Ninth Circuit Lets Contempt Sanctions of Abortion Foe Stand

SAN FRANCISCO (CN) – The Ninth Circuit on Wednesday let stand a nearly $200,000 contempt fine against abortion foe David Daleiden and his criminal defense lawyers for releasing videos of an abortion trade group’s meeting in violation of a preliminary injunction.

A three-judge Ninth Circuit panel dismissed an appeal challenging the sanctions, finding it lacks jurisdiction to review civil contempt findings until after the case is brought to final judgment.

Daleiden’s lawyers, Steve Cooley and Brentford Ferreira, argued they needed to air the videos to mount a “vigorous criminal defense” for their client, who is fighting 15 state felony counts of invasion of privacy for posing as a fake biomedical firm to infiltrate and record an abortion trade group’s meetings.

“I believe they should have reached the merits, and if they had, we should have prevailed,” Ferreira said by phone Wednesday.

In 2016, U.S. District Judge William Orrick III granted the National Abortion Federation’s request to block the release of videos, finding the safety and privacy of abortion providers outweighed Daleiden’s First Amendment right to publish recordings obtained through deception.

In May 2017, Daleiden’s criminal defense lawyers posted links to the banned videos along with the names of secretly taped abortion providers on their website. The names and videos were presented as evidence to support Daleiden’s challenge against felony charges he faces in San Francisco Superior Court.

Orrick found the disclosure violated his injunction. He ordered Daleiden and his lawyers to pay $195,000 to compensate the National Abortion Federation for legal fees and security costs incurred as a result of the videos’ release.

National Abortion Federation lawyer Derek Foran, of Morrison & Foerster in San Francisco, said Orrick made the right call given the “overwhelming, uncontroverted evidence” that Daleiden and his lawyers posted or linked to the banned videos online, putting the safety of abortion providers at risk.

“There was only ever going to be one outcome, which is vindication for the National Abortion Federation and its members,” Foran said in an email.

Ferreira called the sanctions “an egregious abuse of contempt power” that violate his client’s free speech and due process rights.

“Our need to defend our client in a criminal case supersedes an injunction in a civil case where nobody’s liberty was at risk,” Ferreira said.

Daleiden and his co-defendants claim their deception was an act of investigative journalism aimed at exposing criminal misconduct by abortion providers, whom they accused of illegally selling fetal tissue for profit.

But Orrick said he reviewed hundreds of hours of videos and found no evidence of criminal wrongdoing. Orrick concluded that Daleiden’s group misleadingly edited videos to make it appear as though abortion providers were breaking the law.

Daleiden’s attorneys dispute that, citing investigations by Republican-led congressional committees that found his group’s investigation “generally had merit,” and a $7.7 million settlement two bioscience companies reached with the Orange County District Attorney’s Office in December 2017 for allegedly selling fetal tissue for profit.

The Ninth Circuit on Wednesday also rejected Daleiden’s request to remand the case to a different judge. In 2017, Daleiden sought to disqualify Orrick, citing his prior role as a board member of a Planned Parenthood-affiliated clinic and his wife’s Facebook “likes” of posts supportive of abortion rights.

U.S. District Judge James Donato rejected the motion to disqualify Orrick in June 2017.

U.S. Circuit Judges Paul Watford, Johnnie Rawlinson and Michelle Friedland made up the panel that dismissed Daleiden’s appeal Wednesday.

Watford and Friedland were appointed by Barack Obama. Rawlinson was appointed by Bill Clinton.

Daleiden’s attorney Peter Breen, of the Thomas More Society in Chicago did not immediately return a request for comment Wednesday morning.

A hearing in Daleiden’s criminal case in San Francisco Superior Court is scheduled for July 8.

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