Case3:07-cv-06411-CRB Document38 Filed06/06/08 Page1 of 10

1 Michael Millen Attorney at Law (#151731)
2 119 Calle Marguerita Ste. 100 Los Gatos, CA 95032
3 Telephone: (408) 871-0777 Fax: (408) 516-9861
4 mikemillen@aol.com
5 Catherine Short, Esq. Life Legal Defense Foundation
6 P.O. Box 1313 Ojai, CA 93024-1313
7 (805) 640-1940
8 Attorneys for Plaintiff
9

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 WALTER B. HOYE, II,

NO.: C07-06411 CRB

14

Plaintiff,

15

v.

16 CITY OF OAKLAND,

17

Defendant.

18

19

20

FIRST AMENDED COMPLAINT FOR CIVIL RIGHTS VIOLATION AND INJUNCTIVE AND DECLARATORY RELIEF;
DEMAND FOR JURY TRIAL
1. 42 U.S.C. § 1983 [Free Speech] 2. 42 U.S.C. §1983 [Equal Protection] 3. California Constitution, Art. I, §2 4. California Constitution, Art. I, §7 5. California Civil Code §52.1

21

22

Plaintiff alleges as follows:

23

1. Plaintiff Walter B. Hoye, II, is a natural person. Motivated by his moral, religious,

24 and political beliefs, plaintiff has regularly engaged in pro-life, anti-abortion speech activities within

25 the City. These speech activities include hand-to-hand leafleting, education about abortion, and

26 holding signs which say things like “God loves you & your baby / Let us help you”. All of these

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1 activities occur on public sidewalks or other public fora, where he can convey his message to the

2 public.

3

2. Defendant CITY OF OAKLAND ("City") is a municipal corporation organized under

4 the laws and Constitution of the State of California, and is a corporate entity capable of suing and

5 being sued. Defendant City maintains and operates the City of Oakland Police Department which,

6 in the first instance, is responsible for the enforcement of the ordinance in question and the arrest of

7 person alleged to have violated it.

8

3. JURISDICTION: This Court has jurisdiction over this action pursuant to Title 28

9 U.S.C. §§1331 and 1343(3) in that the controversy arises under the United States Constitution and

10 under 42 U.S.C. §1983 and 28 U.S.C. §§2201 and 2202. This Court has authority to award

11 attorneys fees pursuant to 42 U.S.C. §1988. Plaintiff further invokes the supplemental jurisdiction

12 of this Court under 28 U.S.C. §1367(a) to hear and adjudicate state law claims. Each and all of the

13 acts (or threats of acts) alleged herein were done by defendants, or their officers, agents, and

14 employees, under color and pretense of the statutes, ordinances, regulations, customs and usages of

15 the City of Berkeley.

16

4. INTRADISTRICT ASSIGNMENT: Venue is proper in this district under 28 U.S.C.

17 §1391(b) because a substantial part of the events giving rise to the claims in this action occurred in

18 this district.

19

5. On or about December 18, 2007, the City adopted Municipal Code Chapter 8.50,

20 entitled “Access to Reproductive Health Care Facilities” (herein the “ original ordinance”). On

21 December 18, 2007, Plaintiff filed this action challenging the constitutionality of the original

22 ordinance. Following a hearing on Plaintiff’s Application for Temporary Restraining Order, the City,

23 through its attorneys, agreed not to enforce the original ordinance and to amend that ordinance. On

24 February 5, 2008, the City amended Chapter 8.50. A copy of the amended ordinance (hereinafter

25 the “Ordinance”) is attached to this Amended Complaint as Exhibit A.

26

6. Violation of the Ordinance is a criminal misdemeanor under §4(a).

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1

7. The law enforcement arm of the City is the Oakland Police Department (“OPD”). It is

2 the OPD which actually interprets, enforces, and arrests persons who have allegedly violated the

3 Ordinance.

4

8. The OPD has a set of regulations which supposedly govern its enforcement of the

5 Ordinance. The regulations are contained in a “Training Bulletin”, the current version of which is

6 dated May 1, 2008, and attached hereto as Exhibit B.

7

9. In practice, OPD enforces and interprets the Ordinance in various and conflicting ways,

8 with the effect a person can never be particularly sure whether their conduct will or will not be

9 charged as a violation of the Ordinance. Some of the interpretations violate the constitutional

10 norms set forth in Hill v. Colorado, 530 U.S. 703 (2000), for example:

11

A. On March 25, 2008, at approximately 8:30 a.m. in front of an abortion clinic, an OPD

12 officer explained to plaintiff and others present that the Ordinance created a “moving bubble zone”

13 so that any time plaintiff was standing within 100 feet of the clinic, he had to move more than 8 feet

14 away from any person who approached him or was going into the clinic. The police were clear that

15 failure to abide by this interpretation would make plaintiff subject to arrest for violation of the

16 ordinance. Plaintiff’s counsel communicated to the City attorney this interpretation, and the City

17 attorney has never communicated back to plaintiff’s counsel that such is not the official policy of the

18 OPD. While on May 29, 2008, an attorney for the City stated in a legal brief that “[t]he Ordinance

19 expressly applies only when speakers . . . approach individuals near the clinic – not when they

20 merely remain stationary”, the City has offered no assurance that the OPD has changed its policy to

21 conform to the City’s legal briefing.

22

B. On May 13, 2008, shortly after 10:00 a.m. in front of an abortion clinic, an OPD officer

23 told plaintiff that he was not allowed to approach or be within 8 feet of escorts, clinic personnel, or

24 clients. The officer intended for plaintiff to understand that merely being within 8 feet of escorts,

25 clinic personnel, or clients within the 100’ zone would result in his arrest. Plaintiff’s counsel has

26 informed the City attorney of this OPD interpretation, and the City attorney has never denied that

27 such is the official policy of the OPD. While on May 29, 2008, an attorney for the City stated in a

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1 legal brief that “[t]he Ordinance expressly applies only when speakers . . . approach individuals near

2 the clinic – not when they merely remain stationary”, the City has offered no assurance that the

3 OPD has changed its policy to conform to the City’s legal briefing.

4

C. On June 3, 2008, between 9:10 a.m. and 9:31 a.m. in front of an abortion clinic, a

5 witness observed two different clinic escorts, whom plaintiff alleges on information and belief are

6 volunteers, approaching within 8 feet of persons entering the clinic and speaking to them without

7 obtaining their consent. The witness called OPD at 9:34 a.m. to report this apparent violation of the

8 Ordinance. The dispatching officer asked for descriptions of the alleged offenders and also asked if

9 one was a certain male “because if he is there, there is an ordinance against him and he should not

10 be there.” At around 10:05 a.m. Officer V. Johnson responded. After learning of the situation, the

11 Officer responded that the escorts were “professional people” so it was permissible for them to

12 approach patients. The next day the witness again spoke with Officer Johnson who said he was not

13 filing an official report about the incident. Officer Johnson stated that his supervisor, who is

14 Sergeant David Elzey, explained that volunteer clinic escorts were “protected individuals” who

15 could not be charged with violating the Ordinance by approaching clients to converse. On June 5,

16 2008, plaintiff’s counsel communicated Sgt. Elzey’s interpretation to the City attorney via email.

17 The City attorney responded back to the email but did not in any way deny or discount the policy

18 set forth by Sgt. Elzey.

19

10. Plaintiff has already been arrested once for allegedly violating the Ordinance and is at

20 risk to be arrested again. Plaintiff contends that he is the individual whom the OPD dispatcher

21 specifically noted as to whom the ordinance was against, and that the police will arrest him

22 according to the interpretations they have given as set forth above. The OPD itself, has never

23 disavowed any of the three interpretations mentioned in the preceding paragraph, and the City

24 attorney has not disavowed the last interpretation. Plaintiff reasonably fears that he will be arrested

25 by OPD for conduct which is not prohibited by the Ordinance and/or otherwise protected by the

26 U.S. Constitution.

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1

11. The OPD has an unwritten policy exempting from the reach of the Ordinance any

2 person who approaches and speaks to clients for the purposes of encouraging them to use clinic

3 services. That same unwritten policy holds that plaintiff is to be arrested if he approaches and speaks

4 to clients for the purposes of encouraging them to choose options other than utilizing clinic services.

5 This is a form of content and viewpoint discrimination.

6

12. The Ordinance, both as written and as enforced by defendant, is content- and viewpoint-

7 based, abuses governmental power, denies free speech in a traditional public forum, does not further

8 any important or substantial government interest, and imposes restrictions that are greater than

9 necessary to further any government interest asserted.

10

13. Specifically but not exclusively, the ordinance is content-based because the main

11 purpose in enacting it was to suppress speech of a certain content and because it differentiates

12 speech based on the content of the speech. This includes, without limitation, the fact that the

13 ordinance elevates commercial speech over non-commercial speech by restricting “protest,

14 education, and counseling” but not other forms of speech such as panhandling and vending.

15

14. Specifically but not exclusively, the Ordinance is not narrowly tailored to serve any

16 significant governmental interest and imposes restrictions that are greater than necessary to further

17 such interests because, on its face and as applied, it restricts uninvited approaches as well as

18 unwanted and unwelcome approaches.

19

15. Any interest advanced by defendant to support the Ordinance is related to the

20 suppression of constitutional and statutory rights and is also minor compared to the infringement of

21 rights worked by the Ordinance.

22

16. Unless and until defendants are restrained by order of this Court, defendants, acting

23 through their officers, servants, agents and employees, will enforce the Ordinance.

24

17. Unless and until this Court declares the Ordinance unconstitutional, defendant, acting

25 through its officers, servants, agents and employees, will enforce the Ordinance.

26

18. All of the acts of the defendant, its officers, agents, servants, and employees, as alleged

27 herein, were done or are threatened to be done under color and pretense of the statutes, ordinances,

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1 regulations, customs, official policies, official procedures, and usages of the City of Oakland and the

2 State of California.

3

19. Plaintiff is suffering irreparable injury from the enforcement and threat of enforcement of

4 the Ordinance, and will continue to suffer irreparable injury until the threat of enforcement is lifted.

5

6

FIRST CAUSE OF ACTION

7

(42 U.S.C. § 1983: FREE SPEECH AND DUE PROCESS)

8

20. Plaintiff incorporates by reference all preceding paragraphs as if fully restated here.

9

21. The Ordinance is an unconstitutional abridgment on its face, and as applied or threatened

10 to be applied, of the plaintiff’s affirmative rights to freedom of speech under the United States

11 Constitution, First and Fourteenth Amendments.

12

22. The Ordinance, on its face and as applied or threatened to be applied, is an

13 unconstitutionally overbroad restriction on expressive activity.

14

23. The Ordinance, on its face and as applied or threatened to be applied, is an

15 unconstitutionally vague restriction on expressive activity.

16

24. The Ordinance, on its face and as applied or threatened to be applied, is a content-based

17 and viewpoint-based restriction on speech.

18

25. The Ordinance, on its face and as applied or threatened to be applied, does not serve a

19 significant governmental interest.

20

26. The Ordinance, on its face and as applied or threatened to be applied, does not leave

21 open ample alternative channels of communication.

22

27. The Ordinance, on its face and as applied or threatened to be applied, is neither narrowly

23 tailored nor the least restrictive means to accomplish any permissible governmental purpose sought

24 to be served by the legislation.

25

28. The Ordinance fails to adequately advise, notify, or inform persons threatened with

26 possible prosecution for violation of their requirements. Therefore, the Ordinance is

27

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1 unconstitutionally vague, on its face and as applied or threatened to be applied, in violation of the

2 due process guarantee of the Fourteenth Amendment to the United States Constitution.

3

29. The Ordinance is an irrational and unreasonable statute, imposing unjustifiable

4 restrictions on the exercise of protected constitutional rights. Because the Ordinance is irrational

5 and unreasonable, its application violates the due process guarantee of the Fourteenth Amendment

6 to the Untied States Constitution

7

30. The Ordinance, on its face and as applied or threatened to be applied, violates the Equal

8 Protection Clause of the Fourteenth Amendment to the United States Constitution and similar

9 guarantees in the California State Constitution by denying plaintiff free speech rights allowed to

10 others in similar situations and other protections of state and federal law.

11

SECOND CAUSE OF ACTION

12

(42 U.S.C. SECTION 1983: EQUAL PROTECTION)

13

31. Plaintiff incorporates by reference paragraphs 1 – 30 as if fully set forth herein.

14

32. The Ordinance, on its face and as applied or threatened to be applied, violates the Equal

15 Protection Clause of the Fourteenth Amendment. Specifically but not exclusively, the Ordinance

16 creates three classes: Persons entering abortion clinics, persons wishing to communicate with those

17 entering abortion clinics for the purposes of encouraging them to use clinic services, and persons

18 wishing to communicate with those entering abortion clinics for the purposes of encouraging them

19 to choose options other than utilizing clinic services.

20

33. These classifications have a direct bearing on the fundamental interest in free speech.

21 The City has no compelling interest justifying the creation of these classes and cannot show that

22 these classifications are necessary to serve any legitimate governmental interest.

23

34. The Ordinance singles out persons approaching abortion clinics as a class to be

24 specifically isolated from speech, and correspondingly burdens the speech of that class of persons

25 wishing to encourage them to choose options other than utilizing clinic services. These

26 classifications have a direct bearing on the fundamental interest in free speech. The City has no

27

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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1 compelling interest justifying the creation of these classes and cannot show that these classifications

2 are necessary to serve any legitimate governmental interest.

3

4

THIRD CAUSE OF ACTION

5

(VIOLATION OF CALIFORNIA CONSTITUTION, ARTICLE I, SECTION 2)

6

35. Plaintiff incorporates paragraphs 1- 34 as if fully set forth herein.

7

36. The Ordinance, on its face and as applied or threatened to be applied, violates Article I,

8 Section 2 of the California Constitution.

9

10

FOURTH CAUSE OF ACTION

11

(VIOLATION OF EQUAL PROTECTION, CALIFORNIA CONSTITUTION

12

ARTICLE I, SECTION 7 AND ARTICLE IV, SECTION 16)

13

37. Plaintiff incorporates paragraphs 1- 36 as if fully set forth herein.

14

38. The Ordinance, on its face as applied or threatened to be applied, violates Article I,

15 section 7 and Article IV, section 16 of the California Constitution.

16

17

FIFTH CAUSE OF ACTION

18

(VIOLATION OF CALIFORNIA CIVIL CODE §52.1)

19

39. Plaintiff incorporates paragraphs 1- 38 as if fully set forth herein.

20

40. The Ordinance, on its face and as applied or threatened to be applied, interferes with

21 plaintiff’s exercise of the right to free speech and to assembly guaranteed by the First Amendment of

22 the United States Constitution and Article I, §2 of the California Constitution, his right to be free

23 from unlawful search and seizure guaranteed by the Fifth and Fourteenth Amendments to the United

24 States Constitution and Article I, §13 of the California Constitution, his rights under California’s 25 Unruh Act to be free from unlawful discrimination, and his equal protection rights under the 14th

26 Amendment to the United States Constitution. This was and is a violation of California Civil Code

27 §52.1.

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

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1

41. Unless enjoined by this Court, defendants will continue to infringe plaintiff’s

2 constitutionally protected rights and thereby cause irreparable injury, as damages alone cannot fully

3 compensate plaintiff for the ensuing harm. This threat of injury from continuing violations requires

4 injunctive relief.

5

6

7

WHEREFORE, plaintiff prays that this Court:

8

(a) Enter judgment against the defendant;

9

(b) Enter a declaratory judgment declaring the acts of the defendant to be a violation of

10 plaintiff’s constitutional rights to freedom of speech, equal protection, and due process;

11

(c) Issue a declaratory judgment declaring that Oakland Municipal Code Chapter 8.50 is

12 unconstitutional on its face;

13

(d) Issue a declaratory judgment declaring that Oakland Municipal Code Chapter 8.50 is

14 unconstitutional as enforced and as applied;

15

(e) Issue a temporary restraining order, and a preliminary and permanent injunction

16 enjoining defendants, their agents, servants, employees, officers and the City of Oakland Police

17 Department from enforcing Oakland Municipal Code Chapter 8.50;

18

(f) Award plaintiff costs, interest and reasonable attorneys’ fees for this action pursuant to

19 42 U.S.C. §1988 and other relevant statutes; and,

20

(g) Order such other and further relief as the Court deems just and proper under the

21 circumstances.

22

23

24 Dated: June 6, 2008

25

MICHAEL MILLEN, ESQ.

26

ATTORNEY FOR PLAINTIFF

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

C07-06411 CRB

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JURY DEMAND

2

Plaintiff hereby requests a jury trial in this matter.

3

4 Dated: June 6, 2008

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Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

FIRST AMENDED COMPLAINT

MICHAEL MILLEN, ESQ. ATTORNEY FOR PLAINTIFF

C07-06411 CRB

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1 ANGELA 1. PADILLA (CA STATE BAR NO. 154863)
SARAH C. MARRIOTT (CA STATE BARNO. 241301) 2 ERIN H. REDING (CA STATE BAR NO. 252691)
3 ORRICK, HERRINGTON & SUTCLIFFE LLP 405 Howard Street
4 San Francisco, CA 94105 Telephone: 415-773-5700
5 Facsimile: 415-773-5759

6 JOHN A. RUSSO (CA STATE BAR NO. 129729)
7 VICKI LADEN (CA STATE BAR NO. 130147) CITY OF OAKLAND
8 I Frank Ogawa Plaza, 6th Floor Oakland, CA 94612
9 Telephone: 510-238-4941
10 Facsimile: 510·238·6500

II

Attorneys for Defendant CITY OF OAKLAND

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 16 WALTERB. HOYE, II,

CASE NO. C07-06411 CRB

17

Plaintiff,

18

v.

19 CITY OF OAKLAND

20

Defendant.

21

22

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

Date: Time: Judge: Courtroom:

August 22, 2008 10:00 A.M. Honorable Charles Breyer 8, 19th Floor

23

24

25

26

27

28
OHS West:260460265.2

DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Case3:07-cv-06411-CRB Document44 Filed06/23/08 Page2 of 11

1 I. INTRODUCTION

2

Plaintiff asserts free speech and equal protection challenges to a City of Oakland

3 ordinance safeguarding the right of Oakland citizens to safely and privately access health care

4 services. Plaintiffs claims fail, however, under the United States Supreme Court's decision in
5 Hill v. Colorado, 530 U.S. 703 (2000). Under Hill, it is clear that the Oakland ordinance, which 6 was modeled on the Colorado statute upheld in Hill, is facially constitutional. Furthermore, it is

7 undisputed that plaintiffs arrest complied with the terms of the ordinance. Plaintiffs complaint

8 shOUld therefore be dismissed in its entirety.

