Abortion Foe’s Retaliation Suit Against California Unlikely to Advance

A federal judge said he thinks most claims in a retaliation suit against California and abortion provider groups should be stayed pending decisions on overlapping issues in a state court criminal case and Ninth Circuit appeal.

SAN FRANCISCO (CN) — A federal judge signaled Wednesday that he is unlikely to advance a lawsuit claiming abortion industry groups conspired with the state of California to selectively prosecute an anti-abortion activist for secretly recording conversations with abortion providers.

David Daleiden sued former California Attorney General Xavier Becerra, trade group National Abortion Federation, Planned Parenthood Federation of America and its California affiliates in May last year. He claims Planned Parenthood and its allies “met in secret” with former Attorney General Kamala Harris in 2015 to “silence” his journalistic speech.

Daleiden and members his group, Center for Medical Progress, used fake names and IDs to infiltrate abortion industry meetings in 2013 and 2014. The center released edited videos of secretly taped conversations with abortion providers in July 2015 as part of a “Human Capital Project.”

Daleiden says the operation was an act of undercover journalism aimed at exposing the illegal sale of fetal tissue for profit. Planned Parenthood denies it profited from providing fetal tissue for research and has never been charged with a crime related to its fetal tissue donation program.

But Daleiden and his colleague, Sandra Merritt, were charged with crimes. The pair was arraigned last year on nine counts of criminal eavesdropping and conspiracy to invade privacy. The National Abortion Federation and Planned Parenthood also sued Daleiden in federal court and obtained judgments requiring him not to release the content of secret recordings. In 2019, a jury awarded Planned Parenthood $2 million in damages in its lawsuit against Daleiden. He and his colleagues were also ordered to pay Planned Parenthood and its affiliates $13.6 million in legal fees.

In a virtual courtroom Wednesday, U.S. District Judge William Orrick, a Barack Obama appointee, said he is leaning toward staying most claims in the case because many issues presented in the lawsuit are still under review in San Francisco County criminal court and in a Ninth Circuit appeal of the Planned Parenthood jury verdict.

“It does make sense to me that a good portion of this case, if not the whole thing, ought to be stayed until we know what’s going to happen in the Ninth Circuit and the criminal case,” Orrick said.

Lawyers for the state of California argued that prosecutorial immunity prevents Daleiden from suing the state Attorney General’s office for selective prosecution.

Daleiden’s attorneys argued they could amend their lawsuit to add more specific allegations about biased and retaliatory motives in the investigation leading up to the prosecution, but California Deputy AG Vickie Whitney said that would be akin to “rewriting history.”

“They can’t simply rewrite history now and call it something other than what they’ve named it in the third claim — invidious and selective prosecution,” Whitney said.

Representing Planned Parenthood Federation of America, attorney Oscar Ramallo said claims against his client should also be dismissed because it can’t be held liable for asking the government to go after criminals.

“Private parties have a right to petition the government to enforce the laws,” Ramallo said. “That’s immunized unless their petition is beyond the pale of reasonableness.”

He said a jury verdict against Daleiden and a San Francisco County judge’s finding of probable cause for most charges filed against him make it “very clear” that the petition was reasonable.

Daleiden also claims he is the only journalist ever prosecuted for violating California penal code § 632, a law passed in 1967, which makes eavesdropping on or recording confidential communications a crime punishable by up to a year in prison and a $2,500 fine. Daleiden’s opponents dispute that he is the only journalist ever to be prosecuted for violating the law.

He further claims the state Legislature amended the eavesdropping law in 2016 to prohibit the publication of any “confidential communication” of a health care provider. He said that was specifically intended to stifle his speech and undercover journalism work. Daleiden seeks a court order declaring the amended state law an unconstitutional restriction on free speech.

“Our position is this is a content-based regulation on speech subject to strict scrutiny,” Daleiden’s attorney Peter Breen told the judge. “We have a pretty strong argument to strike it down.”

Judge Orrick, who oversaw two civil lawsuits against Daleiden’s group and barred him from releasing secret recordings, was not convinced by those arguments.

“I don’t think you’ve been able to state a claim specifically with respect to it, and I’m thinking you’re not going to be able to because you have to show it’s unconstitutional in every respect, and that just seems unlikely to me,” Orrick said.

A lawyer representing former California Attorney General’s office employee Jill Habig also argued the suit should be dismissed as time-barred because the complaint was filed more than two years after Daleiden obtained evidence supporting his selective prosecution claims.  

Attorney Erin Mayer said Daleiden had access to nine of the 11 emails cited in his complaint as early as February 2017 and as late as May 10, 2018, more than two years before he filed suit on May 12, 2020.

Mark Meuser, another lawyer representing Daleiden, said his client may have suspected he was the victim of selective prosecution before May 2018, but he did not obtain full knowledge until July and August of 2018 when documents were released showing a “relationship” between prosecutors and abortion provider groups.

Meuser claims an August 2018 document showed the decision to prosecute was based on the content of Daleiden’s speech, specifically how he edited and posted videos three years earlier.

Mayer emphasized that the law does not require that a plaintiff have “all pieces of the jigsaw puzzle” before the statute-of-limitations clock starts ticking.

“The standard is, ‘Does the plaintiff have a reason to know or at least to suspect he has a claim,” Mayer said. “Fall of 2017 is when they knew.”

Orrick said he is likely to dismiss selective prosecution claims as time-barred with leave to amend. But the judge said he could dismiss those claims permanently for a different reason — because California makes a compelling case for immunity.

“The prosecutorial immunity defenses seem strong and ripe and the question in my mind is whether the case should be dismissed without leave or with leave,” Orrick said.

After one hour of debate, Judge Orrick took the arguments under submission.

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