of certain evidence. As noted above, evidence was introduced at trial that, some two years after Stranahan’s arrest, another initiative petitioner, Kellie Peterson, was shown a document by Fred Meyer personnel that purported to be a court order regulating petitioning. Fred Meyer argues that the evidence was irrelevant to the present case, as well as prejudicial. The trial court held this evidence to be relevant because it “could lead [the jury] to conclude that Fred Meyer was engaging in a pattern of malicious conduct against individuals who conducted themselves in a manner similar to the plaintiff in this case. And it would bear on the question of punitive damages.” We agree with the trial court that this evidence was relevant for those reasons. In determining the propriety and amount of punitive damages, a jury may consider subsequent similar misconduct on the part of a defendant. Fred Meyer argues that its conduct toward Petersen in 1992 was not similar to its conduct toward Stranahan, because it involved a different initiative petitioner, a different store, and no arrest occurred. However, both occurrences at least arguably involved some misrepresentation of the legal effect of a document shown to a petitioner.

Fred Meyer relies on Vandermeer v. Pacific N.W. Develop., 274 Or 221, 230, 545 P2d 868 (1976), for the proposition that, while evidence of other misconduct toward the plaintiff might be relevant, evidence of conduct involving a third party is not relevant. Vandermeer does not stand for such a sweeping proposition. In Vandermeer, evidence was admitted that the defendant, who had performed a citizen’s arrest on plaintiff and others for failing to leave a recreation room, had on another occasion had one of the same individuals arrested for harassment. That evidence was not relevant, the court concluded, because it was admitted for the purpose of explaining why the person arrested was not a troublemaker. Id. at 234-35. The subsequent conduct at issue in that case was dissimilar to the previous conduct, and the theory of why it might be relevant was obscure, at best. By contrast, the present case concerns Fred Meyer’s actions on two separate occasions toward individuals who were doing the same thing — gathering signatures on initiative petitions. The present case also involves similar conduct on the part of Fred Meyer in allegedly misrepresenting legal documents in an effort to get rid of the initiative petitioners. Because of the similarity between those events, and because subsequent similar conduct is relevant to the question of punitive damages, as discussed below, we are unpersuaded that Vander-meer calls for the exclusion of this evidence.

Fred Meyer also argues that the evidence should have been excluded under OEC 404(3), which prohibits evidence of bad acts “to prove the character of a person in order to show that the person acted in conformity therewith.” That evidence was not offered or received for the purpose of demonstrating that Fred Meyer’s conduct toward Peterson made it any more or less likely that defendant acted toward Stran-ahan in the manner it did. As discussed below, one of the issues the jury was asked to decide concerning punitive damages was “the importance to society in deterring similar misconduct in the future.” Thus, whether Fred Meyer had, in fact, engaged in similar misconduct after the events at issue in the present case was relevant and necessary information for the jury to consider.

We next turn to the question whether the evidence nonetheless should have been excluded as overly prejudicial. OEC 403 provides that relevant evidence “maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” We review for abuse of discretion a trial court’s admission of evidence over an OEC 403 objection. State v. Reyes, 143 Or App 594, 602, 924 P2d 866 (1996). “An abuse of discretion occurs when a court exercises its discretion to an end not justified by and clearly against the evidence and reason.” Lutz v. State, 130 Or App 278, 285, 881 P2d 171 (1994).

Fred Meyer argues that the evidence was overly prejudicial because the jury might not understand that, during Stranahan’s arrest, McClendon’s use of the Marbet injunction was “completely proper,” and that the later representation of the petitioning rules as a court order to Petersen was simply a “mistake” that had caused no harm to Petersen. Certainly it is true that the jury might not (and in fact apparently did not) view the evidence as defendant portrays it. However, the jury was not required to accept Fred Meyer’s explanations of its motives. The question under OEC 403 is whether the evidence at issue is unfairly prejudicial, i.e., whether it would cause the jury to make its decision on an improper basis. We do not find that this evidence would have caused the jury to base its decision on improper factors. We conclude that the trial court did not abuse its discretion in admitting the evidence.