9 II. STATEMENT OF FACTS

10

On December 18, 2007, the Oakland City Council passed Ordinance No. 81022, "Access

11 to Reproductive Health Care Facilities," a "Bubble Ordinance" that protects patients seeking

12 reproductive health services and reproductive health clinic personnel from harassment,

13 intimidation, or interference with their ability to access reproductive health care facilities. 14 Docket No. 31, Laden Decl., ~ 2; Compl., Ex. A., at 1. On December 19, 2007, plaintiff filed a

15 complaint alleging that the Ordinance was facially unconstitutional. Docket No. 31, Laden

16 Decl., ~ 3. After a telephone conference with the Court, the City agreed to amend the Ordinance

17 to obviate plaintiff's concerns. ld. On February 5, 2008, the City passed the amended ordinance

18 (Ordinance No. 12860) (the "Ordinance"). ld., ~ 6.

19

The Ordinance provides that "[w]ithin 100 feet of the entrance of a reproductive health

20 care facility, it shall be unlawful to willfully and knowingly approach within eight (8) feet of any

21 person seeking to enter such a facUity ... without the consent of such person ... for the purpose

22 of counseling, harassing, or interfering with such person ...." Compi., Ex.A, at 4. The 23 Ordinance also prohibits the use offorce or physical obstruction to interfere with persons 24 "providing ... reproductive health services." ld. Persons "providing reproductive health

25 services" include "volunteers who, with the consent of the reproductive health care facility, assist 26 in conducting patients of such facility safely into the facility." Jd., Ex. A., at 3.

27

On April 29, 2008, plaintiff stood in front of a reproductive health facility, the Family

28 Planning Specialists Medical Group, with a "picket sign and a bundle of pamphlets." Docket

OHS West:26046026S.2

DEFllNOANTS MEMORANDUM IN SUPPORT OF MOTION TO
DISMISS PLAlNiIFF'S COMPLAINT

Case3:07-cv-06411-CRB Document44 Filed06/23/08 Page3 of 11

1 No. 32, Supp. Laden Decl., Ex. A, Crime Report, at 4. Five separate witnesses attested under

2 oath to the fact that the plaintiff approached within eight feet of at least eight different patients 3 and their families or significant others, to hand out fliers and "harass" them. l Docket No. 32,

4 Supp. Laden Decl., Exs. CoG. Plaintiff approached patients attempting to enter the facility as

5 well as patients in motor vehicles parked in the loading zone in front of the facility. Id. At one

6 point, the director of the medical group used a measuring tape to show plaintiff that he was

7 violating the ordinance. Docket No. 32, Supp. Laden Decl., Ex. A at 4. The director measured

8 the distance between plaintiff and the clinic's patients to show plaintiff that he was within eight

9 feet ofthem. Id. Despite being repeatedly warned by employees of the facility, plaintiff

10 knowingly and willingly continued to violate the ordinance. Id. at 4-5. In many cases, plaintiff

II was within just two or three feet ofthe patients. Id. Many witnesses also confirmed that plaintiff

12 came to the clinic on the same day of almost every week and that he often approached within

13 eight feet ofpatients while "harassing" them. Id

14

On May 13, 2008, plaintiff was arrested by the Oakland police for his April 29, 2008,

15 violations of the Ordinance. On May 22, 2008, plaintiff filed an application for temporary

16 restraining order and order to show cause regarding preliminary injunction. Docket No. 20. In a

17 telephonic hearing on May 30, 2008, this Court denied plaintiffs application. Docket No. 34.

18 Plaintiff filed his First Amended Complaint on June 6, 2008. Docket No. 38.

19 III. ARGUMENT

20

A Rule 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal

21 theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v.

22 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village ofLombard, Ill,

23 58 F.3d 295, 297 (7th Cir. 1994). To survive dismissal under Rule 12(b)(6), a complaint must

24 allege "enough facts to state a claim that is plausible on its face." Bell Atlantic Corp. v. Twombly

25

26

1 Plaintiff was "clearly within 8 feet of [the patients]." Docket No. 32, Supp. Ladcn Decl., Ex. C. Plaintiff would "come within 4' of[the patients]." Id., Ex. D. Plaintiff was "clearly within 8

27 feet of [an escort]." Id., Ex. E. Plaintiff "came within 2-3' each time to display his anti-abortion sign." Id., Ex. F. Witness "observed [plaintiff] come within 2' ofthe patients." Id., Ex. G.

28

OHS West:260460265.2

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DEfENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Case3:07-cv-06411-CRB Document44 Filed06/23/08 Page4 of 11

1 -- U.S. -, 127 S.Ct. 1995, 1974 (2007). Moreover, "[a]lthough the federal procedural standards

2 for notice pleading ... are liberal, they are not so liberal as to allow purely conclusory statements

3 to suffice to state a claim that can survive a motion to dismiss ...." Miller v. Cant '/ Airlines.

4 Inc., 260 F. Supp. 2d 931, 935 (N.D. Cal. 2003).

5

A. The Complaint Fails To State A Claim For Violation Of The First

Amendment's Free Speech Clause.

6

7

Plaintiffs First Cause of Action purports to state a claim for violation of the Free Speech

8 Clause of the First Amendment. Compi. ft 21·27. This cause of action should be dismissed

9 because plaintiff s allegations are insufficient to support either a facial or an as-applied challenge

10 to the Ordinance.

11

1. The Ordinance, on Its Face, Does Not Violate the Free Speech

Protections of the United States Constitution. 12

13

The Supreme Court recently upheld a Colorado statute nearly identical to the Oakland

14 ordinance in Hill v. Colorado, 530 U.S. 703 (2000). Like the Oakland ordinance, the Colorado

15 statute regulated speech within 100 feet of any health care facility, and made it unlawful for

16 anyone within the 100-foot regulated area to "'knowingly approach' within eight feet of another

17 person, without that person's consent, 'for the purpose of passing a leaflet or handbill to,

18 displaying a sign to, or engaging in oral protest, education, or counseling with such other person.

19 ...'" Id. at 707. The Supreme Court held that the Colorado statute was content-neutral because

20 it regulated ''the places where some speech may occur" rather than speech itself, id. at 719, its

21 restrictions applied "equally to all demonstrators, regardless of viewpoint," id., and the state's

22 interests in protecting access to health care facilities and patients' privacy were unrelated to the

23 content of the demonstrators' speech, id. at 719-20. These rationales apply equally to the

24 Oakland ordinance, which regulates speech of any viewpoint within 100 feet of a reproductive

25 health facility in the interest of safeguarding access to health care. Compl., Ex. A. The

26 Ordinance, therefore, is not a content- or viewpoint-based restriction on speech in violation of

27 the First Amendment. See Compl. ~ 24.

28

The Supremc Court has also made clear that an ordinance like Oakland's is narrowly

OHS West:260460265.2

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tailored and leaves open enough alternative channels of communication to survive constitutional

2 review. In Hill, the Court reasoned that the Colorado statute placed no limitations on the

3 "number, size, text, or images" on demonstrators' signs and that it did not limit the number of

4 speakers permitted in the area or their noise level. Hill, 530 U.S. at 725-26. The statute's eight-

5 foot "buffer zone" was small enough to allow speakers to communicate at a "normal

6 conversational distance." Most significantly, its prohibition on speech only where speakers

7 "knowingly approach" within eight feet of individuals allowed speakers to remain in place even

8 if individuals passed within eight feet of them and "protect[ed] speakers who thought they were

9 keeping pace with the targeted individual at the proscribed distance from inadvertently violating

10 the statute." ld at 726-27. As in Hill, the Oakland ordinance creates a mere eight-foot

11 separation between speakers and individuals trying to enter health facilities, and makes speech

12 unlawful only where the speaker "willfully and knowingly approach[es]." Compl., Ex. A, at 4.

13 Thus, like the statute challenged in Hill, Oakland's ordinance is narrowly tailored. The Hill

14 court also firmly established that access to reproductive care is an important govemment interest.

15 !d. at 715. All of plaintiffs arguments to the contrary are unavailing. ld.

16

Plaintiff's allegation that the Ordinance is unconstitutionally overbroad also fails.

17 Compl. ~ 22. While it is not clear from the complaint exactly what aspects of the Ordinance

18 plaintiff believes to be overbroad, the Supreme Court's opinion in Hill shows that the Ordinance

19 is not unconstitutionally overbroad. As the Supreme Court stated, the fact that a regulation

20 protects more people than just patients at facilities where confrontational speech has occurred is

21 "of no constitutional significance. What is important is that all persons entering or leaving health

22 care facilities share the interests served by the statute." Hill, 530 U.S. at 731. The Court

23 acknowledged that the Colorado statute regulated protected speech. The only issue was whether

24 the statute was a valid "time, place or manner" restriction, and therefore the statute's

25 comprehensiveness was "a virtue, not a vice, because it is evidence against there being a

26 discriminatory governmental motive." ld. The Court also rejected the contention that the

27 statute's regulation of a broad range of forms of expression made it overbroad. As the Court

28 stated, the statute "does not ban any messages ... [i]t merely regulates the places where

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COMPLAINT

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communications may occur." Id. Like the Colorado statute, the Ordinance protects all persons

2 entering and leaving reproductive health facilities. It does so only by regulating the place where

3 communications may occur. The Ordinance is therefore not an overbroad regulation of speech.

4

Plaintiff's complaint also alleges that the Ordinance is unconstitutionally vague because

5 it "fails to adequately advise, notify, or inform persons threatened with possible prosecution for

6 violation of [its] requirements." Compl. 'll28. This contention too should be rejected for the 7 reasons expressed by the Supreme Court in Hill, in concluding that the Colorado statute was not

8 unconstitutionally vague: "it is clear what the ordinance as a whole prohibits." Hill, 530 U.S. at

9 733. The Oakland ordinance clearly prohibits the following specific actions:

10

• within 100 feet of the entrance ofa reproductive health care facility;

11

•

willingly and knowingly approaching within 8 feet of any person;

12

•

for the purpose of counseling, harassing, or interfering with such person --

13

terms that are explicitly defined in Section 2 of the Ordinance. Millen

14

Decl., Ex. A, at 3-4.

15

Finally, plaintiff has virtually conceded the facial constitutionality of the Ordinance and

16 the Court has noted the same. At the May 30, 2008, hearing in which the Court denied plaintiff's

17 application for a Temporary Restraining Order, the Court noted the facial constitutionality of the

18 Ordinance: "[i]n other words, you are not saying the Oakland ordinance is unconstitutional. I

19 mean, we have had that discussion." Plaintiff responded: "Yeah, true," and the Court replied by

20 concluding: "So [the Ordinance] is Constitutional." Docket No. 34, Transcript p. 11:5-10.

21

2. The Ordinance"As Applied" to Plaintiff is Constitutional.

22

Plaintiff's First Cause of Action also purports to make an as-applied challenge to the

23 Ordinance. While the parameters of plaintiff's as-applied challenge are unclear, it is clear that he

24 has alleged no facts that would support a successful as-applied claim.

25

a. Plaintiffs Arrest Did Not Violate The Constitution.

26

Plaintiff alleges that he "has already been arrested once for allegedly violating the

27 Ordinance and is at risk to be arrested again." Compl. 'lll O. He asserts that he fears that he will

28 be arrested again for conduct protected by the Constitution. Id. These allegations are not

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sufficient to state a valid as-applied claim, however, because plaintiff has not alleged - nor could

2 he - that anything about his actual arrest violated the Constitution.

3

Five separate witnesses have attested under oath to the fact that on April 29, 2008, the

4 plaintiff approached within eight feet of at least eight different patients and their families or 5 significant others, to hand out fliers and "harass" them.2 Docket No. 32, Supp. Laden Decl., Exs.

6 C-G. Plaintiff does not dispute that he was arrested for violating the Ordinance - that he 7 "approached" women entering the clinic; that he came less than eight feet from them in order to

8 convey his message; and that he approached the clinic director. Id. Because he was arrested for

9 clear violations of a constitutionally valid ordinance, plaintiff cannot make a valid as-applied

10 challenge to the Ordinance based on his arrest.

11

b. The Alleged Comments By Police Officers Do Not Make

12

Plaintiffs Arrest Unconstitutional.

13

Plaintiffs complaint could also be read to base his as-applied challenge on the comments

14 supposedly made to him by police officers interpreting the Ordinance. Compl. ~ 9. These

15 comments are irrelevant. Comments by police officers about scenarios not actually presented on

16 the day of the arrest are irrelevant as a matter oflaw. See Monell v. Department a/Social

17 Services, 436 U.S. 658, 694 (1978) (holding that a municipality can only be held liable for a

18 constitutional injury where the acts in question are pursuant to the official policy or custom of

19 the municipal government, whether made by its lawmakers or by those whose acts may be said

20 to fairly represent official policy). Regardless of any comments that police officers allegedly

21 made to plaintiff, he was arrested fbr violating the ordinance as written, and the Ordinance as

22 written is constitutional. Furthermore, plaintiff does not allege that any person was arrested for

23 violating the Ordinance as allegedly "interpreted" by stray police comments.

24

25

26

2 Plaintiff was "clearly within 8 feet of [the patients]." Docket No. 32, Supp. Laden Decl., Ex. C. Plaintiff would "come within 4' of [the patients]." Id, Ex. D. Plaintiff was "clearly within 8

27 feet of [an escort]." Id, Ex. E. Plaintiff "carne within 2-3' each time to display his anti-abortion sign." Id., Ex. F. Witness "observed [plaintiff] come within 2' of the patients." Id, Ex. G.

28

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c. The Police Officers' Alleged Treatment of Clinic Escorts Did Not Violate Plaintiff's First Amendment Rights.
2

3

Plaintiff also appears to claim that his First Amendment rights were violated by police

4 officers' alleged statements about volunteer clinic escorts and by the same officers' failure to

5 arrest clinic escorts after "a witness observed two different clinic escorts ... approaching within

6 8 feet of persons entering the clinic and speaking to them without obtaining their consent."
7 Compl. ~ 9C. The police's treatment of clinic escorts, however, has no impact on plaintiff's 8 claim that his constitutional rights were violated.

9

First. plaintiff does not have standing to assert a claim based on the police's treatment of

10 the clinic escorts. In order to have standing to bring a claim in federal court, "a plaintiff must 11 allege apersonal injury fairly traceable to the defendant's allegedly unlawful conduct and likely
12 to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984) (citing Valley 13 Forge Christian College v. Americans United/or Separation a/Church and State, Inc., 454 U.S.

14 464.472 (1982». The non-arrest of the escorts was neither an injury-in-faet nor conduct personal

15 to the plaintiff, and therefore he has no standing to bring a claim regarding defendant's failure to

16 arrestthe escorts.

17

Second, even were the Court to assume that plaintiff had standing to assert a claim based

18 on the non-arrest of clinic escorts, the failure to arrest the escorts did not violate plaintiffs rights.

19 Like the Colorado statute upheld in Hill, the Oakland ordinance prohibits certain speech within

20 eight feet of "any person" - including escorts. The Ordinance specifically protects "volunteers

21 who, with the consent of the reproductive health care facility, assist in conducting patients of
22 such facility safely into the facility." Id, Ex. A., at 3. The Supreme Court upheld such language 23 in Hill by explicitly recognizing that "it was a cornmon practice to provide escorts for persons 24 entering and leaving the clinics both to ensure their access and to provide protection ...." Hill,

25 530 U.S. at 709-710.

26

Oakland's protection of clinic volunteers who assist in conducting patients safely into

27 reproductive health care facilities is a valid "exercise of [Oakland's] police powers to protect the

28 health and safety of[its] citizens." See Hill, 730 U.S. at 715. Plaintiffs conclusory allegation

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that a witness saw "volunteers ... approaching within 8 feet of persons entering the clinic and 2 speaking to them without obtaining their consent" (Compl. ~ 9C) does not undermine Oakland's

3 exercise of its police powers here. Plaintiff makes no allegations about what the volunteers said

4 to the individuals whom they assisted to enter the clinic. He does not allege that they did

5 anything other than assist patients - at the direction and with the consent of the facility -to enter

6 the facility. Such activities have no impact on plaintiffs First Amendment rights.

7

B. The Complaint Fails To State A Claim For Violation Of The Fourteenth

8

Amendment's Equal Protection Clause.

9

Plaintiffs Second Cause of Action purports to state a claim for violation of the Equal

10 Protection Clause of the· Fourteenth Amendment. Compl. ~~ 31-34. This claim fails for two

11 reasons. First, as described above, the Ordinance is content- and viewpoint-neutral. Contrary to

12 plaintiffs assertion, the Ordinance does not distinguish between "persons wishing to

13 communicate with those entering abortion clinics for the purposes of encouraging them to use

14 clinic services" and "persons wishing to communicate with those entering abortion clinics for the 15 purposes of encouraging them to choose options other than utilizing clinic services." Compl. ~

16 32. 17

Even if the Ordinance did burden only anti-abortion activists, that would not create a

18 cause of action for an equal protection violation. Anti-abortion activists are not a protected class

19 of persons. See Frontiero v. Richardson, 411 U.S. 677 (1973) (holding that gender is a protected

20 class); Korematsu v. United States, 323 U.S. 214 (1944) (holding that race is a protected class);

21 Graham v. Richardson, 403 U.S. 365 (1971) (holding that alienage is a protected class); Yick Wo

22 v. Hopkins, 188 U.S. 356 (1886) (holding that religion is a protected class). The Ordinance,

23 therefore, passes muster under the Equal Protection Clause as long as it is rationally related to a 24 legitimate government interest. See U.S. v. Carolene Products, 304 U.S. 144 (1938) (creating

25 the tiers of scrutiny and applying rational basis review to economic regulation); New York City

26 Transit Authority v. Beazer, 440 U.S. 568 (1979) (holding that government classifications of

27 non-protected classes are analyzed under rational basis review, in which the classification only

28 needs to be rationally related to a legitimate government interest).

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Case3:07-cv-06411-CRB Document44 Filed06/23/08 Page10 of 11

The City Council found that access to reproductive health care services "is a matter of

2 critical importance not only to the individual, but also to the health and welfare of all residents of

3 the City of Oakland." Comp!., Ex. A, at 2. The Supreme Court has held that a statute almost

4 identical to the Ordinance unquestionably protects legitimate state interests. See Hill, 730 U.S. at

5 715-16. Plaintiffh!!.s therefore not stated a claim for violation of the Equal Protection Clause.

6

C. The Complaint Fails To State A Claim For Violation Of The California

Constitution's Free Speech Provision.

7

8

Plaintiff's Third Cause of Action purports to state a claim for violation of the free speech

9 provisions of the California Constitution. Plaintiff has made absolutely no allegations, however,

10 explaining how the Ordinance itself or his treatment under the Ordinance violated the California

II Constitution, and therefore this claim should be disrnissed. See Miller, 260 F. Supp. 2d at 935

12 ("the federal procedural standards for notice pleading ... are liberal [but] they are not so liberal

13 as to allow purely conclusory statements to suffice to state a claim that can survive a motion to

14 d·ISI·TIlSS.. •.")•

15

D. The Complaint Fails To State A Claim For Violation Of The California

Constitution's Equal Protection Provision. 16

17

Plaintiff's Fourth Cause of Action purports to state a claim for violation of the equal

18 protection provisions of the California Constitution.3 As with his claim for violation of the free

19 speech provisions of the California Constitution, plaintiffs Fourth Cause of Action makes

20 absolutely no allegations explaining how the Ordinance violates his equal protection rights under

21 the California Constitution. This claim should therefore be dismissed.

22

23

24

25 3 The Fourth Cause of Action also references Article IV, Section 16 of the California

26

Constitution, which states that "alllaws of a general nature have uniform operation" and "[a] local or special statute is invalid in any case if a general statute can be made applicable."

27 Plaintiff cannot rely on this section, because it does not apply to municipal ordinances. In Re Application a/Lyons, 27 Cal. App. 2d 182,187 (Cal. App. 1938).

28

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E. The Complaint Fails To State A Claim For Violation Of The California Civil
Code.
2

3

Plaintiff's Fifth Cause of Action purports to state a claim for injunctive relief for

4 violation of plaintiffs rights under the United States and California Constitutions. As stated

5 above, plaintiff has not stated a claim for violation of any of his federal or state constitutional

6 rights. His Fifth Cause of Action therefore should also be dismissed.

7 IV. CONCLUSION

8

Oakland's Ordinance passes constitutional muster under the Supreme Court's decision in

9 Hill. None of plaintiff's allegations about the supposed legal commentary of Oakland police

10 officers or about the failure to arrest escorts working with clinic staff to assist patients entering

11 the facility alter this outcome. Just like the statute at issue in Hill, Oakland's Ordinance strikes

12 the appropriate balance between plaintiff's rights and the rights of patients seeking access to

13 reproductive health care. As the Supreme Court concluded in Hill, "Private citizens have always

14 retained the power to decide for themselves what they wished to read, and within limits, what

15 oral messages they wish to hear. This statute simply empowers private citizens entering a health

16 care facility to prevent a speaker, who is within eight feet and advancing, from communicating a

17 message they do not want to hear."

18

For all of the foregoing reasons, the Court should ilismiss Plaintiff's Complaint with

19 prejudice.

20 Dated: June 23, 2008 21
22
23 24
25 26 27
28
OHS Wcst:260460265.2

ANGELA 1. PADILLA SARAH C. MARRIOTT ERIN H. REDING ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ Angela 1. Padilla Angela 1. Padilla
Attorneys for Defendant City of Oakland

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COMPLAINT

 
 Case3:07-cv-06411-CRB Document152 Filed08/04/09 Page1 of 25

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 WALTER B. HOYE, II,

12

Plaintiff,

13 v.

14 CITY OF OAKLAND,

15

Defendant.

16

No. C 07-06411 CRB MEMORANDUM AND ORDER
/

17

Plaintiff Walter Hoye, a pro-life demonstrator, brought suit against Defendant City of

18 Oakland, challenging the constitutionality of Oakland Ordinance No. 12860, which creates

19 an eight-foot buffer zone or “bubble” around people seeking access to reproductive

20 healthcare clinics (“clinics”). Hoye claims that the ordinance is facially unconstitutional,

21 unconstitutional as applied, unconstitutionally vague, and a violation of the Equal Protection

22 Clause. Now pending before the Court are the parties’ cross-motions for summary judgment.

23 For the reasons set forth below, the Court GRANTS Defendant’s motion for summary

24 judgment and DENIES Plaintiff’s motion for summary judgment.

25 I. BACKGROUND

26

In the city of Oakland, California are multiple clinics which provide reproductive

27 healthcare services to women. Because one of those services is abortion, the clinics have

28 long been the sites of protest over the morality and legality of that medical procedure.

Though each protest, like each protestor, is different, there is a long history of protests

Case3:07-cv-06411-CRB Document152 Filed08/04/09 Page2 of 25

United States District Court For the Northern District of California

1 creating significant barriers to patient access at the Oakland clinics. The executive director

2 of one clinic described the protests as follows:

3

The anti-abortion protestors are so aggressive and invasive, that the [clinic] was

forced to stop operating on Saturdays due to excessive protesting. The [clinic] has

4

had situations where roughly three hundred protestors showed up to protest the

clinic’s abortion practices. Patients have had to climb through the back windows and

5

fire escapes of the [clinic] to obtain health services, because anti-abortion protestors

blockaded the front door of the clinic. Comy Decl. at 2.

6

The executive director of another clinic explained, “Before the Bubble Ordinance was

7

enacted, I witnessed protestors blocking the way of patients as they tried to enter the clinic. . .

8

. I have witnessed protestors swarming patient’s vehicles . . . thereby preventing the patients

9

from exiting the car and entering the clinic.” Barbic Decl. at 2. A security guard at one

10

clinic for the past three years stated:

11

Before the Ordinance was passed, I observed protestors approaching and talking to

12

patients . . . I often saw them approach cars and thrust their hands into the car

windows and doors to hand pamphlets to patients. I observed the protestors block car

13

doors so that patients could not get out of their cars outside the clinic. . . .I have

observed patients be chased to the front door of the clinic by protestors trying to talk

14

to them. Ali Decl. at 1-2.

15 Recent protests have varied in number. See Hoke Decl. at 3 (“I have seen between seven and

16 forty protestors outside the clinic since the Ordinance was passed”); and Barbic Decl. at 6

17 (“Recently, I have seen between three and forty protestors gathered outside the clinic”).

18

Plaintiff is a pro-life demonstrator in Oakland whose preferred means of pro-life

19 demonstration is to approach women heading into the clinic and ask, “May I talk with you

20 about alternatives to the clinic?” Plaintiff’s Mot. at 3. Plaintiff contends that he and some of

21 his fellow demonstrators do not block sidewalks or clinic entrances, and have never seen a

22 pro-life demonstrator who has. Hitchcock Supp. Decl. at 2, Downer Decl. at 2, Kendall

23 Decl. at 3, Hoye Supp. Decl. at 2. Accepting Plaintiff’s representations as true, not having

24 seen something does not mean it did or does not occur. Plaintiff protests outside just one

25 clinic just once a week. Hoye Supp. Decl. at 1. Moreover, Plaintiff concedes that he

26 sometimes approaches patients’ cars, though he disputes the characterization of “mobbing”

27 the cars or “thrusting [his] literature.” Hoye Supp. Decl. at 2. The characterization is

28

2

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United States District Court For the Northern District of California

1 subjective; while demonstrators might see nothing aggressive about approaching a patient’s

2 car, patients might experience the same action quite differently.

3

In December 2007, in response to more than ten years of complaints about protest

4 activities at Oakland clinics, City Council member Nancy Nadel introduced the Ordinance.

5 Nadel Decl. at 2. The City was concerned not only with women’s access to the clinics, but

6 also with the trauma and physical distress that demonstrators could cause to patients. See

7 also Laden Decl. Ex. 4 at 4 (10/23/07 letter to Oakland Public Safety Committee). The

8 City’s goal was to “balance the rights of free speech and expression with the rights of privacy

9 and unimpeded access to health care.” Nadel Decl. at 2. The City Council held four

10 meetings at which it heard testimony from both pro-choice and pro-life representatives.

11 City’s Mot. at 7 and Laden Decl. Exs. 7-10. Plaintiff was among the pro-life activists who

12 spoke at the meetings, and later said he felt he had a “huge impact” on the City Council.

13 Reding Decl. Ex. 3 at 12.

14

The original version of the Ordinance was passed in December 2007. Plaintiff’s

15 Request for Jud. Notice, Ex. C. Plaintiff filed this action that same month, alleging a civil

16 rights violation and seeking injunctive relief. In a December 2007 hearing on Plaintiff’s

17 application for a temporary restraining order, this Court expressed its concern that the

18 Ordinance contained impermissible viewpoint-based language, prohibiting only counseling

19 designed to “persuade [an] individual not to access . . . reproductive health services.” At this

20 Court’s strong suggestion, the City agreed to amend the Ordinance by removing that

21 language. Plaintiff’s Mot. at 12. In February 2008, the City passed the amended Ordinance

22 at issue in this case. Laden Decl. Ex. 2 at 6.

23

That amended Ordinance lists the relevant prohibited conduct under the heading of

24 “Prohibited Harassment of Individuals Seeking Access to Health Care Facilities.” Id. at 5.

25 Section 3(a) prohibits “force, threat of force, or physical obstruction” to “injure, harass,

26 intimidate, or interfere with . . . any person because that person . . . is . . . providing or

27 obtaining reproductive healthcare services.” Section 3(b) states: “Within 100 feet of the

28 entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly

3

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United States District Court For the Northern District of California

1 approach within eight (8) feet of any person seeking to enter such a facility, or any occupied

2 motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the

3 purpose of counseling, harassing, or interfering with such person or vehicle occupant.” Id.1

4 The Ordinance defines “eight feet” as being measured from “any extension of the body of the

5 individual seeking access” to “any extension of the body of, or any sign or object held by[,]

6 another person.” Id. at 4. And it defines “counseling” as “engaging in conversation with,

7 displaying signs to, and/or distributing literature to individuals seeking access to, passage

8 from, or services within the reproductive health care facility.” Id.

9

In May 2008, Plaintiff again sought a temporary restraining order, which the Court

10 denied.2 In August 2008, the Court denied the City’s motion to dismiss. The parties now

11 each seek summary judgment of Plaintiff’s claims that the Ordinance is facially

12 unconstitutional, unconstitutional as applied, unconstitutionally vague, and a violation of the

13 Equal Protection Clause. The Court will address each claim in turn.

14 II. STANDARD OF REVIEW

15

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

16 materials on file, and any affidavits show that there is no genuine issue as to any material fact

17 and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact

18 issue is “material” only if it could affect the outcome of the suit under the governing law.

19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact issue is genuine if the

20 evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

21

A principal purpose of the summary judgment procedure is to isolate and dispose of

22 factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The

23 party moving for summary judgment has the burden to show initially the absence of a

24 1There is also a Section 3(c), which prohibits approach within eight feet to injure or intimidate.
25 Id. It is not relevant here.

26

2Plaintiff was arrested on May 13, 2008 for violating the Ordinance on April 29, 2008, when five

witnesses saw Plaintiff approach within eight feet of at least eight different patients outside an Oakland 27 clinic to hand them fliers and harass them. City’s Mot. at 8. At one point, a clinic director used a

measuring tape to show Plaintiff that he was within eight feet of clinic patients. Id. On January 15, 28 2009, Plaintiff was convicted for violating the Ordinance. Id. That conviction is not the subject of this

motion.

4

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United States District Court For the Northern District of California

1 genuine issue concerning any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144,

2 159 (1970). Once the moving party has met its initial burden, the burden shifts to the

3 nonmoving party to establish the existence of an element essential to that party’s case, and on

4 which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S.

5 317, 323-24 (1986). To discharge this burden, the nonmoving party cannot rely on its

6 pleadings, but instead must have evidence showing that there is a genuine issue for trial. See

7 id. at 324.

8

Special rules of construction apply to evaluating summary judgment motions: (1) all

9 reasonable doubts as to the existence of genuine issues of material fact should be resolved

10 against the moving party; and (2) all inferences to be drawn from the underlying facts must

11 be viewed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pac.

12 Elec. Contractors Ass’n., 809 F.2d 626, 630-31 (9th Cir. 1987).

13 III. DISCUSSION

14

1. Whether the Ordinance is Content- or Viewpoint-Based

15

A. Facial Challenge

16

A government may impose reasonable restrictions on time, place, or manner of

17 protected speech, so long as the restrictions “are justified without reference to the content of

18 the regulated speech . . . are narrowly tailored to serve a significant governmental interest,

19 and . . . leave open ample alternative channels for communication.” Ward v. Rock Against

20 Racism, 491 U.S. 781, 791 (1989). Plaintiff argues that the Ordinance is content- and

21 viewpoint-based on its face because it was passed with discriminatory intent, is directed only

22 at reproductive healthcare clinics, and restricts “protest, education and counseling” while

23 leaving other speech unrestricted. Plaintiff’s Opp. at 12.3 However, the Supreme Court

24

25

3Plaintiff also argues that there is a genuine issue of material fact as to the need for the

Ordinance. Plaintiff’s Opp. at 15-16. This is not so. While Plaintiff disputes some of the individual 26 historical facts the City presented in support of the passage of the Ordinance, there is no genuine issue

of material fact as to whether there was, on the whole, sufficient evidence of historical access problems. 27 The evidence the City relied on was reasonably believed to be relevant to the problem it addressed. See

Gammoh v. City of La Habra, 395 F.3d 1114, 1126 (9th Cir. 2005); see also McCullen v. Coakley, 2009 28 WL 1942069 at *6 (1st Cir. 2009) (test for content-neutrality requires only that evidence support

legislature’s conclusion that regulation serves “a legitimate governmental interest unrelated to

5

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United States District Court For the Northern District of California

1 upheld the facial content-neutrality of an eight-foot bubble law nearly identical to the

2 Ordinance at issue here. See Hill v. Colorado, 530 U.S. 703 (2000). Accordingly, Plaintiff’s

3 facial challenge fails.

4

The City has introduced sufficient evidence that the problem it sought to address with

5 the Ordinance was not objectionable speech, but conduct that restricted patients’ access to

6 reproductive healthcare clinics. See, e.g., Laden Decl. Ex. 2 at 2 (Ordinance preamble states

7 that “persons attempting to access reproductive health care facilities . . . have been subject to

8 harassing or intimidating activity from extremely close proximity, tending to hamper or

9 impede their access to those facilities and services”). The Court recalls that the original

10 version of the Ordinance contained viewpoint-based language, but even assuming the illicit

11 legislative motive Plaintiff urges, courts “will not strike down an otherwise constitutional

12 statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391

13 U.S. 367, 383 (1968). The Court in Hill explained that “the contention that a statute is

14 ‘viewpoint based’ simply because its enactment was motivated by the conduct of the

15 partisans on one side of a debate is without support.” 530 U.S. at 724. See also Menotti v.

16 City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (“That Order No. 3 predominantly

17 affected protestors with anti-WTO views did not render it content based.”).

18

As in Hill, the Ordinance applies “equally to all demonstrators, regardless of

19 viewpoint, and the statutory language makes no reference to the content of the speech.” 530

20 U.S. at 719. And, as in Hill, “the State’s interest[] in protecting access . . . [is] unrelated to

21 the content of the demonstrators’ speech.” Id. at 719-20. Indeed, the Court in Hill found that

22 Colorado’s statute was “not a regulation of speech” but “a regulation of the places where

23 some speech may occur.” Id. at 719 (internal quotations omitted). Any speaker was

24 permitted to “attempt to educate unwilling listeners on any subject, but without consent may

25 not approach within eight feet to do so.” Id. at 723. The same is true here.

26

Plaintiff tries to distinguish Hill because the statute there applied to “any entity that is

27 licensed, certified, or otherwise authorized or permitted by law to administer medical

28 expressive content;” courts must give “significant” respect to legislature’s judgment).

6

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United States District Court For the Northern District of California

1 treatment in this state,” while the Ordinance here is limited to reproductive healthcare clinics.

2 Plaintiff’s Mot. at 15. Hill did comment favorably on the “comprehensiveness” of

3 Colorado’s statute. 530 U.S. at 731. More relevant, however, is the Court’s holding that:

4

[F]lawed is [the] theory that a statute restricting speech becomes unconstitutionally

content based because of its application to the specific locations where that discourse

5

occurs. A statute prohibiting solicitation in airports that was motivated by the

aggressive approaches of Hare Krishnas does not become content based solely

6

because its application is confined to airports– the specific locations where that

discourse occurs. 530 U.S. at 724 (internal quotations and citations omitted).

7

The Ordinance is not unconstitutional simply because it is limited to conduct within 100 feet

8

of the entrance of a reproductive healthcare clinic; the entrances of reproductive healthcare

9

clinics are where discourse about reproductive healthcare often occurs. See also McGuire v.

10

Reilly, 260 F.3d 36, 44 (1st Cir. 2001) (hereinafter “McGuire I”) (“We conclude, without

11

much question, that the Act’s stated goals justify its specific application to [reproductive

12

healthcare clinics]”).

13

Plaintiff’s argument that the statute is unconstitutional on its face because it restricts

14

“protest, education and counseling,” while leaving other types of speech unrestricted,

15

Plaintiff’s Mot. at 15, is also unavailing. Courts have long upheld regulations targeting

16

specific categories of speech as long as they meet the standards for permissible time, place

17

and manner regulations. See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.

18

357, 380 (1997) (upholding injunction prohibiting “demonstrations” around clinic entrances).

19

In Hill, as here, the plaintiff complained that “an individual near a health care facility

20

who knowingly approaches a pedestrian to say ‘good morning’ or to randomly recite lines

21

from a novel would not be subject to the statute’s restrictions,” and so “[b]ecause the content

22

of the oral statements made by the approaching speaker must sometimes be examined,” the

23

statute must be content-based. Hill, 530 U.S. at 720; see also Plaintiff’s Mot. at 16. The

24

Court dispensed with this argument, explaining,

25

It is common in the law to examine the content of a communication to determine the

26

speaker’s purpose. Whether a particular statement constitutes a threat, blackmail, an

agreement to fix prices . . . often depends on the precise content of the statement. We

27

have never held, or suggested, that it is improper to look at the content of an oral or

written statement in order to determine whether a rule of law applies to a course of

28

conduct. Id. at 721.

7

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1 The Court explained that while it might sometimes be necessary to examine the content of

2 statements made from within eight feet, “that review need be no more extensive than a

3 determination whether a general prohibition of ‘picketing’ or ‘demonstrating’ applies to

4 innocuous speech.” Id. While Oakland’s Ordinance will sometimes require a police officer

5 to examine the content of speech, that inquiry is permissible under Hill. 530 U.S. at 720-21.

6

The Ordinance is content- and viewpoint-neutral on its face.

