Brownfield v. Bonta

• Court: District Court, N.D. California
• Decided: December 23, 2021
• Docket: 5:21-cv-09878
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 DAVID BROWNFIELD, et al., Case No. 5:21-cv-09878-EJD

9 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY 10 v. RESTRAINING ORDER

11 ROB BONTA, Re: Dkt. No. 10 Defendant. 12

13 On December 22, 2021, Plaintiffs Kirk Booth, David Brownfield, and Wynette Sills 14 moved for a temporary restraining order against California Attorney General Rob Bonta 15 (“Defendant”). Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining Order, 16 Dkt. No. 10-2. For the reasons discussed below, the Court DENIES the motion and ORDERS the 17 Parties to submit simultaneous briefing, not to exceed fifteen pages, regarding whether Plaintiffs 18 have Article III standing to pursue their claims by January 17, 2022. 19 This case arises from the California Legislature’s September 22, 2021 enactment of 20 Assembly Bill 1356, which amended Section 423.5 of the California Penal Code. Under 21 Assembly Bill 1356, it is a criminal offense to commit the following acts:

22 (g) Within 100 feet of the entrance to, or within, a reproductive health services facility, intentionally videotapes, films, photographs, or 23 records by electronic means, a reproductive health services patient, provider, or assistant without that person’s consent with specific 24 intent to intimidate the person from becoming or remaining a reproductive health services patient, provider, or assistant, and 25 thereby causes the person to be intimidated.

26 (h) In any manner or forum, including, but not limited to, internet websites and social media, intentionally discloses or distributes a 27 videotape, film, photograph, or recording knowing it was obtained in violation of subdivision (g) with the specific intent to intimidate the 1 person from becoming or remaining a reproductive health services patient, provider, or assistant, and thereby causes the person to be 2 intimidated. For purposes of this subdivision, “social media” means an electronic service or account, or electronic content including, but 3 not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or 4 accounts, or internet website profiles or locations. 5 Section 6 of the Bill also amends Section 423.3 of the penal code to add the following:

6 (i) Subdivisions (g) and (h) do not apply to a person described in subdivision (b) of Section 2 of Article I of the California Constitution. 7 Section 2, subdivision (b), of Article I of the California Constitution describes “[a] 8 publisher, editor, reporter, or other person connected with or employed upon a newspaper, 9 magazine, or other periodical publication, or by a press association or wire service, or any person 10 who has been so connected or employed,” and “a radio or television news reporter or other person 11 connected with or employed by a radio or television station, or any person who has been so 12 connected or employed.” A violation of Section 432.2(g) or (h) is a criminal misdemeanor under 13 Penal Code § 423.3 and is punishable by fine, imprisonment, or both. 14 Plaintiffs seek a temporary restraining order and a preliminary injunction to stop the Bill 15 from taking effect. Mot. at 1. Plaintiffs argue the law will have the effect of unconstitutionally 16 chilling “constitutionally protected speech activity” and that an injunction is necessary to ensure 17 the Bill does not interfere with such constitutionally protected activity. Plaintiffs highlight the 18 exemption of the media to demonstrate that the Bill is motivated at chilling the speech of pro-life 19 activists. 20 “The same legal standard applies to a motion for a temporary restraining order and a 21 motion for a preliminary injunction.” Henry Schein, Inc. v. Cook, 191 F. Supp. 3d 1072, 1076 22 (N.D. Cal. 2016). “A plaintiff seeking either remedy must establish that he is likely to succeed on 23 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 24 balance of equities tips in his favor, and that an injunction is in the public interest.” Id. (internal 25 citation and quotation omitted). On a temporary restraining order, a plaintiff must demonstrate 26 that there exists a significant threat of irreparable injury. See, e.g., Baker DC v. NLRB, 102 F. 27 Supp. 3d 194, 198 (D.D.C. 2015). 1 Here, Plaintiffs have failed to demonstrate a significant threat of irreparable harm. 2 || Plaintiffs argue that they will be harmed by the Bill because it will chill their protected speech by 3 || making it riskier for them to record and thus defend themselves from threatening interactions. 4 || Even assuming the taking of a photo or video outside an abortion clinic is “protected speech” 5 || within the meaning of the First Amendment, the Court is unclear how the Bill will impact 6 Plaintiffs’ ability to “photograph[] and videorecord|[] hostile encounters” while “leafleting and 4 counseling” outside abortion clinics. Mot. at 3. The Bill only criminalizes the taking of a photo or g video with the specific intent to intimidate someone else from obtaining an abortion or providing 9 abortion services. Plaintiffs allege that they only intend to protect themselves from hostile

10 interactions. See, e.g., Amended Complaint {] 8; Declaration of David Brownfield 4, Dkt. No. 11 (“I record in order to make a record of unusual, or threatening, incidents.” (emphasis added)). This is plainly not criminalized by the statute. The statute thus has no chilling effect on Plaintiffs’ E activities outside abortion clinics. = Federal courts are required to sua sponte examine jurisdictional issues, such as standing. M4 B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The Court is concerned 1S that Plaintiffs’ allegations of harm are not particular enough to support Article III standing. The 16 Parties are therefore ORDERED to submit simultaneous briefing, not to exceed fifteen pages, 7 regarding whether Plaintiffs have Article III standing to pursue their claims by January 17, 2022. 18 IT IS SO ORDERED. 19 Dated: December 23, 2021 20

22 EDWARD J. DAVILA United States District Judge 23 24 25 26 27 28 || Case No.: 5:21-cv-09878-EJD ORDER DENYING PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER