Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

Michael Millen Attorney at Law (#151731) 119 Calle Marguerita Ste. 100 Los Gatos, CA 95032 Telephone: (408) 871-0777 Fax: (408) 516-9861 mikemillen@aol.com Catherine Short, Esq. (#117442) Life Legal Defense Foundation PO Box 1313 Ojai, CA 93024 (805) 640-1940 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA WALTER B. HOYE, II, Plaintiff, v. CITY OF OAKLAND, Defendant. Date: Dec. 16, 2011 Time: 10:00 AM Judge: Hon. Charles Breyer Crtm: 8 NO.: C07-06411 CRB PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERMANENT INJUNCTION

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page2 of 8

1 2 3 4

ARGUMENT I. THE CITYS CONSTANTLY SHIFTING INTERPRETATIONS OF THE ORDINANCE MAKE IT IMPOSSIBLE FOR THIS COURT TO ENSURE COMPLIANCE WITH THE NINTH CIRCUITS MANDATE The City has done it again. It has come up with yet another interpretation of the

Ordinance, this time one that both contradicts its past statements and is nonsensical.
6

The City claims that it never meant that doctors, nurses, and clinic employees
7

(hereinafter clinic personnel) were exempt from the Ordinance, but only that clinic
8

personnel, unlike escorts, were permitted under the Ordinance to approach patients without
9

consent if necessary to provide medical care (for example, if a patient approaching the
10

clinic had a heart attack or fainted and needed immediate attention). City Opp. at 6:12-17.
11

This latest interpretation flies in the face of the Citys past statements as well as
12

commonsense.
13

First, on Oct. 12, 2011, when the City sent its first draft of the revised training
14

materials, the training video script forthrightly stated that the law applied to anyone who is
15

not a doctor, nurse, or other employee of a health care facility. Decl. Of Michael Millen In
16

Support Of Amended Req. For Permanent Injunction, 2 and Ex. 1.) There was not the
17

slightest indication this exemption was limited to medical emergencies.

18

When Plaintiff objected that this exemption for clinic personnel was not in keeping
19

with the Ninth Circuits mandate, the City responded by forcefully defending the exemption
20

in the Joint Case Management Conference statement (JCMS) filed two days later on Oct.
21

14. Under the Citys enforcement policy, clinic personnel have always been permitted to
22

deal[] with patients seeking entry to the clinic, because the patients, by seeking health
23

services, have consented to speak with [clinic personnel] on any subject relevant to their
24

health concerns. JCMS at 3:12-15. The Ordinance is designed to ensure that women can
25

receive the services they seek from doctors, nurses, and clinic staff all of whom need to
26

communicate with them to provide those services. Id. at 21-23. The professionals are
27

providing consented-to health services (including speaking to women about those services) .
28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Page 1

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

. . Id. at 27-28. The Court could not have meant that doctors would be foreclosed from doing their jobs and providing the services the Ordinance was designed to protect. Id. at 4:4-5. In sum, there is hardly a sentence on this issue in the JCMS that does not contradict the Citys latest position. The Citys position in the JCMS was unambiguous: clinic personnel are allowed to approach women seeking to enter the clinic without obtaining consent on the scene because the women are presumed to have previously consented to be approached. However, while vigorously defending the blanket exemption in the JCMS, the City deleted the overt exemption language from its proposed video script submitted to this Court. Thus, the City rewrote the script to state that escorts are not exempt from Ordinance, but remained silent on the status of clinic personnel. In doing so, the City acted like a builder who, being caught moving a boundary marker, cheerfully replaces the marker and then builds on the wrong side of the line anyway. As this Court and the Ninth Circuit know from the history of this litigation, the fact that an exemption is not spelled out in the Citys training materials does not mean it isnt there. The exemption for escorts and their facilitating speech was not in the training materials, yet it existed in both policy and practice. The revised training materials explicitly declare a change from the previous enforcement policy of exempting escorts (Citys Supplemental Submission of Revised Training Materials, Ex. B2, p. 1 (Docket #197-4, filed 10/18/2011)) but nowhere disclaim the possibility of other unwritten exemptions. In the JCMS the City stated that it was only changing its enforcement policy insofar as necessary to comply with the Ninth Circuits decision which it reads as affecting only the exemption for escorts. Id. at 3:10-12; 4:1-3. Thus the City, having been stymied in its attempt to exempt clinic-friendly escorts from the reach of the Ordinance, now seeks to secure an exemption for official clinic personnel. It appears that the City intends to follow