7

Notably, Plaintiff asked this Court at the motion hearing and again in its post-hearing

8 supplemental brief to consider the testimony of Captain Toribio of the Oakland Police

9 Department, in addition to the Ordinance itself, as part of Plaintiff’s facial challenge. In

10 making this argument, Plaintiff relied principally on Forsyth County, Ga. v. Nationalist

11 Movement, 505 U.S. 123, 131 (1992), in which the Supreme Court stated that “[i]n

12 evaluating respondent’s facial challenge,” the Court would “consider the county’s

13 authoritative construction of the ordinance, including its own implementation and

14 interpretation of it.” But Forsyth does not support Plaintiff’s argument. The plaintiff in

15 Forsyth had argued that an ordinance “[did] not prescribe adequate standards” for an

16 administrator setting a permit fee, and so the Court looked to the county’s implementation of

17 the ordinance to try to find “narrowly drawn, reasonable and definite standards.” 505 U.S. at

18 130-33.

19

The cases relied on by Forsyth demonstrate that courts look beyond the face of a law

20 to its implementation in search of narrowing constructions. See Ward, 491 U.S. at 795-96

21 (“[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any

22 limiting construction that a state court or enforcement agency has proferred”); City of

23 Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988) (“when a state law has

24 been authoritatively construed so as to render it constitutional, or a . . . practice has

25 developed that has virtually the force of a judicial construction, the state law is read in light

26 of those limits . . . . even if the face of the statute might not otherwise suggest the limits

27 imposed”); Gooding v. Wilson, 405 U.S. 518, 524-28 (1972) (finding that nothing had been

28 done to narrow the construction of an overly broad statute). The two Ninth Circuit cases

8

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1 Plaintiff cited to in his supplemental brief apply Forsyth in this same context. See Desert

2 Outdoor Adver. Inc. v. City of Oakland, 506 F.3d 798, 802 (9th Cir. 2007) (noting court’s

3 obligation “to interpret a statute, if it is fairly possible, in a manner that renders it

4 constitutionally valid”); Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d

5 1022, 1035 (9th Cir. 2006) (discussing “limiting construction” of ordinance).

6

Courts search for narrowing constructions because, as the Court explained in Frisby v.

7 Schultz, 487 U.S. 474, 483 (1988), another case Plaintiff relies on, it is a “well-established

8 principle that statutes will be interpreted to avoid constitutional difficulties.” Plaintiff has

9 not directed this Court to any authority in which courts have looked beyond a facially

10 constitutional law to its implementation in order to find it facially unconstitutional. This

11 Court declines Plaintiff’s request that it do so here. See also McGuire v. Reilly, 386 F.3d 45,

12 58 (1st Cir. 2004) (hereinafter “McGuire II”) (“Logically, there is no way (save perhaps

13 when overbreadth is an issue) that an authority’s non-binding and non-authoritative

14 interpretation of a facially valid statute can make it more facially constitutionally vulnerable

15 than it would be otherwise”); McCullen v. Coakley, 2009 WL 1942069 at *13 (1st Cir.

16 2009) (“we do not believe that an official’s interpretation can render clear statutory language

17 vague so as to make the statute vulnerable to a facial . . . attack”). The City’s implementation

18 of the Ordinance, and Capt. Toribio’s testimony, are addressed below as part of Plaintiff’s as-

19 applied challenge.4

20

B. As-Applied Challenge

21

i. Actions of Clinic Escorts

22

Plaintiff argues that the Ordinance is content- and viewpoint-based as

23 applied, because it is enforced in such a way that it prohibits pro-life activists from

24 approaching women to ask if they would like to hear about alternatives to abortion, but

25 allows individuals Plaintiff describes as pro-choice activists to “invite women into the clinic,

26 tell them to disregard Plaintiff’s message, and advocate a pro-abortion position.” Plaintiff’s

27

28

4This is how Plaintiff addressed the matter in his briefing prior to the motion hearing. See

Plaintiff’s Opp. at 16.

9

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1 Mot. at 12-13. His chief complaint is with the presence and actions of clinic escorts, the

2 volunteers who help patients into the clinics. The Ordinance recognizes “volunteers who,

3 with the consent of the reproductive health care facility, assist in conducting patients of such

4 facility safely into the facility,” along with doctors, nurses and clinic employees, as

5 individuals who “[provide] reproductive health services.” Laden Decl. Ex. 2 at 4. The

6 Police Training Bulletin interpreting the Ordinance recognizes escorts as well. Laden Decl.

7 Ex. 6. at 2. To identify themselves, escorts wear orange vests, which the clinic stores. Cole

8 Decl. at 1. The escorts do not work for the clinic, but meet regularly with clinic staff. Barbic

9 Decl. at 4. The escorts work on an “as-needed basis,” only offering assistance when pro-life

10 protestors are present. Id.

11

Plaintiff states that the escorts “will approach [a patient], going right up to within a

12 couple of feet . . . and start talking to her.” Plaintiff’s Mot. at 5.5 He asserts that the escorts

13 “tell women not to listen to Plaintiff, that he is only there to harass her, that she will only be

14 safe with the escorts, and not to take his literature . . . because it is inaccurate.” Id. He

15 complains that escorts walk alongside the women, between him and the patients, and either

16 talk to the patients, or “simply make noise to drown out Plaintiff’s voice.” Id. He also states

17 that on some occasions he has seen escorts snatch his literature out of the women’s hands.

18 Hoye Supp. Decl. at 3. See also Hitchcock Supp. Decl. at 3; Downer Decl. at 3; Kendall

19 Decl. at 3.

20

As an initial matter, simply facilitating a patient’s access to reproductive healthcare

21 services is not pro-choice advocacy. If it were, the Supreme Court in Hill could not have

22 found that Colorado’s bubble statute, which was, among other things, intended to facilitate

23 access, was either content- or viewpoint-neutral. See 530 U.S. at 725. If it were, the First

24 Circuit in McGuire I could not have found that Massachusetts’s bubble statute, which

25

26

5Barbara Hoke, the escort coordinator, presents a different picture, stating that the escorts “ask

for consent to assist the patient into the clinic.” Hoke Decl. at 2. She states that the escorts immediately 27 back away if the patients decline their offers of help, that escorts speak softly to avoid intimidating

patients, and that if a patient is present, the escorts “do not engage the protestors in conversation.” Id. 28 Nevertheless, for the purpose of this Order, the Court will construe all facts in the light most favorable

to Plaintiff.

10

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1 explicitly exempted clinic agents and employees, was either content- or viewpoint-neutral.

2 260 F.3d at 46 (“since a primary purpose of the law is to facilitate safe access, the employee

3 exemption serves the basic objectives of the Act”).6 See also McCullen, 2009 WL 1942069

4 at *7 (finding, as to the Massachusetts law that replaced the law at issue in the McGuire

5 cases, that “exception for persons associated with [reproductive healthcare clinics] remains

6 reasonably related to the legislature’s legitimate public safety objectives”). Escorts who

7 simply facilitate access are thus distinct from the hypothetical pro-choice demonstrator

8 imagined by Justice Kennedy in Hill who “chants in praise of the Supreme Court and its

9 abortion decisions.” 530 U.S. at 725.

10

Nor does simply facilitating access violate the Ordinance, which forbids the knowing

11 and unconsented approach within eight feet of a patient “for the purpose of counseling,

12 harassing, or interfering.” Laden Decl. Ex. 2 at 5. Escorts who approach women for the

13 purpose of facilitating their access into a clinic are not approaching “for the purpose of

14 counseling, harassing, or interfering.” This is so even under the Ordinance’s broad definition

15 of counseling, which includes “engaging in conversation with.” Id. at 4. Engaging in

16 conversation with patients is secondary to facilitating access, and allowing escorts to talk to

17 patients for the limited purpose of facilitating patient access is consistent with the

18 Ordinance’s purpose.

19

To the extent that escorts deviate from their role of simply facilitating access and

20 engage instead in pro-choice advocacy, they do so in violation of the Ordinance. In such a

21 scenario, the escorts would be approaching patients “for the purpose of counseling,

22 harassing, or interfering.” See Laden Decl. Ex. 2 at 5. Plaintiff cannot prevail on his as-

23 applied challenge without first providing proof that this has happened. Thus the court in

24 McGuire I, 260 F.3d at 47, a facial challenge, invited plaintiffs to return with an as-applied

25 challenge to the Massachusetts bubble statute “if, as the plaintiffs predict, experience shows

26 that clinic staffers in fact are utilizing the exemption as a means either of proselytizing or of

27

28

6The Ordinance here has no escort exemption, but does recognize escorts as people who provide

reproductive health services and are thus protected under Section 3(a).

11

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1 engaging in preferential pro-choice advocacy.” In their as-applied challenge three years

2 later, McGuire II, 386 F.3d at 50-52, plaintiffs complained of escorts’ actions that are

3 remarkably similar to Plaintiff’s complaints here: escorts sometimes told patients they did not

4 need to listen to the pro-life protestors, took the pro-life protestors’ literature out of patients

5 hands, chattered loudly to drown the pro-life protestors out, and “repeated ‘[p]ro-abortion

6 rhetoric,’ such as ‘We have help. We’ll help you get inside.” The court found that such

7 actions by the escorts “are not violations of the Act.” Id. at 64-65.

8

Plaintiff has provided no evidence that escorts have ever, as he claims, “advocate[d] a

9 pro-abortion position.” See Plaintiff’s Mot. at 12-13. Of course, the City’s declarants say

10 that “escorts do not engage in abortion-related speech when volunteering as escorts,” and that

11 escorts “do not counsel patients.” See, e.g., Hoke Decl. at 2; see also Barbic Decl. at 4

12 (“Patients do not consult with escorts about any medical decisions.”). Neither side contends

13 that escorts wear clothing conveying political messages, distribute fliers, or hold signs

14 displaying a message. Plaintiff’s support for this assertion consists simply of the City’s

15 alleged lack of an enforcement policy for escorts (discussed below), Barbara Hoke’s

16 deposition testimony about Plaintiff’s leaflets, given in Plaintiff’s criminal trial, and the

17 escort’s flexible, self-written guidelines, an exhibit to Hoke’s deposition. Plaintiff’s Opp. at

18 17. The Court declines to take judicial notice of the deposition testimony given by clinic

19 escorts in Plaintiff’s criminal trial. Such testimony is hearsay and does not meet the

20 requirements of the former testimony exception in Federal Rule of Evidence 804(b)(1).

21 There is no evidence that any of the escorts are unavailable, and the City did not have a

22 similar motive to develop the escorts’ testimony in Plaintiff’s criminal trial as it would in the

23 present case.7 Even if the guidelines were admissible evidence, they are not proof that

24 escorts engaged in advocacy.

25

Nevertheless, Plaintiff’s proof does go beyond that in McGuire II. Specifically,

26 Plaintiff states that at times when he has held a sign stating, “Jesus loves you and your baby.

27

28

7The Court does take judicial notice of Plaintiff’s testimony in his criminal case, as it is a party

admission. Fed. R. Evid. 801(d)(2).

12

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1 Let us help,” escorts have held blank signs in front of it. Plaintiff’s Mot. at 6. The Court

2 viewed with great displeasure video clips taken over the course of two days in which escorts

3 can be seen intermittently walking alongside Plaintiff and blocking Plaintiff’s sign with their

4 own, all-white signs. See Millen Decl. Ex.D. Other pro-life demonstrators have also had

5 their signs blocked. Hitchcock Supp. Decl. at 2; Kendall Decl. at 2. While the Court

6 believes that the escorts are motivated by a desire to minimize patients’ distress, the Court

7 considers it a violation of the Ordinance for escorts to hold signs in front of demonstrators’

8 signs in a knowing attempt to block demonstrators’ messages. This is so even if the signs the

9 escorts hold are blank, and even if the escort holding the blank sign is herself more than eight

10 feet away from a patient, so long as she is working in concert with an escort who is actively

11 escorting a patient.8 The Court notes that this practice appears to have been sporadic, see

12 Lubin Decl. Ex. 3 (video footage taken from the same days as Plaintiff’s video footage,

13 showing Plaintiff holding sign without being blocked); Hitchcock Supp. Decl. at 2 (“[o]ther

14 times, they would . . . [block] our signs”); and Cole Decl. Exs. 2 and 3 (photographs from

15 March 2009 showing unencumbered display of pro-life signs/messages outside Oakland

16 clinics), and that the City represented at the motion hearing that it has ceased.9

17

ii. State Action

18

Despite the evidence that escorts did not always act “as escorts” and

19 simply facilitate patient access, Plaintiff’s as-applied challenge has a fatal flaw. Just as in

20 McGuire II, 386 F.3d at 60, what Plaintiff objects to is purely private action, and “[t]he First

21 Amendment is concerned with government interference, not private jousting in the speech

22 marketplace.” As the First Circuit explained, “there is no state action if what the plaintiff is

23 really aiming at are the acts of private persons that are actually illegal under the statutory

24

25

26

8Of course, escorts also may not physically block demonstrators; the Ordinance, not the escorts,

should protect patients from unconsented approaches within eight feet for improper purposes. 27

9In support of this contention, the City cited to the testimony of escort Lucy Kasdin in Plaintiff’s 28 criminal trial. As already discussed, the Court declines to take judicial notice of such testimony, as it

is hearsay.

13

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1 scheme, because then the acts do not reflect the policy of the state.” Id. Plaintiff’s fight is

2 with the escorts; he has failed to show unlawful action by the City.

3

Plaintiff must show that although the law is facially neutral, the City is applying it in a

4 viewpoint discriminatory manner. See id. (“[t]he only challenge they have left in this case is

5 to the way the law has been enforced”). He must show a pattern of unlawful favoritism. See

6 Thomas v. Chi. Park Dist., 534 U.S. 316, 325 (2002) (“Granting waivers to favored speakers

7 (or, more precisely, denying them to disfavored speakers) would of course be

8 unconstitutional, but we think that this abuse must be dealt with if and when a pattern of

9 unlawful favoritism appears.”). Though the clinics have presumably been open for several

10 hundred days since the amended Ordinance was passed in February 2008, Plaintiff points to

11 just two incidents that he claims demonstrate selective enforcement of the Ordinance.

12

First, he argues that Deputy City Attorney Vicki Laden was present at one clinic on

13 April 29, 2008, after which she notified police that Plaintiff had violated the Ordinance that

14 day, but did not mention “that escorts were approaching patients and speaking to them.”

15 Plaintiff’s Mot. at 10. Plaintiff does not reveal the contents of the escorts’ statements to the

16 patients that day, and there is no indication that the speech constituted pro-choice advocacy,

17 let alone that Laden was aware of such advocacy. In fact, in the City’s responses to

18 Plaintiff’s second set of requests for admission, the City explicitly denied that Vicki Laden

19 had witnessed escorts approaching within eight feet of patients without consent for the

20 purpose of engaging them in conversation. Millen Decl. Ex. H at 4. The City’s actions

21 therefore appear to be consistent with the Ordinance.

22

Second, Plaintiff relates an incident on June 3, 2008 in which demonstrator Virginia

23 Hitchcock witnessed “escorts approaching women heading toward the clinic, without the

24 women’s consent, and speaking to them.” Plaintiff’s Mot. at 10. This is the only example

25 Plaintiff provides of pro-life demonstrators calling the police to report the alleged misdeeds

26 of escorts. Hitchcock and a friend (Mary Arnold) notified the police, who responded and

27 explained that the escorts were not subject to the Ordinance because they are “professionals.”

28 Id. at 10-11. In fact, Hitchcock testified in her deposition simply that “there was a lot of

14

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1 activity with the escorts and the staff” and that she had not seen anything she thought was

2 illegal. Reding Decl. Ex .2 at 13. She also testified that upon arriving, the police “talked to

3 the escorts and the staff,” Id. at 14-15, presumably investigating her report. Plaintiff

4 submitted no evidence that the escorts’ speech that day was pro-choice advocacy, or that the

5 police were aware of any such advocacy. The officer’s statement that the escorts are

6 “professionals,” as well as Hitchcock’s deposition testimony that the police said “it doesn’t

7 apply to them,” either reflects the police’s misstatement of the law (the Ordinance does apply

8 to escorts who are not acting as escorts), or the police’s conclusion that the escorts had been

9 acting as escorts. The latter is at least as reasonable an interpretation, as even Hitchcock had

10 not seen anything she thought was illegal.

11

Notably, the only evidence in the record that the police were aware that escorts

12 sometimes held blank signs in front of demonstrators’ signs is also from the July 3, 2008

13 incident. In an email Mary Arnold wrote about the incident, she mentioned that she had told

14 the responding officer that since the ordinance was passed, she had “witnessed one escort . . .

15 hold up a large sign in order to prevent women from reading [Plaintiff’s] sign.” Reding Decl.

16 Ex. 1 at 38. Arnold’s email describes the officer as being “pleasant and courteous” and

17 saying, “It’s best if a judge decides but I do want the report to be made.” Id. The record

18 does not reflect whether Arnold ever followed up on this. Aside from the incidents of

19 April 29, 2008 and June 3, 2008, Plaintiff is forced to argue not about how the Ordinance has

20 been enforced, but about how it might be enforced in the future. Plaintiff points to the

21 30(b)(6) testimony of Captain Toribio of the Oakland Police Department, who testified about

22 the City’s interpretation of the Ordinance. Toribio testified that it would not be a violation of

23 the Ordinance for an escort to tell a woman, “It’s your right to have an abortion.” Millen

24 Decl. Ex. F at 57. Toribio agreed that “the City’s Enforcement Policy is not to enforce the

25 Bubble Ordinance against escorts acting as escorts.” Millen Decl. Ex. F at 48. He also said:

26 “if the escort is performing within or doing something within the scope of their duties to

27 facilitate entrance and exit, there are no concerns.” Reding Decl. Ex. 4 at 14-15.

28

15

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1

It is consistent with both the Ordinance and Hill not to enforce the Ordinance against

2 escorts who are “acting as escorts”– that is, escorts who are simply facilitating patient access.

3 However, the Court finds that, provided the other requirements of Section 3(b) were met,

4 Capt. Toribio was wrong when he testified that it would not violate the Ordinance for an

5 escort to tell a patient, “It’s your right to have an abortion.” See Millen Decl. Ex. F at 57.

6 While such a statement arguably facilitates access, it goes beyond that narrow function and

7 may constitute “counseling” under the Ordinance. See Laden Decl. Ex. 2 at 5.10 Toribio’s

8 testimony was given in response to a question which Defendant’s counsel objected to as

9 speculative and an incomplete hypothetical. Certainly it was that (an escort could

10 permissibly tell a woman it was her right to have an abortion if the two were standing in line

11 at a supermarket across town from a clinic), but more importantly, it is not evidence that

12 escorts make such statements, or that the police turn a blind eye to them. An answer to a

13 hypothetical is not evidence that discrimination has occurred. See, e.g., Boyd v. City of

14 Oakland, 458 F. Supp. 2d 1015, 1043 (N.D. Cal. 2006) (police captain’s conjectural

15 responses to hypothetical questions did not constitute admissible evidence of discrimination).

