Abortion Foe Complains of Selective Prosecution by California

David Daleiden, an anti-abortion activist charged with invasion of privacy for filming attendees at National Abortion Federation conferences in California.

LOS ANGELES (CN) — Anti-abortion activist David Daleiden, who disguised himself as a purveyor of human tissue for medical research in order to secretly tape abortion providers, claims in a federal lawsuit filed Wednesday that his undercover journalism, along with his anti-abortion views, made him an undeserving target of the California Department of Justice.

“This complaint seeks justice for a brazen, unprecedented, and ongoing conspiracy to selectively use California’s video recording laws as a political weapon to silence disfavored speech,” Daleiden says in his complaint.

The lawsuit was born out of a preliminary hearing in which San Francisco Superior Court Judge Christopher Hite found enough evidence to order a jury trial for Daleiden and his associate Sandra Merritt. 

The pair were arraigned in February on nine counts of criminal eavesdropping and conspiring to invade the privacy of abortion providers at an industry conference in 2014 and at a Pasadena, California, restaurant. The case began with 15 counts after then-Attorney General Kamala Harris launched an investigation into Daleiden and Merritt, who had published their covert videos on YouTube in 2015.

Hite dismissed four of the charges connected to two meetings, one with a Planned Parenthood doctor and another with representatives of stem cell company StemExpress. Hite found the four people recorded there “didn’t have an objectively responsible expectation that their conversations would not be overheard.” He also dismissed one charge resulting from a recording made in an elevator at the Westin St. Francis hotel in San Francisco where the National Abortion Federation held its 2014 conference.

But he allowed two counts based on one meeting with two Planned Parenthood doctors at AKA Bistro in Pasadena to go forward, finding “sufficient evidence of a more private setting.” Hite noted the restaurant “was basically empty” when Daleiden and Merritt met the two women for lunch, and that any view of the conversation would have been obscured by the high-backed structure of the booth.

Daleiden says the justice department’s true intentions were exposed during the preliminary hearing last year, which stretched from Sept. 3-18. Just before the hearing, Daleiden filed a motion to dismiss the case as unconstitutional, as he and Merritt were acting as “undercover journalists” whose activities are shielded by the First Amendment from California laws that prohibit recording confidential communications.

“In response, on Aug. 31, 2018, defendant Xavier Becerra, through [Deputy Attorney General Johnette] Jauron, admitted for the first time in public that he was prosecuting plaintiffs because ‘several of those recordings were edited to enhance their shock value, and published online,’ and ‘as a result of the above, defendants are culpable to a greater extent’ than other journalists,” the federal complaint says. “This was the first time Mr. Daleiden had notice from the Attorney General’s office of the true purpose of the prosecution.”

In September, Hite declined to dismiss the criminal case or quash the search warrant for Daleiden’s home, finding “there was sufficient probable cause in the warrant that Daleiden was engaged in criminal activity irrespective of his journalistic status and that the items seized were related to the criminal activity.”

But Daleiden believes the investigation was made in bad faith, noting in his lawsuit that his attorneys sought notes and recordings made by Justice Department special agents to support their investigation back in 2018. “On information and belief, one or more of the notes, recordings, and other memorialization of the Bureau of Investigation’s work on this case were destroyed in order to cover up the co-conspirator defendants’ violation of plaintiffs’ civil rights,” the complaint says. 

Daleiden’s lawsuit seeks a court order barring the state from enforcing its eavesdropping laws against him, and a declaration that any prosecution violates his free speech, equal protection, and due process rights. He’s also seeking compensatory and punitive damages.

The lawsuit names Harris as a defendant along with Becerra — the current attorney general — Planned Parenthood, the National Abortion Federation, StemExpress,  and special agents for the California Department of Justice, and Jill Habig, former Special Assistant Attorney General.

Federal courts usually abstain from adjudicating disputes while criminal proceedings are still ongoing in state court, but Daleiden claims no deference is warranted here since the prosecution was brought in bad faith.

Daleiden is represented by Harmeet Dhillon of Dhillon Law Group in San Francisco. 

In a statement, Dhillon said state law enforcement officials acted beyond their authority at the behest of pro-abortion special interests. “Our federal civil rights statutes were enacted in the wake of the darkest periods in our nation’s history,” she said. “They are well-suited for the current civil rights crisis we face, a time when powerful politicians allow their special interest patrons to custom-order prosecutions that violate fundamental constitutional rights, and do so even with the knowledge that their actions are ultra vires.”

Becerra’s office did not respond to an email seeking comment Wednesday.

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