Fred Meyer also contends that the trial court erroneously admitted evidence that it had discontinued numerous community activities in its shopping centers in order to keep courts from ruling that initiative petitioning must be allowed because the shopping centers were functioning as public forums. The evidence in question was presented after Perrin, a vice president of public affairs, had testified without objection that Fred Meyer shopping centers in the past had allowed voter registration and had sponsored food drives. When asked if Fred Meyer had changed its policies concerning such community activities because of the possibility that it might be required to allow petitioning activity, Perrin denied that was the motivation for discontinuing those community activities. At that point, Stranahan introduced evidence that Perrin had testified in a prior proceeding in 1992 that Fred Meyer no longer allowed activities such as voter registration and Campfire sales because of its concern that courts might rule that its shopping centers were functioning as public forums.

Fred Meyer argues that the admission of Perrin’s prior inconsistent statements was erroneous and prejudicial. Fred Meyer also contends that its policies concerning community activities in 1992 are irrelevant to any issues related to Stranahan’s 1989 arrest. The evidence was admissible impeachment evidence under OEC 613(2). Perrin’s testimony in the present case was inconsistent with her prior testimony on the subject. Evidence that Fred Meyer had changed its policies concerning community activities was admitted without objection. Fred Meyer is arguing, in essence, that, despite the fact that its policy on this issue is relevant, inconsistent statements made by one of its vice presidents on the subject are not relevant. The evidence in question was relevant impeachment evidence.¹⁷ See, e.g., State v. Burgess, 145 Or App 334, 338, 930 P2d 869 (1996), rev den 325 Or 80 (1997) (“testimony of prior inconsistent statements by a witness are admissible and relevant for the purposes of impeachment of a witness’ credibility”). The trial court did not err in admitting this evidence.

We next turn to Stranahan’s appeal. As noted, the jury returned a verdict favorable to Stranahan, awarding $125,000 in compensatory and $2 million in punitive damages. Fred Meyer moved for a judgment notwithstanding the verdict,¹⁸ arguing that the punitive damages award should be set aside or reduced.¹⁹ The trial court reduced the punitive damage award to $375,000, or three times the compensatory damages award, stating that “three times the amount of the award of general damages” was “at the highest end of the range of awards” that could be justified in this case.²⁰ Stran-ahan contends that the trial court erred in imposing a requirement that the punitive damage award be proportional to the compensatory damages award.

We agree that punitive damages awards are not evaluated based on a simple formula that compares the ratio of the compensatory damages to the ratio of the punitive damages. The United States Supreme Court has stated that punitive damages must bear a “reasonable relationship” to compensatory damages. BMW of North America, Inc., 517 US at 580, 116 S Ct at 1601 (1996). The Court also has indicated that there should be a “reasonable relationship” between the punitive damages award and the harm that is likely to result from a defendant’s conduct, as well as the harm that actually resulted. Id. Thus, a punitive damages award 20 times the compensatory damage award might be proper in one case, but a punitive damages award twice the compensatory damages award might be excessive in another case. The Court also has indicated that a higher ratio might “be justified in cases in which * * * the monetary value of noneconomic harm might have been difficult to determine.” Id.

Oregon courts evaluate punitive damage awards by juries based on the following standard:

“Was the award of punitive damages within the range that a rational juror would be entitled to award in the light of the record as a whole? The range that a rational juror is entitled to award depends, in turn, on the statutory and common law factors that the jury is instructed and permitted to consider when awarding punitive damages for a given claim.”

Oberg v. Honda Motor Co., 320 Or 544, 551, 888 P2d 8 (1995).²¹

In the present case, the jury was instructed as follows:

“Now, to recover punitive damages, Plaintiff has additionally alleged and must prove in this case by clear and convincing evidence, not just by a preponderance of the evidence but by clear and convincing evidence, that in intentionally initiating or causing Plaintiffs arrest that the Defendant Fred Meyer acted wantonly, that is, acted with a particularly aggravated deliberate disregard of the rights of Plaintiff.

"* * * *

“Now, punitive damages may be awarded to the plaintiff, in addition to compensatory or actual damages, to punish a wrongdoer and to discourage the defendant and others from engaging in wanton conduct. If you found that the plaintiff is entitled to damages then you must consider whether to award punitive damages.

“In considering punitive damages you must first determine whether Fred Meyer was guilty of wanton misconduct that caused damage to the plaintiff. Wanton misconduct is conduct amounting to a particularly aggravated, deliberate disregard of the rights of others. In order to recover punitive damages the plaintiff must prove that Fred Meyer engaged in such conduct by clear and convincing evidence, that is evidence that enables you to find that the truth of the facts asserted is highly probable.

“If you decide to award punitive damages you may properly consider the following items in fixing the amount. The character of Fred Meyer’s conduct, Fred Meyer’s motive, the sum of money that would be required to discourage Fred Meyer and others from engaging in such conduct in the future, and the income and assets of Fred Meyer.

“If you decide this issue against Fred Meyer you may award punitive damages although you are not required to do so because punitive damages are discretionary. In the exercise of that discretion you may consider the importance to society in deterring similar misconduct in the future. The amount of punitive damages may not exceed the sum of $2,000,000 on plaintiffs false imprisonment claim.

“If you find that Fred Meyer had a good faith belief that it had a legal right to treat plaintiff as a trespasser then you may not award punitive damages to plaintiff.”

Thus, by awarding punitive damages, the jury necessarily made a factual finding that Fred Meyer did not have a good faith belief that Stranahan was violating the criminal trespass law at the time it arrested her. We turn to the criteria that the jury was instructed to consider in evaluating Fred Meyer’s conduct.

The first of these is the “character of Fred Meyer’s conduct.” The conduct — the arrest — occurred after several appellate courts had concluded that shopping centers did not have unlimited rights to remove initiative petitioners from their property. The arrest occurred at a time when Fred Meyer had reason to know that the prosecutor would decline to prosecute the alleged offense. Moreover, Fred Meyer’s agent used an injunction that did not enjoin Stranahan in a manner that led a police officer to believe that Stranahan was violating that injunction. The jury reasonably could conclude that Fred Meyer acted in wanton disregard of Strana-han’s rights at the time of the arrest. Evidence also demonstrated that Stranahan’s arrest was not an isolated event. Other petitioners were subjected to similar treatment, i.e., they were arrested but not prosecuted. Evidence was presented not only that Fred Meyer used the Marbet injunction in 1989 and 1990 against petitioners who were not bound by that injunction, but that in 1992 Fred Meyer presented a petitioner with a set of petitioning rides that purported to be court ordered, but was not.

The next criterion that the jury was instructed to consider was Fred Meyer’s motive in having Stranahan arrested. Fred Meyer correctly points out that there was no evidence that it was motivated by animosity toward Strana-han personally. However, that does not mean that there was nothing for the jury to consider in this regard. It is clear that Fred Meyer was motivated by a desire to prevent all petitioning at all of its shopping centers. The jury was required to evaluate that motive in light of the fact that several appellate courts had recognized at the time of Stranahan’s arrest that important political rights were at stake where initiative petitioning was concerned, and that prohibitions of initiative petitioning at shopping centers would not necessarily be upheld. In terms of motive, the jury also could consider the contradictory testimony and evidence as to what Fred Meyer’s policies toward initiative petitioners actually were. Fred Meyer’s witnesses in the present proceeding maintained that it had a policy not to arrest initiative petitioners. That testimony was rebutted by evidence that, in other proceedings, Fred Meyer had acknowledged that it was its policy to arrest initiative petitioners. That evidence too was relevant to the jury’s consideration as to whether Fred Meyer acted in wanton disregard of Stranahan’s rights as an initiative petitioner.

The jury was next asked to consider the amount of money that would be required to discourage Fred Meyer and others from engaging in similar conduct in the future, taking into account defendant’s income and assets. Fred Meyer has not argued that $2 million is unreasonably excessive in light of its income and assets.

The trial court concluded that a $2 million punitive damage award would violate due process because it would “disproportionately punish[ ] the defendant in relation to other wrongdoers.” However, no evidence was presented that any other shopping centers had instigated arrests of initiative petitioners. (It also bears noting that the only two appellate cases concerning criminal trespass charges against initiative petitioners, Dameron and Cargill, involved Fred Meyer shopping centers.) We are not persuaded that the trial court should have reduced the punitive damages award on that ground.