16 As in McGuire II, “there is no evidence that the police turned a blind eye toward pro-abortion

17 speech while not turning a blind eye to possible transgressions by plaintiff[].” 386 F.3d at

18 65.

19

Plaintiff has provided no evidence that the police have targeted pro-life demonstrators.

20 Compare Menotti, 409 F.3d at 1148 (finding genuine issue of material fact as to whether

21 police were unfairly targeting only anti-WTO protestors). He claims that no clinic escort

22 having been arrested or prosecuted for violating the Ordinance is evidence of disparate

23 enforcement. Plaintiff’s Mot. at 11. Of course it is not, barring any evidence that escorts

24 violated the Ordinance and that police were aware of it. Moreover, the only arrest Plaintiff

25 cites to of a pro-life demonstrator under the Ordinance is his own, following repeated

26
10Escorts may of course say such things as: “would you like help getting into the clinic,” “the 27 clinic is this way,” “you can follow me to the clinic,” and “the clinic opens in 10 minutes.” The
distinction between these statements and “it’s your right to have an abortion” is that the latter purports 28 to advise the woman about her rights and arguably addresses not only her access to the clinic but what
she could or should do once inside it.

16

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1 violations. City’s Mot. at 22. In fact, Plaintiff testified that the police have “been great,

2 actually . . . . they[] hear our side of it, their side of it.” See Reding Decl. Ex. 3 at 14-15.

3 Plaintiff has not demonstrated a pattern of selective enforcement. See Brown v. City of

4 Pittsburgh, 543 F. Supp. 2d 448, 486 (W.D. Penn. 2008) (holding that plaintiff failed to show

5 a pattern of unlawful behavior based on two incidents of police enforcement of city bubble

6 ordinance).

7

Plaintiff has failed to demonstrate that the City is enforcing the Ordinance in a

8 discriminatory manner; the Ordinance is content- and viewpoint-neutral as applied to

9 Plaintiff.

10

2. Whether the Ordinance is Narrowly Tailored to Serve the Asserted

Governmental Interest

11

The Ordinance must also be narrowly tailored to serve a significant government

12

interest. Ward, 491 U.S. at 791. Plaintiff argues that protecting women’s access to

13

reproductive healthcare clinics is not a significant interest, and that the City has not justified

14

the Ordinance. Plaintiff’s Mot. at 23-24. Plaintiff characterizes Madsen v. Women’s Health

15

Ctr., Inc., 512 U.S. 753 (1994) as having found that “the interest in protecting access to an

16

abortion clinic did not justify a restriction on unconsented approaches.” Id. at 24. But the

17

Court in Madsen cited approvingly a Florida Supreme Court holding that “the State has a

18

strong interest in protecting a woman’s freedom to seek lawful medical or counseling

19

services in connection with her pregnancy,” and found that interest and other relevant

20

interests “quite sufficient to justify an appropriately tailored injunction to protect them.” 512

21

U.S. at 767-68. That the Court went on to find that a prohibition of any unconsented

22

approach within 300 feet of a clinic was not narrowly tailored, Id. at 760, 773-74, is not

23

dispositive here, where the Ordinance only prohibits approaches within eight feet of patients

24

who are within 100 feet of a clinic entrance. Laden Decl. Ex. 2 at 5.

25

Moreover, the Court in Hill acknowledged that the state’s interest in protecting the

26

health and safety of its citizens “may justify a special focus on unimpeded access to health

27

care facilities and the avoidance of potential trauma to patients associated with

28

confrontational protests.” 530 U.S. at 715. The Court went on to hold:

17

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1

Persons who are attempting to enter health care facilities– for any purpose– are often

in particularly vulnerable physical and emotional conditions. The State of Colorado

2

has responded to its substantial and legitimate interest in protecting these persons

from unwanted encounters, confrontations, and even assaults by enacting an

3

exceedingly modest restriction on the speakers’ ability to approach. Id. at 729.

4

The City enacted the Ordinance in response to more than ten years’ of complaints

5 about protest activities at Oakland clinics, following four separate meetings at which it heard

6 testimony from both pro-choice and pro-life representatives, and having concluded that

7 “existing federal and state laws do not adequately protect the rights of those seeking or

8 providing reproductive health care services.”11 Laden Decl. Ex. 2 at 3. See Nadel Decl. at 2;

9 City’s Mot. at 7; Laden Decl. Exs. 7-10. The City’s interests in protecting women’s access

10 to reproductive healthcare clinics is thus both justified and “substantial and legitimate” under

11 Hill.

12

Plaintiff also asserts that the Ordinance is not narrowly tailored to restrict only

13 unwanted approaches. Plaintiff’s Mot. at 25-29. He urges a reading of Hill in which the

14 Court “did not understand the statute to prohibit the speaker from approaching in the absence

15 of the person taking some action to prevent that approach.” Plaintiff’s Mot. at 26. This

16 reading is incorrect. The bubble statute in Hill also expressly prohibiting approach without

17 consent. 530 U.S. at 708 n.1.

18

Plaintiff urges that the Ordinance is not narrowly tailored to prohibit unconsented

19 approaches, but all approaches, due to “the layout of the sidewalk and street surrounding the

20 clinic” and the limited window he has to reach patients who are dropped off in front of the

21 clinic. Plaintiff’s Mot. at 27-28. He claims a “necessity of approaching significantly closer

22 than eight feet in order to communicate with women seeking to enter the clinic.” Id. at 28.

23 This argument also fails, as Hill approved an eight-foot bubble ordinance without limitation

24 to particular physical settings. 530 U.S. at 703. Just as in Menotti, 409 F.3d at 1133-34,

25

26

11See also Laden Decl. Ex. 4 at 5-6 (10/23/07 letter to Oakland Public Safety Committee,

explaining among other things that California’s FACE law does not prohibit harassing or counseling 27 as defined in the Ordinance and does not establish a zone of protection around an individual); and Hill,

530 U.S. at 729 (“the statute’s prophylactic aspect is justified by the great difficulty of protecting, say, 28 a pregnant woman from physical harassment with legal rules that focus exclusively on the individual

impact of each instance of behavior.”).

18

Case3:07-cv-06411-CRB Document152 Filed08/04/09 Page19 of 25

United States District Court For the Northern District of California

1 where the Ninth Circuit found that an order “covered only enough territory for the WTO

2 delegates and the President to move safely from their hotels to the [WTO] convention and

3 lasted only during the conference,” the Ordinance is narrowly tailored to only limit

4 approaches within eight-feet of people entering the clinic, thus allowing safe access. See

5 also McCullen, 2009 WL 1942069 at *7-11 (finding that law establishing a 35-foot buffer

6 zone around reproductive healthcare clinics was narrowly tailored). The Court also notes

7 that while Plaintiff appears to take a relatively mild-mannered approach to demonstrating, the

8 Ordinance must take into account that not all demonstrators or potential demonstrators are

9 Plaintiff. The Ordinance is narrowly tailored.

10

3. Whether the Ordinance Leaves Open Ample Alternative Channels of

Communication

11

A content-neutral time, place and manner restriction that is narrowly tailored to serve

12

a significant government interest must also leave open ample alternative means of

13

communication. Ward, 491 U.S. at 798. Plaintiff argues that while the Court in Hill, a facial

14

challenge, found that “[s]igns, pictures, and voice itself can cross an 8-foot gap with ease,”

15

530 U.S. at 729, they cannot so easily reach patients in Oakland. Plaintiff’s Mot. at 17-18.

16

Plaintiff complains of the escorts blocking his sign, standing between him and patients, and

17

making noise to drown out his voice. Id. at 18. He complains about the City’s enforcement

18

policy, which he claims bars him from standing still and lifting his arm to hand a patient a

19

leaflet. Id. at 19. And he complains that the City’s enforcement policy permits an escort to

20

essentially veto a patient’s consent to Plaintiff’s approach. Id. at 20. Plaintiff also argues

21

that the eight-foot bubble makes it “virtually impossible to start up a conversation with

22

someone from eight feet away,” and that there “is no substitute or ‘ample alternative’ to

23

approaching . . . a person . . . to strike up a conversation.” Id. at 22. Plaintiff testified that

24

being required to stay eight feet away from the patients “just wouldn’t seem natural” and

25

“would seem impolite.” Reding Decl. Ex. 3, at 6. Plaintiff also complains that “the brief

26

period of time to speak to women entering the clinic is insufficient to ask for consent to

27

approach” since many women are dropped off just outside the clinic. Plaintiff’s Mot. at 3-4.

28

19

Case3:07-cv-06411-CRB Document152 Filed08/04/09 Page20 of 25

United States District Court For the Northern District of California

1

Addressing these concerns in reverse order, while Plaintiff might prefer to express

2 himself by striking up a polite conversation with patients from a close distance, “the First

3 Amendment does not guarantee the right to communicate one’s views . . . in any manner that

4 may be desired.” Menotti, 409 F.3d at 1138 (internal citations omitted). Plaintiff has no

5 right to communicate at a polite (i.e., close) distance. See Colacurcio v. City of Kent, 163

6 F.3d 545, 548 (9th Cir. 1998) (rejecting argument that because “table-dancing” is a “unique

7 form of expression,” ten-foot distance requirement amounts to a complete ban on a unique

8 form of expression); McCullen, 2009 WL 1942069 at *9 (“the Constitution neither

9 recognizes nor gives special protection to any particular conversational distance”).

10

Nothing in the Ordinance prevents Plaintiff from approaching within eight feet of an

11 escort for the purpose of communicating with a patient. Section 3(b) provides that “it shall

12 be unlawful to willfully and knowingly approach within eight (8) feet of any person seeking

13 to enter such a facility. . . without the consent of such person . . . for the purpose of

14 counseling, harassing, or interfering with such person.” See Laden Decl. Ex. 2 at 5

15 (emphasis added). However, under Section 3(a), one may not use force, threat of force, or

16 physical obstruction– at any distance– to harass any person providing reproductive health

17 services, including escorts. Id. This is consistent with the Training Bulletin, which identifies

18 escorts on its list of protected individuals. Laden Decl. Ex. 6 at 2. It is also consistent with

19 Hill. 530 U.S. at 708 n.1 (ordinance prohibited unconsented approach of “another person,”

20 not limited to patients). Nothing prevents a demonstrator from approaching within eight feet

21 of an escort if the approach is not to harass “that person” but to communicate with a patient

22 eight feet away.

23

Next, nothing in the Ordinance prevents a demonstrator from leafleting, provided the

24 demonstrator is eight feet away from an unconsenting patient. The Ordinance defines “eight

25 feet” as measured from any extension of the body. Laden Decl. Ex. 2 at 4. The City’s

26 Training Bulletin is consistent with this. Laden Decl. Ex. 6 at 3. Capt. Toribio’s testimony,

27 Millen Decl. Ex. F at 84, that a demonstrator who stands still but lifts his arm toward a

28 patient is “approaching” that patient, is consistent with the Ordinance; provided the

20

Case3:07-cv-06411-CRB Document152 Filed08/04/09 Page21 of 25

United States District Court For the Northern District of California

1 demonstrator’s outstretched arm is eight feet from the patient, that is not a violation. As in

2 Hill, nothing in the Ordinance prevents a leafletter “from simply standing near the path of

3 oncoming pedestrians and proffering his or her material, which the pedestrians can easily

4 accept.” See 530 U.S. at 727.

5

Most importantly, while Plaintiff does not have all of his preferred channels of

6 communication open to him, he still has ample alternative channels. He can speak to patients

7 from eight feet away without their consent, from within eight feet with their consent, or from

8 within eight feet regardless of consent beyond 100 feet of clinic entrances.12 The Court in

9 Hill held that eight feet “allows the speaker to communicate at a ‘normal conversational

10 distance,’” and, though Hill was a facial challenge, the Court imagined that there might be

11 background noise and other speakers competing for patients’ attention. 530 U.S. at 726-27.

12

Indeed, Plaintiff admits that he “has had some success in engaging in conversation” –

13 his preferred means of expression– “with patients since the Ordinance passed,” though he

14 hastens to add that “his successes were ‘many more’ before the Ordinance.” Plaintiff’s Opp.

15 at 9. As already discussed, while there is evidence that escorts sometimes held signs in front

16 of Plaintiff’s sign, this practice appears to have happened only sporadically. As in Hill, the

17 Ordinance places no limitations on signs’ “number, size, text or images,” or on “the number

18 of speakers or the noise level” of oral protest. 530 U.S. at 726.

19

The evidence shows that pro-life demonstrators continue to get their message across.

20 See, e.g., Hoke Decl. at 3-4 (“The protestors are impossible to miss. . . . I have observed the

21 protestors holding large signs . . . . I have seen a pickup truck with pro-life stickers parked

22 across the street. . . . The protestors are very loud. They sing songs, pray, and pass out

23 fliers.”); Barbic Decl. at 6 (“I have seen . . . protestors carry large signs that can be read from

24 across the street. They pass out pamphlets. The protestors sing and pray. Their voices

25 easily carry across the street and can be heard inside and outside the clinic.”); and Quan

26
12The Court notes that Plaintiff argued at the motion hearing that the Ordinance creates a “super27 escort privilege” by taking the eight-foot bubble from Hill and applying it within 100 feet from the
clinic’s entrance. But the statute in Hill also dealt with an eight-foot bubble that operated within 100 28 feet of a facility’s entrance. 530 U.S. at 708 n.1. The Court characterized that statute as “an
exceedingly modest restriction on the speakers’ ability to approach.” Id. at 729.

21

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United States District Court For the Northern District of California

1 Decl. Exs. 1 and 2 (photographs of pro-life protestors gathered outside Oakland clinic in

2 March 2009). This is sufficient. See Menotti, 409 F.3d at 1138 (“Given the protestors’

3 ability to communicate directly across the street from most WTO venues, and given the

4 violence that Order No. 3 was aimed at preventing, we think the better analysis favors the

5 conclusion that Order No. 3 provided ample alternatives for communication.”); McCullen,

6 2009 WL 1942069 at *9 (finding ample alternative channels of communication where law

7 provided for 35-foot buffer zone around reproductive healthcare facilities, because

8 demonstrators “can speak, gesticulate, wear screen-printed T-shirts, display signs, use

9 loudspeakers, and engage in the whole gamut of lawful expressive activities” from 35-feet

10 away).13

11

4. Whether the Ordinance is Unconstitutionally Vague As Applied

12

Plaintiff next argues that the Ordinance is unconstitutionally vague as applied.

13 Plaintiff’s Mot. at 29. A statute is vague if it either “fails to provide people of ordinary

14 intelligence a reasonable opportunity to understand what conduct it prohibits” or “authorizes

15 or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732.

16

Some of Plaintiff’s concerns are plainly without merit. There is nothing

17 unconstitutionally vague about “vehicle[s] seeking entry” to the clinic. See Laden Decl. Ex.

18 2 at 5. As vehicles cannot drive into clinic waiting rooms, the term is properly interpreted as

19 vehicles pulling up to the clinic’s parking lot or curb. Similarly, while “approach” is not

20 defined in the Ordinance, its definition in the Training Bulletin (“to come near or nearer to”)

21 is the common definition. See id., Laden Decl. Ex 6 at 4. That a demonstrator who stands

22 still but lifts his arm toward a patient is considered to be “approaching” that patient is both

23 logical and consistent with the Ordinance’s measurement of eight feet “from any extension of

24

25

13The Court rejects the argument in Plaintiff’s supplemental brief that Edwards v. City of Coeur

D’Alene, 262 F.3d 856, 866-67 (9th Cir. 2001) shows that the Ninth Circuit takes a more jealous view 26 of the “ample alternatives” prong than does the First Circuit. Plaintiff’s Supp. Brief at 3-4. The Ninth

Circuit in Edwards struck down a ban on the use of wooden sticks to hold up signs carried during 27 parades and assemblies, but did so because at “mass gatherings,” “it is often difficult to see more than

a few feet in any direction, or to hear anyone who isn’t standing nearby.” 262 F.3d at 867. Plaintiff has 28 not demonstrated that an eight-foot bubble outside clinic entrances presents the same obstacles to

communication as a crowded parade.

22

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United States District Court For the Northern District of California

1 the body.” Laden Decl. Ex. 2 at 4. See also Hill, 530 U.S. at 733. Also “consent,” though

2 undefined in the Ordinance, is certainly clear; “[t]he likelihood that anyone would not

3 understand [such a] common word[] seems quite remote.” See id. at 732.

4

Plaintiff accurately notes that while Section 3(b) of the Ordinance refers to persons

5 “seeking to enter” a clinic, the Training Bulletin states (and Capt. Toribio testified) that the

6 Ordinance is interpreted to include persons both entering and exiting. Plaintiff’s Mot. at 30.

7 The omission does not render the Ordinance unconstitutionally vague. The Ordinance

8 defines “interfering,” prohibited by Section 3(b), to include “access” and “egress,” and

9 defines “counseling,” prohibited by Section 3(b), to include persons “seeking access to” or

10 “passage from” clinics. Laden Decl. Ex. 2 at 4 and 5. It also defines “eight feet,” the

11 distance identified in Section 3(b), as relating to a person “seeking access to” or “passage

12 from” a clinic. Id. Thus a person of ordinary intelligence would understand that, as in Hill,

13 530 U.S. at 708 n.1, the ordinance “as a whole” prohibits interference with persons both

14 entering and exiting clinics. See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

15

Plaintiff complains again that it is unclear under the Ordinance whether he can

16 approach within eight feet of an escort walking with a patient when his intent is only to

17 communicate with the patient, and whether he can approach within eight feet of an escort

18 standing alone in front of the clinic. Plaintiff’s Mot. at 31-32. As already discussed, the

19 Ordinance does not prevent a demonstrator from approaching within eight feet of an escort–

20 standing or walking– if the approach is not to harass “that person” but to communicate with

21 someone else eight feet away.

22

A closer question is what kind of communication is permissible under the Ordinance

23 between a demonstrator and an unconsenting escort (or patient) within eight feet. Plaintiff’s

24 Mot. at 31. Plaintiff disputes the City’s assertion that a demonstrator could approach an

25 escort to talk about the Super Bowl “because the protestor would not be harassing the

26 escort,” noting that “the City overlooks its own extremely broad definition of ‘harassing.’”

27 Plaintiff’s Reply Brief at 14. Indeed the City’s definition of harassing includes “counseling,”

28

23

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United States District Court For the Northern District of California

1 and its definition of “counseling” includes “engaging in conversation with.” Laden Decl. Ex.

2 2 at 4.