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Page 2

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page4 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

the Ninth Circuits evenhanded enforcement command only in regard to escorts, leaving it free to exempt other speakers as it desires. In the face of Plaintiffs motion for permanent injunction, the City decided on yet another strategy: recast, at least temporarily, its latest exemption as being both rare and necessitous. Thus, the City now asks the Court to find that the Citys unwritten exemption allowing clinic personnel to violate the Ordinance with impunity is actually just a method to allow doctors to administer CPR and other life saving procedures on the sidewalk or street in front of the clinic. The Citys belated scramble to justify the unjustifiable raises more questions than it answers. The City explains that medically necessary approaches by medical professionals1 to patients needing immediate care are different from approaches for the purpose of counseling, harassing or interfering and would not be covered by the Ordinance. City Opp. at 6:11-22 and n.2 (emphasis added). First, it is instructive to note that the City is hallowing certain speech (that which accompanies a medical necessity) and declaring that those who engage in the speech are immune from prosecution. While exempting speech necessary to accomplish a life saving procedures may or may not pass a content-based, strict scrutiny test, the Citys attempt here is fraught with problems. First, this morphing exemption is not actually written anywhere except in legal briefing, so it is highly subject to change on an ad hoc basis. Second, it makes no sense that this exemption applies to the clinic receptionist, bookkeeper, and paid clinic escorts but does not apply to Plaintiff and other passers-by. One can imagine that the City will shortly declare that protecting the mental health of clinic patients is so important that this clinic personnel exemption will be extended to allow clinic personnel to directly approach patients

Apparently the Citys definition of medical professional includes anyone who is employed by an abortion clinic, whether or not the person is licensed to provide medical care. The receptionist qualifies.
1

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Page 3

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page5 of 8

1 2 3 4 5 6 7 8 9 10 11 12

and engage in any conversation which is sufficiently soothing so as to relieve mental distress. The Citys vigorous reframing and defense of an exemption which exists only sub silentio confirms what Plaintiff set out in his moving papers: neither this Court nor Plaintiff has any reasonable assurance that the City will enforce the Ordinance as the Ninth Circuit directed, i.e., as written and in an evenhanded, constitutional manner. Indeed, the City is tying itself in a knot in its efforts to avoid complying with the Courts simple mandate. The appropriate remedy is a permanent injunction against enforcement of the Ordinance.

II. THE CLINICS PROPOSED POLICY DOES NOT OBVIATE THE NEED FOR INJUNCTIVE RELIEF. The City argues that injunctive relief is not necessary because one Oakland abortion provider is apparently adopting new procedures requiring any woman coming

13

to the clinic to provide advance consent to be approached by clinic escorts and

14

personnel. Unless she gives consent to be approached by escorts and other clinic
15

personnel on the sidewalk, the woman will not be given an appointment. Thus, in an
16

attempt to save an Ordinance that was passed purportedly to ensure access to

17

reproductive health care services critically and uniquely important to public health,
18

safety, and welfare,2 the City is colluding with a provider of these services to restrict
19

access to such services.

20

This solution to the enforcement problem simply raises more problems. First,
21

the evidence of the new clinic policy provided by the City provided is inadmissible.
22

See Plaintiffs Objection To Evidence In Defendants Opposition To Req. For

23

Permanent Injunction.
24

Second, even if the City could present admissible evidence of one private
25

clinics current procedures, nothing prevents that clinic from changing its procedures
26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

See second paragraph of preamble to Ordinance (Docket #10, p. 3, filed Jan. 16, 2008).
2