As noted above, the jury was instructed to consider the importance of deterring similar misconduct in the future. Evidence demonstrated that Fred Meyer’s arrest of Stranahan was not an isolated event but was part of an ongoing attempt to discourage and prevent initiative petitioning at its shopping centers. The initiative process, however, is an integral part of the Oregon political process, and initiative petitioning is an important constitutional right. As the Oregon Supreme Court has noted, the process of gathering signatures on initiative petitions “is a form of political speech.” Whiffen I, 307 Or at 684; see also Meyer v. Grant, 486 US 414, 422, 108 S Ct 1886, 100 L Ed 2d 425 (1988) (describing initiative petitioning as “core political speech”). Stranahan was not only falsely arrested while she was exercising that constitutional right, but she was arrested because she was exercising that constitutional right. As the Supreme Court has stated, the ratio of punitive damages to compensatory damages may be greater if “the monetary value of noneconomic harm [is] difficult to determine.” BMW of North America, 517 US at 582, 116 S Ct at 1602. It is indeed difficult to determine the monetary value of a noneconomic harm such as infringement on a constitutional right to engage in the type of political activity at issue here. However, the harm at issue certainly is not de minimis. Arrests in the course of, and because of, constitutionally protected political activity such as initiative petitioning certainly may have a chilling effect on the exercise of the constitutional right involved. Such a chilling effect extends beyond the plaintiff in this case, to every Oregonian who has a right to engage in such protected activity.

In this case, the punitive damages awarded by the jury were 16 times greater than the compensatory damages. The economic harms — the compensatory damages — were not great. The noneconomic harms, to Stranahan’s right to participate in the Oregon political process in a manner guaranteed by the Oregon Constitution, were much greater. Given the importance of the right involved, we are unable to say that the jury’s award of punitive damages 16 times greater than the relatively small compensatory damage award was not “within the range that a rational juror would be entitled to award in light of the record as a whole.” Oberg, 320 Or at 551.

Reversed on appeal and remanded with instructions to reinstate the jury’s verdict; affirmed on cross-appeal.

1 Although McClendon claimed that a written policy existed, Fred Meyer was unable to produce any written policy in this litigation. A vice president of Fred Meyer who was one of McClendon’s supervisors, John Velke, testified that he was not aware of any such written instructions. However, he was impeached with a prior statement that he believed that “there were written instructions about what to do in the event petitioners came on our property, and that included the aspects of the injunctions, what to do with the injunctions.”

2 McClendon stated during a deposition that he had never arrested an initiative petitioner, and had never signed any documents indicating that he was arresting a petitioner. However, evidence was introduced at trial that, fewer than two weeks after Stranahan’s arrest, McClendon signed a custody report concerning the arrest of another initiative petitioner, Kellie Petersen, that stated: “I have arrested the defendant for the charges listed.”

3 Holenstein and Stranahan were among the six defendants in State v. Cargill, 100 Or App 336, 786 P2d 208 (1990), aff'd by an equally divided court 316 Or 492 (1993), discussed below.

4 In a deposition given in 1991, the Chairman of the Board and Chief Executive Officer of Fred Meyer, Bob Miller, stated that he had no knowledge of any Oregon law that recognized the constitutional rights of petitioners, and that he believed that Fred Meyer had a right to exclude petitioners from its properties. The current Chief Executive Officer, Cyril Green, testified that Fred Meyer still has a policy against petitioning at any of its shopping centers.

5 Article I, section 8, of the Oregon Constitution, provides:

“No law shall be passed restraining free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

6 Article IV, section 1, of the Oregon Constitution, concerns the process by which voters may initiate laws and constitutional amendments.

7 ORS 164.205 provides the operative definition governing second-degree criminal trespass: “To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge.”

8 State v. Dameron, 316 Or 448, 853 P2d 1285 (1993), followed a similar analysis.

9 Some of the procedural background of this case is discussed in Stranahan v. Fred Meyer, Inc., 129 Or App 247, 878 P2d 1123, rev den 320 Or 271 (1994).

10 We do not pretend that the criteria set forth in our previous cases are easy to apply. The list of factors to be taken into consideration is nonexclusive, and it is not easy to discern a unifying theme from the case law that gives sufficient guidance as to what shopping centers are of the sort at which petitioners may exercise their constitutional rights.