3

This raises a legitimate concern about overbreadth, but it is not fatal. First, the court

4 in Hill, 530 U.S. at 732, found in reference to Colorado’s statute that “protest, education, or

5 counseling” were common words, and that it seemed “quite remote” that anyone would not

6 understand them. Sections 3(a) and 3(b) fall under the heading of “Prohibited Harassment,”

7 and the Ordinance’s preamble states that “persons desiring or needing access to [reproductive

8 health care services] should not be intimidated, hampered, impeded, harassed, or restrained

9 from obtaining those services.” Laden Decl. Ex. 2 at 2, 5. It is clear that, as a whole, the

10 Ordinance prohibits interference with access, not casual conversation about the Super Bowl.

11 See Grayned, 408 U.S. at 110; and Hill, 530 U.S. at 740 (Souter, J. concurring) (“Someone

12 planning to spread a message by accosting strangers is likely to understand the statute’s

13 application to ‘education.’”). Second, as in Hill, 530 U.S. at 732, Oakland’s Ordinance

14 contains a scienter requirement that should ameliorate any concern that persons of ordinary

15 intelligence would be trapped by arguably vague language. See Laden Decl. Ex. 2 at 5.

16 Third, as in Thomas, 534 U.S. at 324-325, where Plaintiffs complained that the criteria in the

17 ordinance was “insufficiently precise,” any abuse in enforcement is better addressed “if and

18 when a pattern of unlawful favoritism appears.” See also Grayned, 408 U.S. at 110

19 (“condemned to the use of words, we can never expect mathematical certainty from our

20 language”) and Ward, 491 U.S. at 794 (“perfect clarity and precise guidance have never been

21 required even of regulations that restrict expressive activity”).

22

Accordingly, the Ordinance is not unconstitutionally vague.

23

5. Whether the Ordinance Violates the Equal Protection Clause

24

Plaintiff’s final argument, that the Ordinance violates the Equal Protection Clause,

25 rests on his contention that “the Ordinance allows speech or speakers favoring abortion

26 greater latitude than the speech or speakers favoring alternatives to abortion.” Plaintiff’s

27 Opp. at 25. Arguing that the Ordinance impinges on a fundamental right (speech), Plaintiff

28 urges the Court to apply strict scrutiny. Plaintiff’s Mot. at 33-34. This argument also fails.

24

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United States District Court For the Northern District of California

1

The Court has already found that the Ordinance is content- and viewpoint-neutral.

2 Strict scrutiny is “inappropriate where a law regulating speech is content-neutral, even where

3 the speech at issue was non-commercial.” Maldonado v. Morales, 556 F.3d 1037, 1048 (9th

4 Cir. 2009). “At most” the Ordinance needs to survive an intermediate level of scrutiny. See

5 id. The Ordinance is substantially related to an important government objective: the Court in

6 Hill, 530 U.S. at 729, found that protecting access to healthcare is both substantial and

7 legitimate. The Ordinance thus “easily passes the necessary scrutiny to overcome

8 [Plaintiff’s] equal protection challenge.” See Maldonado, 556 F.3d at 1048. The First

9 Circuit reached the same conclusion in McGuire I, 260 F.3d at 50, holding that “the Act

10 passes muster under the Equal Protection Clause for the same reasons that it passes muster

11 under the First Amendment.”

12 IV. CONCLUSION

13

For the foregoing reasons, the Court GRANTS Defendant’s motion for summary

14 judgment and DENIES Plaintiff’s motion for summary judgment.

15

IT IS SO ORDERED.

16

17 Dated: August 4, 2009 18

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

19

20

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G:\CRBALL\2007\6411\orderreMSJs.wpd

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 Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page1 of 10

1 Michael Millen Attorney at Law (#151731)
2 119 Calle Marguerita Ste. 100 Los Gatos, CA 95032
3 Telephone: (408) 871-0777 Fax: (408) 516-9861
4 mikemillen@aol.com
5 Catherine Short, Esq. Life Legal Defense Foundation
6 P .O. Box 1313 Ojai, CA 93024-1313
7 (805) 640-1940
8 Attorneys for Plaintiff
9

10

11

UNITED STA TES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13 W ALTER B. HOYE, II,

NO.: C07-06411 CRB

14

Plaintiff,

15

v.

16 CITY OF OAKLAND,

17

Defendant.

18

19

20

SECOND AMENDED COMPLAINT FOR CIVIL RIGHTS VIOLATION AND INJUNCTIVE AND DECLARATORY RELIEF;
DEMAND FOR JURY TRIAL
1. 42 U.S.C. § 1983 [Free Speech] 2. 42 U.S.C. §1983 [Equal Protection] 3. California Constitution, Art. I, §2 4. California Constitution, Art. I, §7 5. California Civil Code §52.1

21

22

Plaintiff alleges as follows:

23

1. Plaintiff Walter B. Hoye, II, is a natural person. Motivated by his moral, religious,

24 and political beliefs, plaintiff has regularly engaged in pro-life, anti-abortion speech activities within

25 the City. These speech activities include hand-to-hand leafleting, education about abortion, and

26 holding signs which say things like “God loves you & your baby / Let us help you”. All of these

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 1

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page2 of 10

1 activities occur on public sidewalks or other public fora, where he can convey his message to the

2 public.

3

2. Defendant CITY OF OAKLAND ("City") is a municipal corporation organized under

4 the laws and Constitution of the State of California, and is a corporate entity capable of suing and

5 being sued. Defendant City maintains and operates the City of Oakland Police Department which,

6 in the first instance, is responsible for the enforcement of the ordinance in question and the arrest of

7 person alleged to have violated it.

8

3. JURISDICTION: This Court has jurisdiction over this action pursuant to Title 28

9 U.S.C. §§1331 and 1343(3) in that the controversy arises under the United States Constitution and

10 under 42 U.S.C. §1983 and 28 U.S.C. §§2201 and 2202. This Court has authority to award

11 attorneys fees pursuant to 42 U.S.C. §1988. Plaintiff further invokes the supplemental jurisdiction

12 of this Court under 28 U.S.C. §1367(a) to hear and adjudicate state law claims. Each and all of the

13 acts (or threats of acts) alleged herein were done by defendants, or their officers, agents, and

14 employees, under color and pretense of the statutes, ordinances, regulations, customs and usages of

15 the City of Berkeley.

16

4. INTRADISTRICT ASSIGNMENT: V enue is proper in this district under 28 U.S.C.

17 §1391(b) because a substantial part of the events giving rise to the claims in this action occurred in

18 this district.

19

5. On or about December 18, 2007, the City adopted Municipal Code Chapter 8.50,

20 entitled “Access to Reproductive Health Care Facilities” (herein the “ original ordinance”). On

21 December 18, 2007, Plaintiff filed this action challenging the constitutionality of the original

22 ordinance. Following a hearing on Plaintiff’s Application for Temporary Restraining Order, the City,

23 through its attorneys, agreed not to enforce the original ordinance and to amend that ordinance. On

24 February 5, 2008, the City amended Chapter 8.50. A copy of the amended ordinance (hereinafter

25 the “Ordinance”) is attached to this Amended Complaint as Exhibit A.

26

6. Violation of the Ordinance is a criminal misdemeanor under §4(a).

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 2

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page3 of 10

1

7. The law enforcement arm of the City is the Oakland Police Department (“OPD”). It is

2 the OPD which actually interprets, enforces, and arrests persons who have allegedly violated the

3 Ordinance.

4

8. The OPD has a set of regulations which supposedly govern its enforcement of the

5 Ordinance. The regulations are contained in a “Training Bulletin”, the current version of which is

6 dated May 1, 2008, and attached hereto as Exhibit B.

7

9. In practice, OPD enforces and interprets the Ordinance in various and conflicting ways,

8 with the effect a person can never be particularly sure whether their conduct will or will not be

9 charged as a violation of the Ordinance. Some of the interpretations violate the constitutional

10 norms set forth in Hill v. Colorado, 530 U.S. 703 (2000), for example:

11

A. On March 25, 2008, at approximately 8:30 a.m. in front of an abortion clinic, an OPD

12 officer explained to plaintiff and others present that the Ordinance created a “moving bubble zone”

13 so that any time plaintiff was standing within 100 feet of the clinic, he had to move more than 8 feet

14 away from any person who approached him or was going into the clinic. The police were clear that

15 failure to abide by this interpretation would make plaintiff subject to arrest for violation of the

16 ordinance. Plaintiff’s counsel communicated to the City attorney this interpretation, and the City

17 attorney has never communicated back to plaintiff’s counsel that such is not the official policy of the

18 OPD. While on May 29, 2008, an attorney for the City stated in a legal brief that “[t]he Ordinance

19 expressly applies onlywhen speakers . . . approach individuals near the clinic – notwhen they

20 merely remain stationary”, the City has offered no assurance that the OPD has changed its policy to

21 conform to the City’s legal briefing.

22

B. On May 13, 2008, shortly after 10:00 a.m. in front of an abortion clinic, an OPD officer

23 told plaintiff that he was not allowed to approach or be within 8 feet of escorts, clinic personnel, or

24 clients. The officer intended for plaintiff to understand that merely being within 8 feet of escorts,

25 clinic personnel, or clients within the 100’ zone would result in his arrest. Plaintiff’s counsel has

26 informed the City attorney of this OPD interpretation, and the City attorney has never denied that

27 such is the official policy of the OPD. While on May 29, 2008, an attorney for the City stated in a

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 3

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page4 of 10

1 legal brief that “[t]he Ordinance expressly applies onlywhen speakers . . . approach individuals near

2 the clinic – not when they merely remain stationary”, the City has offered no assurance that the

3 OPD has changed its policy to conform to the City’s legal briefing.

4

C. On June 3, 2008, between 9:10 a.m. and 9:31 a.m. in front of an abortion clinic, a

5 witness observed two different clinic escorts, whom plaintiff alleges on information and belief are

6 volunteers, approaching within 8 feet of persons entering the clinic and speaking to them without

7 obtaining their consent. The witness called OPD at 9:34 a.m. to report this apparent violation of the

8 Ordinance. The dispatching officer asked for descriptions of the alleged offenders and also asked if

9 one was a certain male “because if he is there, there is an ordinance against him and he should not

10 be there.” At around 10:05 a.m. Officer V . Johnson responded. After learning of the situation, the

11 Officer responded that the escorts were “professional people” so it was permissible for them to

12 approach patients. The next day the witness again spoke with Officer Johnson who said he was not

13 filing an official report about the incident. Officer Johnson stated that his supervisor, who is

14 Sergeant David Elzey, explained that volunteer clinic escorts were “protected individuals” who

15 could not be charged with violating the Ordinance by approaching clients to converse. On June 5,

16 2008, plaintiff’s counsel communicated Sgt. Elzey’s interpretation to the City attorney via email.

17 The City attorney responded back to the email but did not in any way deny or discount the policy

18 set forth by Sgt. Elzey.

19

10. Plaintiff has already been arrested once for allegedly violating the Ordinance and is at

20 risk to be arrested again. Plaintiff contends that he is the individual whom the OPD dispatcher

21 specifically noted as to whom the ordinance was against, and that the police will arrest him

22 according to the interpretations they have given as set forth above. The OPD itself, has never

23 disavowed any of the three interpretations mentioned in the preceding paragraph, and the City

24 attorney has not disavowed the last interpretation. Plaintiff reasonably fears that he will be arrested

25 by OPD for conduct which is not prohibited by the Ordinance and/or otherwise protected by the

26 U.S. Constitution.

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 4

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page5 of 10

1

11. The OPD has an unwritten policy exempting from the reach of the Ordinance any

2 person who approaches and speaks to clients for the purposes of encouraging them to use clinic

3 services. That same unwritten policy holds that plaintiff is to be arrested if he approaches and speaks

4 to clients for the purposes of encouraging them to choose options other than utilizing clinic services.

5 This is a form of content and viewpoint discrimination.

6

12. The Ordinance, both as written and as enforced by defendant, is content- and viewpoint-

7 based, abuses governmental power, denies free speech in a traditional public forum, does not further

8 any important or substantial government interest, and imposes restrictions that are greater than

9 necessary to further any government interest asserted.

10

13. Specifically but not exclusively, the ordinance is content-based because the main

11 purpose in enacting it was to suppress speech of a certain content and because it differentiates

12 speech based on the content of the speech. This includes, without limitation, the fact that the

13 ordinance elevates commercial speech over non-commercial speech by restricting “protest,

14 education, and counseling” but not other forms of speech such as panhandling and vending.

15

14. Specifically but not exclusively, the Ordinance is not narrowly tailored to serve any

16 significant governmental interest and imposes restrictions that are greater than necessary to further

17 such interests because, on its face and as applied, it restricts uninvited approaches as well as

18 unwanted and unwelcome approaches.

19

15. Any interest advanced by defendant to support the Ordinance is related to the

20 suppression of constitutional and statutory rights and is also minor compared to the infringement of

21 rights worked by the Ordinance.

22

16. Unless and until defendants are restrained by order of this Court, defendants, acting

23 through their officers, servants, agents and employees, will enforce the Ordinance.

24

17. Unless and until this Court declares the Ordinance unconstitutional, defendant, acting

25 through its officers, servants, agents and employees, will enforce the Ordinance.

26

18. All of the acts of the defendant, its officers, agents, servants, and employees, as alleged

27 herein, were done or are threatened to be done under color and pretense of the statutes, ordinances,

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 5

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page6 of 10

1 regulations, customs, official policies, official procedures, and usages of the City of Oakland and the

2 State of California.

3

19. Plaintiff is suffering irreparable injury from the enforcement and threat of enforcement of

4 the Ordinance, and will continue to suffer irreparable injury until the threat of enforcement is lifted.

5

6

FIRST CAUSE OF ACTION

7

(42 U.S.C. § 1983: FREE SPEECH AND DUE PROCESS)

8

20. Plaintiff incorporates by reference all preceding paragraphs as if fully restated here.

9

21. The Ordinance is an unconstitutional abridgment on its face, and as applied or threatened

10 to be applied, of the plaintiff’s affirmative rights to freedom of speech under the United States

11 Constitution, First and Fourteenth Amendments.

12

22. The Ordinance, on its face and as applied or threatened to be applied, is an

13 unconstitutionally overbroad restriction on expressive activity.

14

23. The Ordinance, on its face and as applied or threatened to be applied, is an

15 unconstitutionally vague restriction on expressive activity.

16

24. The Ordinance, on its face and as applied or threatened to be applied, is a content-based

17 and viewpoint-based restriction on speech.

18

25. The Ordinance, on its face and as applied or threatened to be applied, does not serve a

19 significant governmental interest.

20

26. The Ordinance, on its face and as applied or threatened to be applied, does not leave

21 open ample alternative channels of communication.

22

27. The Ordinance, on its face and as applied or threatened to be applied, is neither narrowly

23 tailored nor the least restrictive means to accomplish any permissible governmental purpose sought

24 to be served by the legislation.

25

28. The Ordinance fails to adequately advise, notify, or inform persons threatened with

26 possible prosecution for violation of their requirements. Therefore, the Ordinance is

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 6

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page7 of 10

1 unconstitutionally vague, on its face and as applied or threatened to be applied, in violation of the

2 due process guarantee of the Fourteenth Amendment to the United States Constitution.

3

29. The Ordinance is an irrational and unreasonable statute, imposing unjustifiable

4 restrictions on the exercise of protected constitutional rights. Because the Ordinance is irrational

5 and unreasonable, its application violates the due process guarantee of the Fourteenth Amendment

6 to the Untied States Constitution

7

30. The Ordinance, on its face and as applied or threatened to be applied, violates the Equal

8 Protection Clause of the Fourteenth Amendment to the United States Constitution and similar

9 guarantees in the California State Constitution by denying plaintiff free speech rights allowed to

10 others in similar situations and other protections of state and federal law.

11

SECOND CAUSE OF ACTION

12

(42 U.S.C. SECTION 1983: EQUAL PROTECTION)

13

31. Plaintiff incorporates by reference paragraphs 1 – 30 as if fully set forth herein.

14

32. The Ordinance, on its face and as applied or threatened to be applied, violates the Equal

15 Protection Clause of the Fourteenth Amendment. Specifically but not exclusively, the Ordinance

16 creates three classes: Persons entering abortion clinics, persons wishing to communicate with those

17 entering abortion clinics for the purposes of encouraging them to use clinic services, and persons

18 wishing to communicate with those entering abortion clinics for the purposes of encouraging them

19 to choose options other than utilizing clinic services.

20

33. These classifications have a direct bearing on the fundamental interest in free speech.

21 The City has no compelling interest justifying the creation of these classes and cannot show that

22 these classifications are necessary to serve any legitimate governmental interest.

23

34. The Ordinance singles out persons approaching abortion clinics as a class to be

24 specifically isolated from speech, and correspondingly burdens the speech of that class of persons

25 wishing to encourage them to choose options other than utilizing clinic services. These

26 classifications have a direct bearing on the fundamental interest in free speech. The City has no

27

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 7

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page8 of 10

1 compelling interest justifying the creation of these classes and cannot show that these classifications

2 are necessary to serve any legitimate governmental interest.

3

4

THIRD CAUSE OF ACTION

5

(VIOLATION OF CALIFORNIA CONSTITUTION, ARTICLE I, SECTION 2)

6

35. Plaintiff incorporates paragraphs 1- 34 as if fully set forth herein.

7

36. The Ordinance, on its face and as applied or threatened to be applied, violates Article I,

8 Section 2 of the California Constitution.

9

10

FOURTH CAUSE OF ACTION

11

(VIOLATION OF EQUAL PROTECTION, CALIFORNIA CONSTITUTION

12

ARTICLE I, SECTION 7 AND ARTICLE IV , SECTION 16)

13

37. Plaintiff incorporates paragraphs 1- 36 as if fully set forth herein.

14

38. The Ordinance, on its face as applied or threatened to be applied, violates Article I,

15 section 7 and Article IV , section 16 of the California Constitution.

16

17

FIFTH CAUSE OF ACTION

18

(VIOLATION OF CALIFORNIA CIVIL CODE §52.1)

19

39. Plaintiff incorporates paragraphs 1- 38 as if fully set forth herein.

20

40. The Ordinance, on its face and as applied or threatened to be applied, interferes with

21 plaintiff’s exercise of the right to free speech and to assembly guaranteed by the First Amendment of

22 the United States Constitution and Article I, §2 of the California Constitution, his right to be free

23 from unlawful search and seizure guaranteed by the Fifth and Fourteenth Amendments to the United

24 States Constitution and Article I, §13 of the California Constitution, his rights under California’s 25 Unruh Act to be free from unlawful discrimination, and his equal protection rights under the 1t4h

26 Amendment to the United States Constitution. This was and is a violation of California Civil Code

27 §52.1.