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Page 4

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page6 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

next week or next month. The clinic is not a party to these proceedings and is under no obligation to keep the City or this Court apprised of its procedures. Third, the City proposes to instruct its police officers that all escorts and clinic personnel of this particular abortion clinic have blanket consent and therefore are in compliance with the law. City Opp. at 4:23 5:9. The City is thus taking a private business entity at its word that its employees and agents are not breaking the law and proposes to instruct its enforcement personnel not to take any steps to enforce the law against the employees and agents of this business. This is like saying that because the Fire Marshall has faith that the proprietor of Fox Theater would never exceed maximum seating capacity, Fox Theater is declared exempt from the yearly fire inspection. Thus, while the FPS clinic will be free of worrying about police inspections of escort speech, the police will continue to inspect Mr. Hoyes speech. Such favoritism mocks the spirit of the Ninth Circuits demand of evenhanded enforcement. Fourth, the script that the clinic proposes to use does not track the language of the Ordinance in terms of what patients are consenting to. The proposed clinic script asks if the patient consents to be approached to help you into the clinic. This language could mean, e.g., pressing a code that unlocks the front door of the clinic, or summoning an elevator. It does not convey the meaning of what the Ordinance requires consent for: approaching for the purpose of counseling, harassing, or interfering with such person. Fifth, neither the City nor the clinic explains how this advance consent procedure will work when a woman and her female companion approach the clinic together (a scenario frequently seen in the videos Plaintiff placed in evidence). Of these two people, one has give consent to be approached and the other has not. Thus, the escort will of necessity be approaching within 8 feet of a person seeking to enter the clinic, without that persons consent, for the purpose of communicating with that PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.
C07-06411 CRB

Page 5

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page7 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

person, if only to determine whether this is the person who is seeking the abortion and has given consent (a curious conversation to be having on a public sidewalk when supposedly trying to protect their privacy: Which of you ladies has the abortion appointment?) Finally, if Plaintiff conducts his speech activity at other abortion clinics in Oakland, the consent issue remains. The Citys solution is no solution at all. It simply highlights, once again, the Citys unwavering determination that Mr. Hoye not be allowed the same opportunity to communicate with patients afforded to the Citys favored speakers.

III. PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF BASED ON THE CITYS ENFORCEMENT POLICY AGAINST STATIONARY SPEAKERS. The City continues to maintain, in the face of the Ninth Circuits order affirm[ing] the District Courts holding that the Ordinance is facially valid, but revers[ing] the remainder of its ruling, that the Ninth Circuits decision left this Courts ruling on the approach issue untouched. This is simply untrue given that this Courts analysis of the approach issue is contained in the now reversed portion of its ruling. The City does not point to anything specific in the Ninth Circuits order mentioning the approach issue but instead believes that the issue was indirectly put to rest somewhere in the spirit of the Ninth Circuits opinion. However, the better view is that reverse means reverse and that it is appropriate for this Court to review the issue in keeping with its charge by the Ninth Circuit to determin[e] appropriate relief. The City states that Plaintiff is just as much approaching a woman by thrusting his arm in her face as he would be if he walked close to her. City Opp. at 6: 4-5. Again, this is not true. The key word, and the gravamen of an offense under the Ordinance, is approach. A stationary speaker is not approaching a woman. While PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.
C07-06411 CRB

Page 6

Case3:07-cv-06411-CRB Document205

Filed12/02/11 Page8 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Michael Millen, Esq. 119 Calle Marguerita #100 Los Gatos, CA 95032 (408) 871-0777

the City might wish to equate the word approach with disturb or bother, the words are not the same, and only the former is prohibited under the Ordinance. The Supreme Court in Hill v. Colorado upheld the restriction as narrowly tailored and leaving open ample alternative channels of communication because it restricted only physical approaches and did not affect stationary speakers. See Plaintiffs Supplemental Brief re Approach at 2:7 3:7. The Citys enforcement of the Ordinance against stationary speakers who extend an arm to proffer a leaflet renders the Ordinance unconstitutional as applied.

CONCLUSION Despite repeated chances to formulate a policy of evenhanded, viewpoint and content neutral enforcement, the City is once again attempting to evade the requirements of the First Amendment. There is no way for this Court or plaintiff to know what other unwritten exemptions the City may purport to believe the Ordinance has for certain speech or for certain speakers or on some other hitherto unrevealed grounds. This Court should enjoin the City from enforcing Oakland Municipal Code 8.52.030(b).

Dated: December 2, 2011 MICHAEL MILLEN, ESQ.

PLAINTIFFS REPLY BRIEF IN SUPPORT OF AMENDED REQ. FOR PERM. INJ.

C07-06411 CRB

Page 7