11 In PruneYard, the Court considered whether a state constitutional provision that allowed individuals to engage in petitioning activity at a privately owned shopping center violated its owner’s property rights under the Fifth Amendment. The Court noted that “a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.” 447 US at 81. Whether a violation of the Takings Clause had occurred depended on “such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations.” Id. at 82-83 (citations omitted). The Court concluded that a requirement that individuals be allowed to exercise state-protected rights to petition on shopping center property “clearly” was not an unconstitutional infringement on the property rights of the shopping center’s owner. Id. at 83. The activities in question would not unreasonably impair the value or use of the property as a shopping center, and time, place and manner restrictions would minimize any interference with the shopping center’s commercial functions. Id.; see also Whiffen II, 315 Or at 504-06 (following PruneYard analysis). The Court also rejected the shopping center’s First Amendment claims, noting that the shopping center could expressly disavow any connection with the petitioning activity by the simple expedient of posting signs disclaiming sponsorship of the message and indicating that the petitioners were there by virtue of state law. 447 US at 87; see also Whiffen II, 315 Or at 508 (following PruneYard analysis on free speech issue).

12 Property rights may be vindicated through civil actions at law for the tort of trespass, actions for declaratory and injunctive relief, and similar proceedings.

13 Article I, section 20, of the Oregon Constitution, provides: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

The Fourteenth Amendment to the United States Constitution provides, in part: “[N]or shall any State * * * deny to any person within its jurisdiction the equal protection of the laws.”

14 The jury was instructed: “If you find that Fred Meyer had a good faith belief that it had a legal right to treat plaintiff as a trespasser then you may not award punitive damages to plaintiff.” The jury awarded plaintiff $2 million in punitive damages.

15 As noted above, Stranahan had with her at the time of her arrest a newspaper article concerning that court ruling. The article stated that the “ruling was being examined by Fred Meyer attorneys.”

16 Of course, there was conflicting evidence of what that policy was. In this case, various witnesses testified that Fred Meyer had a policy against arresting petitioners. That evidence was rebutted by evidence that Fred Meyer did have a policy of arresting petitioners and by evidence that a number of arrests had occurred.

17 Defendant also argues that this evidence should have been excluded as unduly prejudicial under OEC 403. Defendant did not make that argument to the trial court, and we will not consider it in the first instance on appeal. ORAP 5.45(2).

18 ORS 18.537 now provides procedures for reviewing punitive damages awards:

“(1) Punitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.

“(2) If an award of punitive damages is made by a jury, the court shall review the award to determine whether the award is within the range of damages that a rational juror would be entitled to award based on the record as a whole, viewing the statutory and common-law factors that allow an award of punitive damages for the specific type of claim at issue in the proceeding.

“(3) In addition to any reduction that may be made under subsection (2) of this section, upon the motion of a defendant the court may reduce the amount of any judgment requiring the payment of punitive damages entered against the defendant if the defendant establishes that the defendant has taken remedial measures that are reasonable under the circumstances to prevent reoccurrence of the conduct that gave rise to the claim for punitive damages. In reducing awards of punitive damages under the provisions of this subsection, the court shall consider the amount of any previous judgment for punitive damages entered against the same defendant for the same conduct giving rise to a claim for punitive damages.”

That statute, however, was not in effect at the time of the trial in this case.

19 Plaintiff contends that defendant did not adequately raise the issue whether the punitive damage award should be reduced. We disagree. The rationale behind preservation of error rules is to give parties the opportunity to present their positions, and to give the trial court the opportunity to consider the issue. See generally State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988). The parties made an extensive record on this issue, and the trial court considered their arguments. The issue is sufficiently preserved.

20 The trial court offered no explanation of how it arrived at the conclusion that three times the compensatory damages award was an appropriate formula.

21 Defendant suggests that this court adopt an abuse of discretion standard of review as to whether a trial court properly reduced a punitive damages award. That standard of review does not comport with the Oregon Supreme Court’s approach to this issue in Oberg: “We are in as good a position as would be the trial court to apply a legal standard to the evidence in the record.” Oberg, 320 Or at 552.