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 8

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page9 of 10

1

41. Unless enjoined by this Court, defendants will continue to infringe plaintiff’s

2 constitutionally protected rights and thereby cause irreparable injury, as damages alone cannot fully

3 compensate plaintiff for the ensuing harm. This threat of injury from continuing violations requires

4 injunctive relief.

5

6

7

WHEREFORE, plaintiff prays that this Court:

8

(a) Enter judgment against the defendant;

9

(b) A ward nominal damages against the defendant and in favor of the plaintiff;

10

(c) Enter a declaratory judgment declaring the acts of the defendant to be a violation of

11 plaintiff’s constitutional rights to freedom of speech, equal protection, and due process;

12

(d) Issue a declaratory judgment declaring that Oakland Municipal Code Chapter 8.50 is

13 unconstitutional on its face;

14

(e) Issue a declaratory judgment declaring that Oakland Municipal Code Chapter 8.50 is

15 unconstitutional as enforced and as applied;

16

(f) Issue a temporary restraining order, and a preliminary and permanent injunction

17 enjoining defendants, their agents, servants, employees, officers and the City of Oakland Police

18 Department from enforcing Oakland Municipal Code Chapter 8.50;

19

(g) A ward plaintiff costs, interest and reasonable attorneys’ fees for this action pursuant to

20 42 U.S.C. §1988 and other relevant statutes; and,

21

(h) Order such other and further relief as the Court deems just and proper under the

22 circumstances.

23

24

25 Dated: February 4, 2009

26

MICHAEL MILLEN, ESQ.

27

ATTORNEY FOR PLAINTIFF

28
Michael Millen, Esq. 119 Calle Marguerita #100
Los Gatos, CA 95032 (408) 871-0777

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 9

Case3:07-cv-06411-CRB Document74 Filed04/07/09 Page10 of 10

1

2

JURY DEMAND

3

Plaintiff hereby requests a jury trial in this matter.

4

5 Dated: February 4, 2009

6

MICHAEL MILLEN, ESQ.

7

ATTORNEY FOR PLAINTIFF

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

SECOND AMENDED COMPLAINT

C07-06411 CRB

Page 10

Case3:07-cv-06411-CRB Document74-1 Filed04/07/09 Page1 of 5 Appro1ve as to Form and Legality

L r t i d f

City Attorney

os ar I 1

3 Io

AMENDED

OAKLAND CITY COUNCIL
Ordinance1N2o884 M S

Introduced by Councilmembers Nancy J Nadel Jane Brunner and Jean Quan

AN ORDINANCE AMENDING TITLE 8 OF THE CITY OF

OAKLAND MUNICIPAL CODE BY ADDING A NEW

CHAPTER 8 50 ENTITLED ACCESS TO REPRODUCTIVE

HEALTH CARE FACILITIES AND NEW SECTIONS 8 5 010 0

THROUGH

TO PROTECT ACCESS TO

REPRODUCTIVE HEALTH CARE FACILITIES AND

CREATING A PRIVATE RIGHT OF ACTION FOR

VIOLATIONS OF THIS CHAPTER

WHEREAS safe and unimpeded access to reproductive health care services is critically and uniquely important to the public health safety and welfare so that persons desiring or needing access to such services should not be intimidated hampered impeded harassed or restrained from obtaining those services and
WHEREAS persons attempting to access reproductive health care facilities to obtain reproductive health care services have been subject to harassing or intimidating activity from extremely close proximity tending to hamper or impede their access to those facilities and services
and
WHEREAS such activity in close proximity subverts the right to privacy of those seeking reproductive health care services aright that is protected by the United States Constitution and the Freedom of Access to Clinic Entrances Act U S CSection 248 and is explicitly guaranteed in C s alifornia Constitution Article I Section 1 including the right to seek and obtain all health care services permitted under the laws of this State and
WHEREAS such activity interferes with a ps erson right to seek reproductive health care services and counseling which such persons are entitled to seek and obtain and
WHEREAS offices and facilities that have patient stays ofshorter duration maybe more vulnerable to such subversion of rights on account of the layout and design of their facilities and parking areas as well as their staff deployment and

Case3:07-cv-06411-CRB Document74-1 Filed04/07/09 Page2 of 5

WHEREAS the facilities with the fewest resources for providing adequate security and safety to individuals seeking access to reproductive health services are those not affiliated with hospitals and

WHEREAS the adverse physiological and emotional effects created by such harassing or intimidating activities may pose health risks interfere with medical treatment diagnosis or recovery or cause persons to delay or forego medical treatment and
WHEREAS this Ordinance does not preclude all protesting picketing demonstrating leafleting or educational activities near a facility providing reproductive health care services and in particular is not intended to preclude any lawful picketing leafleting a o nr d free speech but is a necessary c no en uttern atl time place and manner restriction intended to reconcile and protect the rights of persons rendering or seeking reproductive health care with the First Amendment rights of demonstrators and

WHEREAS existing federal and state laws do not adequately protect the rights of those seeking or providing reproductive health care services now therefore

THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS

Chapter 8 50 is added to the Oakland Municipal Code to read as follows

Sec Sec Sec Sec Sec Sec

Title and Purpose
Definitions
Prohibited Harassment of Individuals Seeking Access to Health Care Facilities
Enforcement
Accommodation of Competing Rights Severability

Section 1 Title and Purpose This chapter shall be known as the access to reproductive health care facilities ordinance The City Council finds that every person in the City of Oakland has a basic and fundamental right to privacy protected by the United States Constitution and explicitly guaranteed in C s alifornia Constitution Article 1 Section 1 including the right to seek and obtain all health care services permitted under the laws of this State Central to this right is the need to secure access to all reproductive health care services Access to these services is a matter of critical importance not only to the individual but also to the health and welfare of all residents ofthe City of Oakland and the region Intentional efforts to harass an individual or prevent that individual from exercising his or her right to seek and obtain reproductive health care services are therefore contrary to the interests of the people ofOakland
This Ordinance is not intended to create any limited designated or general public fora Rather it is intended to protect those who seek access to constitutionally protected reproductive health services from conduct which violates their rights

Case3:07-cv-06411-CRB Document74-1 Filed04/07/09 Page3 of 5

Section 2 Definitions

a

Reproductive health services refers to all medical surgical counseling referral

and informational services related to

the termination ofapregnancy whether such services
are provided in a clinic ps hysician office or other facility other than a licensed hospital but not if provided at a clinic or other facility owned a o nr d operated by a licensed hospital

b

Reproductive health care facility refers to a facility licensed pursuant to Chapter 1

commencing with Section 1200 ofDivision 2 ofthe Health and Safety code or any

other facility that provides p reproductive health services that is not licensed

as a hospital and is not owned a o nr d operated by a licensed hospital

Vic Harassing means the n conso ensn ual and knowing approach within eight feet of another person or occupied motor vehicle for the purpose of passing a leaflet or handbill to display a sign to or engage in oral protest education or counseling with such other person in a public way or on a sidewalk area within 100 feet of the entrance of a reproductive health care facility

mod

Interfering means to restrict a ps erson freedom of movement or access to or egress from a reproductive heath care facility

Vie Counseling means engaging in conversation with displaying signs to a o nr d

distributing literature to individuals seeking access to passage from or services

within the reproductive health care f f e acilitya a s t er

o

a

a o o

f

Eight feet shall be measured from any extension of the body of the individual

seeking access to passage from or services within the reproductive health care

facility a o nr d the exterior ofany occupied motor vehicle to any extension ofthe

body of or any sign or object held by another person

Wig Providing reproductive health services shall include doctors nurses any employee
of a reproductive health care facility and volunteers who with the consent of the reproductive health care facility assist in conducting patients ofsuch facility safely into the facility

Case3:07-cv-06411-CRB Document74-1 Filed04/07/09 Page4 of 5

Section 3 Prohibited Harassment of Individuals Seeking Access to Health Care Facilities

a

It shall be unlawful to use force threat of force or physical obstruction to

intentionally injure harass intimidate or interfere with or attempt to injure harass

intimidate or interfere with any person because that person will be is or has been

providing or obtaining reproductive health services

b

Within 100 feet of the entrance of a reproductive health care facility it shall be

unlawful to willfully and knowingly approach within eight 8 feet of any person

seeking to enter such a facility or any occupied motor vehicle seeking entry without

the consent of such person or vehicle occupant for the purpose of counseling

harassing or interfering with such person or vehicle or ccupant

iv eYiv ri avv ruiYvoe v uav as

uvi v uvui ua

vi ivi uiv

c

Within 100 feet of the entrance of a reproductive health care facility it shall be

unlawful to willfully and knowingly approach within eight 8 feet of any person

seeking to enter such a facility or any occupied motor vehicle seeking entry for the

purpose ofinjuring or intimidating such person or vehicle occupant in connection

with seeking reproductive health services

Section 4 Enforcement

a

Any person who shall be convicted of a violation of subsection 3 above shall be

deemed guilty of a misdemeanor and shall be punishable by imprisonment in the

County jail for not more than one year or by a fine not to exceed two thousand

dollars 2 000 or by both such fine and imprisonment

b

Civil Remedies

Any person providing seeking to provide or seeking reproductive health services who is aggrieved by conduct prohibited by this ordinance may
commence a civil action in the Courts of the State ofCalifornia

ii

In any action commenced under subparagraph a of this subsection the court

may award appropriate relief including temporary preliminary or permanent injunctive relief and compensatory and exemplary damages and reasonable

fees for attorneys and expert witnesses With respect to damages at anytime
before final judgment plaintiff may elect to recover in lieu ofcompensatory damages an award of statutory damages in the amount of 5 000 per

violation

Case3:07-cv-06411-CRB Document74-1 Filed04/07/09 Page5 of 5

Section 5 Accommodation of Competing Rights In adopting this legislation the Oakland City Council recognizes both the fundamental constitutional right to assemble peacefully and to demonstrate on matters of public concern as well as the right to seek and obtain health care This legislation promotes the full exercise of these rights and strikes an appropriate accommodation
between them
Nothing in this Ordinance shall be construed to prohibit any expressive conduct including peaceful picketing or other peaceful demonstration protected from legal prohibition by the First Amendment to the United States Constitution the California Constitution or any federal or
California statute

Section 6 Severability If any part provision or clause ofthis Ordinance or the application thereof to any person or circumstance is held to be invalid by a court ofcompetent jurisdiction all other provisions and clauses hereof including the application ofsuchprovisions and clauses to other persons or circumstances shall not be affected thereby and shall continue in full force and effect To this end the provisions ofthis Chapter are severable

IN COUNCIL OAKLAND CALIFORNIA
PASSED BY THE FOLLOWING VOTE

E 5 2005

AYES NOES

BROOKS BRUNNER CHANG KERNIGHAN NADEL QUAN REID and

PRESIDENT DE LA FUENTE

l U

ABSENT

ABSTENTION
Introduction mate J1 A 5 2008

AT ITb TES 1 2
LaTonda Simmons
City Clerk and Clerk of the Council of the City of Oakland California

111

III K

4
I
l

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 ANGELAL. PADILLA (CASTATE BARNO. 154863) SARAH C. MARRIOTT (CA STATE BARNO. 241301) 2 ERIN H. REDING (CA STATE BAR NO. 252691)
3 ORRICK, HERRlNGTON & SUTCLIFFE LLP 405 Howard Street
4 San Francisco, CA 94105 Telephone: 415-773-5700
5 Facsimile: 415-773-5759

6 JOHN A. RUSSO (CA STATE BAR NO. 129729)
7 VICKI LADEN (CA STATE BAR NO. 130147) CITY OF OAKLAND
8 I Frank Ogawa Plaza, 6th Floor Oakland, CA 94612
9 Telephone: 510-238-4941
Facsimile: 510-238-6500 10

11

Attorneys for Defendant CITY OF OAKLAND

12

13

UNITED STATES DISTRlCT COURT

14

NORTHERN DISTRlCT OF CALIFORNIA

15 16 WALTER B. HOYE, II,

CASE NO. C07-06411 CRB

17

Plaintiff,

18

v.

19 CITY OF OAKLAND

20

Defendant.

21

[PROPOSI!:Dj ORDER DENYING PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

22

23

24

25

26

27

28
[PROPOSED] ORDER DENYIN'G PLAfNTJFF~S APPI..JCATION FOR TRO AND ORDER TO SHOW CAUSE

June 24, 2008

UNITED S ALIFORNIA

OURT NORTH

TATES DISTRICT C IT IS SO ORDERED
Judge Charles R. Breyer
ERN DISTRICT OF C

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

United States District Court For the Northern District of California

11 WALTER B. HOYE, II,

12

Plaintiff,

13 v.

14 CITY OF OAKLAND,

15

Defendant.

16

No. CV 07-06411 CRB ORDER DENYING APPLICATION FOR INJUNCTION PENDING APPEAL
/

17

Now pending before the Court is Plaintiff’s Application for Injunction Pending

18 Appeal, pursuant to FED. R. CIV. P. 62(c). Plaintiff seeks to enjoin enforcement of Oakland

19 Municipal Code § 8.50.010 (“the Ordinance”) pending appeal. Under Hilton v. Braunskill,

20 481 U.S. 770, 776 (1987), the Court is to consider four factors in ruling on such an

21 application: “(1) whether the stay applicant has made a strong showing that he is likely to

22 succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)

23 whether issuance of the stay will substantially injure the other parties interested in the

24 proceeding; and (4) where the public interest lies.”

25

The Court agrees that “[t]he loss of First Amendment freedoms, for even minimal

26 periods of time, unquestionably constitutes irreparable injury.” See Elrod v. Burns, 427 U.S.

27 347, 373 (1976). However, granting an injunction may risk injury to patients who seek

28 access to Oakland’s reproductive healthcare facilities– access which the Ordinance aims to

protect. In addition, the public interest lies in balancing the right to free speech and

United States District Court For the Northern District of California

1 expression with the right to access reproductive healthcare; granting an injunction would

2 skew that balance. Most importantly, the Court finds, as articulated in its twenty-five page

3 Order granting summary judgment for Defendant, that Plaintiff has failed to make a strong

4 showing that he is likely to succeed on the merits. Plaintiff’s Application has not convinced

5 the Court otherwise. Accordingly, Plaintiff’s Application is DENIED. The hearing currently

6 scheduled for October 9, 2009 is hereby VACATED.

7

IT IS SO ORDERED.

8 Dated: September 30, 2009
9
10

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

11

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G:\CRBALL\2007\6411\orderrestay.wpd

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3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

United States District Court For the Northern District of California

11 WALTER B. HOYE, II,

12

Plaintiff,

13 v.

14 CITY OF OAKLAND,

15

Defendant.

16

No. CV 07-06411 CRB ORDER RE TRAINING MATERIALS
/

17

In July 2011, the Ninth Circuit affirmed in part and reversed in part this Court’s order

18 granting summary judgment for Defendant, the City of Oakland, concluding that, although

19 Defendant’s bubble ordinance was constitutional on its face, the City’s enforcement policy

20 was a constitutionally invalid, content-based regulation of speech. See Hoye v. Oakland, 653

21 F.3d 835, 859 (9th Cir. 2011). The Ninth Circuit’s opinion turned on its finding that “[t]he

22 City’s policy of distinguishing between speech that facilitates access to clinics and speech

23 that discourages access is not content-neutral.” Id. at 851. The case was remanded to this

24 Court “with instructions to grant Hoye’s motion for summary judgment in part and to grant

25 him relief consistent with this opinion.” Id. at 859.

26

Defendant has submitted revised training materials, which consist of a training

27 bulletin and the script of a training video. See generally dkt. 197. Plaintiff argues that the

28 revised training materials are unconstitutional. See generally dkt. 201. The Court has

United States District Court For the Northern District of California

1 carefully considered the Ninth Circuit’s opinion, the revised training materials, and the

2 papers and arguments of the parties, and makes the following holding.

3

The revised training materials are adequate “to grant [Plaintiff] relief consistent with”

4 the Ninth Circuit’s opinion. Consistent with the Ninth Circuit’s opinion, the materials now

5 specify, for example: “According to the appellate court, [the eight foot bubble] applies

6 equally to protestors and escort volunteers. This is a change from the previous enforcement

7 policy. That means that escort volunteers helping patients enter a clinic must have consent to

8 approach within eight feet of a patient.” See dkt. 197-4 at 2.

9

Defendant is thus directed to enforce the ordinance in a manner consistent with the

10 protocols in the revised training materials.1 See dkt. 197. If Defendant enforces the

11 ordinance in a manner materially inconsistent with the revised training materials, Plaintiff is

12 invited to bring such conduct to the Court’s attention. The Court will not give an advisory

13 opinion about policies or practices that might never exist.

14

For the sake of clarity, the Court reiterates its holding from the bench that it accepts

15 Defendant’s representation at the motion hearing that the Defendant’s policy will be to 16 exempt only the provision of medical care by medical professionals outside of the clinics.2

17 Defendant represented, and the Court agrees, that there is no blanket exemption for doctors, 18 nurses, and clinic employees.3

19

The Court further rejects Plaintiff’s invitation to revisit the definition of the word

20 “approach,” addressed in a single sentence of Plaintiff’s Motion. See dkt. 201 at i. If the

21
1 The Court rejects the additional language Defendant proposes in its Opposition, see dkt. 203 22 at 4-5, pertaining to the new policy at the FPS clini.cSuch language is problematic because (1) the FPS
clinic script does not elicit the same consent as is required by the Ordinance; (2) the FPS policy does 23 not address individuals accom panying patients; a nd (3) the FPS policy does not address patients
attempting to drop in on the clinic who have not yet been informed that appointments are to be made 24 in advance. The revised training materials the Court accepts are therefore onlythose materials provided
in dkt. 197. 25
2 See also dkt. 203 at 6 (arguing for exem ption “to approach patients without consent wi thin 26 eight feet if necessary to provide medical care (for example, if a patient approaching the clinic had a
heart attack or fainted and needed immediate attention).” 27
3 Thus, a medical professional who willfully and knowingly approaches within eight feet of a 28 patient seeking to enter a clinic, without the consent of the patient, for the purpose of counseling,
harassing, or interfering with the patient, will be doing so in violation of the ordinance.

2

United States District Court For the Northern District of California

1 Ninth Circuit did not agree with this Court’s discussion of “approach” as including a

2 demonstrator who stands still but lifts his arm toward a patient, see dkt. 152 at 20-22, it could

3 have said so. What it held instead was, “Hoye’s allegations of vagueness need not detain us.

