On December 19, 2007, plaintiff, a minister who attempts to persuade women seeking an abortion in front of an abortion facility, filed this lawsuit against the City of Oakland under 42 U.S.C. § 1983 in the United States District Court for the Northern District of California, San Jose Division. The plaintiff, represented by private counsel and the Life Legal Defense Foundation, asked the court for declaratory and injunctive relief as well as damages, claiming that the defendant's ordinance regulating conduct in front of women's healthcare facilities is unconstitutional on its face and as applied to the plaintiff.
Specifically, the plaintiff claimed that the ordinance making it unlawful, within 100 feet of the entrance of a "reproductive health care facility," to "willfully and knowingly approach within eight feet of any person seeking to enter such a facility… without the consent of such person… for the purpose of counseling, harassing, or interfering with such person…" was not being enforced in an even-handed manner. Under the ordinance, the term "counseling" is defined as "engaging in conversation with, displaying signs to, and/or distributing literature." However, the plaintiff alleged that the City had a policy of not enforcing its ordinance against those individuals engaging in pro-choice speech outside of the women's healthcare facilities, while the City enforced the ordinance prohibiting counseling against those whose speech contained anti-abortion content.
On August 4, 2009, District Court Judge Charles Breyer granted summary judgment in favor of the City. In response to the plaintiff's facial challenge to the ordinance, the district court held that its language was nearly identical to the statute upheld by the Supreme Court in Hill v. Colorado
. The district court wrote that "as in Hill, the Ordinance applies 'equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.' And, as in Hill, 'the State's interest in protecting access . . . [is] unrelated to the content of the demonstrators' speech.'" In response to the plaintiff's as applied challenge, the district court found that the defendant was not failing to enforce the ordinance by allowing escorts who facilitate access to the reproductive health facilities to approach patients seeking care while disallowing the plaintiff to approach the patients any closer than 8 feet. The district court wrote that, "escorts who approach women for the purpose of facilitating their access into a clinic are not approaching 'for the purpose of counseling, harassing, or interfering.'" Hoye v. City of Oakland, 642 F.Supp.2d 1029 (N.D. Cal. 2009). Plaintiff appealed.
On July 28, 2011, Judge Marsha Berzon of the United States Court of Appeals for the Ninth Circuit wrote for the court affirming in part and reversing in part the district court's decision. The circuit court agreed that the ordinance was constitutional on its face, but that the defendant was applying the ordinance in an unconstitutional manner. The circuit court found that the City's police department was enforcing the statute against "efforts to persuade women approaching reproductive health clinics not to receive abortions or other reproductive health services, and not to communications seeking to encourage entry into the clinic for the purpose of undergoing treatment." That is, the police department did not require the "escorts" to receive consent to speak to women seeking to enter the clinics, while it did require anti-abortion protestors to receive such consent. The circuit court remanded the case with instructions to grant plaintiff's motion for summary judgment in part and grant him relief consistent with the opinion. 653 F.3d 835 (9th Cir. 2011).
Following this ruling, the City issued new police training materials that were meant to educate officers as to the neutral application of the ordinance. On December 16, 2011 District Court Judge Breyer ruled that these training materials were adequate to grant the plaintiff relief consistent with the Ninth Circuit's opinion. The district court noted that if the police officers enforced the ordinance in a way that was inconsistent with the training materials, the plaintiff may revive his case. On May 31, 2012, plaintiff filed a motion for entry of judgment with proposed language for a three part order. Judge Breyer entered judgment on August 3, 2012, holding that: the City's policy of exempting speech facilitating access violated the First Amendment, that the City must enforce the ordinance in an evenhanded manner, and that the ordinance was constitutional on its face.
On October 1, 2012, Judge Breyer awarded plaintiff legal fees to the amount of $361,269.43. 2012 WL 4644307 (N.D. Cal. Oct. 1, 2012).Justin Benson - 10/09/2011
Richard Jolly - 10/13/2014