4 Hoye contends that the Ordinance’s use of the terms ‘approach’ and ‘consent’ are

5 impermissibly vague. But the Ordinance uses these terms in precisely the same manner as the

6 Colorado statute. . . . The Ordinance cannot therefore be vague in these respects for the same

7 reasons that Hill held the Colorado statute not to be vague.” See Hoye, 653 F.3d at 849 n.11

8 (internal citation omitted). The Ninth Circuit’s partial reversal, based on “[t]he City’s policy

9 of distinguishing between speech that facilitates access to clinics and speech that discourages

10 access,” id. at 851, is not be an opportunity to revisit every other argument Plaintiff has as to

11 the Ordinance’s unconstitutionality.

12

IT IS SO ORDERED.

13 Dated: December 16, 2011
14 15

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

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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,

NO.: C07-06411 CRB

Plaintiff,

JUDGMENT

v.

CITY OF OAKLAND,

Defendant.

The court hereby enters judgment in this matter as follows: 1) The court hereby declares that Oakland’s policy of exempting speech “facilitating access” to clinics from the coverage of Oakland Ordinance No. 12860 violates the First Amendment; 2) Defendant is directed to enforce the Ordinance in an evenhanded manner. This would include enforcement consistent with the protocols in the revised training materials filed with the court at Docket #197, with the understanding that the City will exempt only the provision of medical care by medical professionals outside of the clinics, and that there is no blanket exemption for doctors, nurses, and clinic employees.

C07-06411 CRB

Page 1

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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

UNITED S ALIFORNIA

3) Ordinance No. 12860, enacted by the City of Oakland on February 5, 2008, is constitutional on its face.
The court shall retain jurisdiction to enforce the terms of this judgment.

Dated: August 2, 2012

OURT NORTH

TATES DISTRICT C CUNHIIATTERDILSSETSSAOBTEROSERDYDIESETRRRICETDJUDGE
Judge Charles R. Breyer
ERN DISTRICT OF C

Ex. A

C07-06411 CRB

Page 2

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

United States District Court For the Northern District of California

11 WALTER B. HOYE, II,

12

Plaintiff,

13 v.

14 CITY OF OAKLAND,

15

Defendant.

16

No. C 07-06411 CRB ORDER GRANTING FEES
/

17

Plaintiff Walter Hoye moves for attorneys’ fees in this case. See Mot. (dkt. 223). The

18 Court finds that Plaintiff is the prevailing party, but that his success in the case was limited.

19 Accordingly, the Court GRANTS Plaintiff’s fee motion, but reduces his fee award, as

20 explained below.

21 I. BACKGROUND

22

The City of Oakland’s “bubble ordinance” creates an eight-foot buffer around people

23 seeking access to reproductive health care clinics (“clinics”). See Hoye v. Oakland, 653 F.3d

24 835, 841 (9th Cir. 2011). The Ordinance provides that within 100 feet of a clinic, it is

25 unlawful to “willfully and knowingly approach within eight (8) feet of any person seeking to

26 enter such a facility, or any occupied motor vehicle seeking entry, without the consent of

27 such person or vehicle occupant, for the purpose of counseling, harassing, or interfering with

28 such person or vehicle occupant.” See id.

United States District Court For the Northern District of California

1

Plaintiff, a pro-life “sidewalk counselor” in Oakland, id. at 839, brought suit, claiming

2 that the Ordinance was unconstitutional on its face and as-applied, see generally id.

3 Following extensive litigation, the Court in August 2009 granted Defendant’s motion for

4 summary judgment, upholding the constitutionality of the Ordinance. See generally Order re

5 MSJ (dkt. 152). This Court held that the Ordinance was constitutional facially and as-

6 applied; one key to the latter holding was the Court’s conclusion it did not violate the

7 Ordinance when volunteer escorts approached women for the purpose of facilitating access

8 to the clinic. Id. at 11.

9

The Ninth Circuit in July 2011 affirmed in part and reversed in part, concluding that,

10 although the Ordinance was constitutional on its face, Oakland’s enforcement policy was a

11 constitutionally invalid, content-based regulation of speech. See Hoye, 653 F.3d at 859. The

12 Ninth Circuit noted that a “theme central to [Plaintiff’s] challenge is his contention that

13 Oakland does not enforce the Ordinance evenhandedly.” Id. at 840. Agreeing with that

14 contention, the court found that “[t]he City’s policy of distinguishing between speech that

15 facilitates access to clinics and speech that discourages access is not content-neutral.” Id. at

16 851. The Ninth Circuit therefore had to “craft a remedy designed to foreclose” Oakland from

17 enforcing the Ordinance as it was erroneously understood, “while preserving the facially

18 valid Ordinance.” Id. at 856. The court remanded the case with instructions that this Court

19 grant Plaintiff’s motion for summary judgment in part and grant relief consistent with its

20 opinion. Id. at 859.

21

This Court held a status conference in August, 2011. See Minutes (dkt. 191). The

22 City represented that it was revising its written enforcement policy to comply with the Ninth

23 Circuit’s opinion; Plaintiff asserted that his vagueness challenge to the City’s policy of

24 equating an outstretched arm to an approach was also up for reconsideration. The Court

25 allowed additional briefing on that subject. See Supplemental Briefs (dkts. 195, 196).

26 Plaintiff requested a permanent injunction, one of several in the case, based on the City’s

27 proposed enforcement exemptions. See MPI (dkts. 199, 201). The Court then entered an

28 order directing Defendant to enforce the Ordinance in a manner consistent with the protocols

2

United States District Court For the Northern District of California

1 in the revised training materials, and declined to revisit the definition of the word 2 “approach.”1 See Order re Training Materials (dkt. 208).

3

The parties agreed that there were no factual or legal disputes for the Court to resolve,

4 and submitted their own proposed judgments. See Mot. for Entry of Judgment (dkt. 212);

5 Response (dkt. 220). The Court entered Plaintiff’s proposed judgment on August 3, 2012.

6 See Judgment (dkt. 234). Plaintiff then moved for attorneys’ fees. See Mot.

7 II. LEGAL STANDARD

8

Under 42 U.S.C. § 1988, prevailing parties in civil rights cases are entitled to

9 reasonable attorneys’ fees under certain circumstances. 42 U.S.C. § 1988(b) (2012). As an

10 initial matter, a court must determine whether the party seeking fees has “prevailed.”

11 See Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995). Once a court determines

12 that a civil rights plaintiff has prevailed, the court may award reasonable attorneys’ fees. Id.

13 To determine the amount of the award, a court usually begins by calculating the “lodestar”

14 amount – the number of hours reasonably spent in achieving the results obtained multiplied

15 by a reasonable hourly rate. Id. “A court may also consider other factors, including the

16 degree of success obtained, and make adjustments to the lodestar accordingly.” Id. (citing

17 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975)).

18 III. DISCUSSION

19

Plaintiff seeks a total of $585,060.88 in fees and costs (reflecting his original

20 $552,043.38 request, adjusted to correct for a couple of errors identified by Defendant, plus

21

1 The Court explained: 22

If the Ninth Circuit did not agree with this Court’s discussion of “approach” as including a

23

demonstrator who stands still but lifts his arm toward a patient, see dkt. 152 at 20-22, it could

have said so. What it held instead was, “Hoye’s allegat ions of vagueness need not detain us.

24

Hoye contends that the Ordinance’s use of thteerms ‘approach’ and ‘consent’ are impermissibly

vague. But the Ordinance uses these terms in precisely the same manner as the Colorado statute.

25

. . . The Ordinance cannot therefore be vague inthese respects for the same reasons that Hillheld

the Colorado statute not to be va gue.” See Hoye , 653 F.3d at 849 n.11 (internal citation

26

omitted). The Ninth Circuit’s partial reversal, based on “[t]he City’s policy of distinguishing

between speech that facilitates access to clinics and speech that discourages access,” ida. t 851,

27

is not . . . an opportunity to revisit every othe r argument Plaintiff has as to the Ordinance’s

unconstitutionality. 28

Id. at 2-3.

3

United States District Court For the Northern District of California

1 $34,662.50 for work done in support of this Motion). See Reply (dkt. 229) at 15. Defendant

2 opposes the Motion. The issues for the Court to determine are (A) whether Plaintiff is the

3 prevailing party, and (B) if so, what a reasonable fee award would be.

4

A. Prevailing Party

5

1. Legal Principles

6

A plaintiff is a “prevailing party” if resolution of the case “changes the legal

7 relationship between [the plaintiff] and the defendant.” See Texas State Teachers Ass’n v.

8 Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). A material “alteration of the legal

9 relationship between the parties” may be effectuated by a judgment on the merits or a

10 court-ordered consent decree. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

11 Health & Human Res., 532 U.S. 598, 605 (2001). Plaintiffs may be considered prevailing

12 parties “if they succeed on any significant issue in litigation which achieves some of the

13 benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

14 “A litigant need not prevail on every issue, or even on the ‘central issue’ in the case, to be

15 considered the prevailing party. It is enough that he succeed ‘on any significant claim

16 affording some of the relief sought, either pendente lite or at the conclusion of the

17 litigation.’” Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995) (citing Tex. State Teachers

18 Ass’n, 489 U.S. at 790-91).

19

2. Application to this Case

20

Defendant argues that Plaintiff is not the prevailing party, asserting that “The

21 Ordinance Plaintiff sought to enjoin remains in effect. Indeed, it is more secure than before,

22 having been declared constitutional on its face.” Mot. at 5. It further asserts that nothing has

23 changed between the parties because Plaintiff still cannot come within eight feet of a patient

24 seeking to enter a clinic without her consent, or thrust his arm within eight feet of such a

25 person. Id. at 6.

26

Those arguments fail, because they speak to the extent to which Plaintiff prevailed;

27 that he prevailed cannot reasonably be disputed. Plaintiff argued early on that “The OPD has

28 an unwritten policy exempting from the reach of the Ordinance any person who approaches

4

United States District Court For the Northern District of California

1 and speaks to clients for the purposes of encouraging them to use clinic services. That same

2 unwritten policy holds that plaintiff is to be arrested if he approaches and speaks to clients

3 for the purposes of encouraging them to choose options other than utilizing clinic services.”

4 First Amended Complaint (“FAC”) (dkt. 38) ¶ 11. The Ninth Circuit recognized that a

5 “theme central to [Plaintiff’s] challenge is his contention that Oakland does not enforce the

6 Ordinance evenhandedly.” Hoye, 653 F.3d at 840. The Ninth Circuit agreed with Plaintiff

7 that “Oakland’s enforcement policy is a constitutionally invalid, content-based regulation of

8 speech.” Id. at 859. At the Ninth Circuit’s direction, this Court on remand entered an order

9 directing Defendant to enforce the Ordinance in a manner consistent with the protocols in the

10 revised training materials. See Order re Training Materials. Those revised training materials

11 specify that: “According to the appellate court, [the eight foot bubble] applies equally to

12 protestors and escort volunteers. This is a change from the previous enforcement policy.”

13 See Training Materials (dkt. 197-4) at 2. The Court entered judgment, reiterating that

14 Oakland’s enforcement policy of exempting speech that facilitated access was

15 unconstitutional, and directing Oakland to enforce the Ordinance in an evenhanded matter.

16 See Judgment.

17

There can be no question, then, that Plaintiff achieved success on a “significant issue

18 in litigation which achieves some of the benefit [he] sought in bringing suit.” See Hensley,

19 461 U.S. at 433. Plaintiff’s legal relationship with Oakland has also arguably changed

20 because he now has a judgment stating that Oakland cannot enforce the Ordinance against

21 him any differently than it can someone with an opposing viewpoint. That is something he

22 did not have before. He is, therefore, the prevailing party. The Court now turns to the

23 question of a reasonable award.

24

B. Reasonable Award

25

1. Legal Principles

26

The Supreme Court in Hensley, 461 U.S. at 433, instructed that “[t]he most useful

27 starting point for determining the amount of a reasonable fee is the number of hours

28 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Counsel for

5

United States District Court For the Northern District of California

1 prevailing parties are to make a concerted effort to exclude excessive, redundant, or

2 otherwise unnecessary hours. Id. at 434. However, “the product of reasonable hours times a

3 reasonable rate does not end the inquiry,” in light of other considerations that might lead a

4 court to adjust a fee award up or down, such as the “results obtained.” Id. The Court

5 explained that “[t]his factor is particularly crucial where a plaintiff is deemed ‘prevailing’

6 even though he succeeded on only some of his claims for relief.” Id. When that happens,

7 courts are to ask (1) whether Plaintiff failed to prevail “on claims that were unrelated to the

8 claims on which he succeeded”; and (2) whether Plaintiff “achieve[d] a level of success that

9 makes the hours reasonably expended a satisfactory basis for making a fee award. Id.

10 Where a plaintiff has achieved only partial success, “the most critical factor is the degree of

11 success obtained.” Id. at 436. “A reduced fee award is appropriate if the relief, however

12 significant, is limited in comparison to the scope of the litigation as a whole.” Id. at 440.

13

District courts must set forth a “concise but clear explanation of [their] reasons for the

14 fee award.” Id. at 437. This does not mean, however, that a district court must “set forth an

15 hour-by-hour analysis of the fee request.” Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th

16 Cir. 1992). Rather, “when faced with a massive fee application the district court has the

17 authority to make across-the-board percentage cuts either in the number of hours claimed or

18 in the final lodestar figure ‘as a practical means of trimming the fat from a fee application.’”

19 Id. (citing N.Y. State Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir.

20 1983)); but see Moreno v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008) (“if all

21 the district court offers is a conclusory statement that a fee request is too high, then we can’t

22 tell if the court is applying its superior knowledge to trim an excessive request or if it is

23 randomly lopping off chunks of the winning lawyer’s reasonably billed fees.”).

24

2. Application to this Case

25

As an initial matter, the Court has reviewed Plaintiff’s fee request and the billing

26 records he submitted. Nothing about the hours Plaintiff’s counsel worked on the litigation as

27 a whole appear to the Court to be redundant or excessive. This was a heavily litigated civil

28 rights case that began five years ago; it understandably consumed many hours of counsel’s

6

United States District Court For the Northern District of California

1 time. Further, Plaintiff requests that his counsel be compensated at the rate of $550 per hour.

2 See Mot. at 10-13. Given the skill and experience of his counsel, and other like awards from

3 this district, that rate is appropriate. Notably, Defendant does not object to the $550 per hour

4 rate. See Opp’n (dkt. 224) at 2. Accordingly, the Court accepts Plaintiff’s lodestar.

5 However, this is not the end of the inquiry. Hensley, 461 U.S. at 434 (“the product of

6 reasonable hours times a reasonable rate does not end the inquiry,” in light of other

7 considerations that might lead a court to adjust a fee award up or down, such as the “results

8 obtained.”).

9

Plaintiff argues that he achieved “excellent results,” because his case “had one main

10 objective: to obtain declaratory injunctive relief protecting plaintiff’s right to engage in free

11 speech activities on public sidewalks outside abortion clinics on equal terms with clinic

12 escorts and others espousing different viewpoints.” Mot. at 2. He cites to Hensley for the

13 proposition that “[w]here a plaintiff has obtained excellent results, his attorney should

14 recover a fully compensatory fee.” Id. (citing Hensley, 461 U.S. at 435). Although Plaintiff

15 concedes that he did not prevail on his facial attack on the Ordinance, he argues that “his

16 attorneys still are entitled to recover for the time expended on that claim because they

17 involve related legal theories or arose from a common core of facts.” Id. (citing City of

18 Riverside v. Rivera, 477 U.S. 561, 564 (1986) and Webb v. Sloan, 330 F.3d 1158, 1169 (9th

19 Cir. 2003)). The Court disagrees.

20

a. Claims Not Related

21

Plaintiff prevailed on his as-applied challenge to the Ordinance, and failed to prevail

22 on his facial challenge to the Ordinance. In such circumstances, the Court is to ask whether

23 Plaintiff failed to prevail “on claims that were unrelated to the claims on which he

24 succeeded.” See Hansley, 461 U.S. at 434. The Court concludes that the as-applied

25 challenge and the facial challenge – although both generally about the Ordinance – were

26 unrelated. That is to say, the two challenges did not “involve a common core of facts or . . .

27 related legal theories.” See Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005);

28

7

United States District Court For the Northern District of California

1 see also Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003) (unrelated claims are those that

2 are “entirely distinct and separate from the claims on which the plaintiff prevailed.”).

3

The two sets of facts are different. The facts involved in the as-applied challenge

4 were the Plaintiff’s “counseling” activities outside of the clinics, the actions of the escorts,

5 and the responses of the Oakland Police Department. The only facts involved in the facial

6 challenge were the words of the Ordinance. The legal theories were also entirely distinct. 7 Plaintiff did not need to bring a facial challenge in order to bring an as-applied challenge,2

8 and “the efforts expended on the unsuccessful claims did not contribute to [the plaintiff]

9 prevailing on the successful claim,” see Schwarz v. Sec’y of Health & Human Servs., 73

10 F.3d 895, 904 (9th Cir. 1995) (relying on Herrington v. Cnty. of Sonoma, 883 F.2d 739 (9th

11 Cir. 1989)). Plaintiff’s failed efforts to show that various phrases in the Ordinance rendered

12 it content-based, or vague, contributed not at all to his successful efforts to show that the

13 City’s expressed policy of enforcing the Ordinance against a “sidewalk counselor” who

14 asked “May I talk to you about alternatives to the clinic?” but not against an escort who

15 asked, “May I help you into the clinic?” was content-based. See Hoye, 653 F.3d at 850-51.

16

Because Plaintiff’s work on the unsuccessful facial claims “cannot be deemed to have

17 been ‘expended in pursuit of the ultimate result achieved’” on his as-applied claims, the

18 Court is to treat the facial claims “as if they had been raised in separate lawsuits,” and award

19 no fees for them. See Hensley, 461 U.S. at 435 (citing Davis v. Cty. of Los Angeles. 8

20 E.D.P. ¶ 9444, at 5049 (C.D. Cal. 1974). But the Court finds itself unable to excise from

21 Plaintiff’s fee request the hours worked on the unsuccessful claims. “If it is impossible to

22

23

2 Plaintiff’s contention that Oakland “invited” afacial challenge by arguing that its enforcement

policy was no different from the Ordinance as it was writte n is not well taken. See Mot. at 5. Many 24 defendants will respond to an as-applied challenge by arguing that they are enforcing an ordinance in

a m anner consistent with its term s. That does not m ean t hat every case involving an as-applied 25 challenge must also involve a facial challenge. Plaintiffs should onyl bring facial challenges when they

can in good faith argue that the language of an ordinance is unconstitutional. Here, because t he 26 Ordinance was modeled on the law upheld in Hill v. Colorado, 530 U.S. 703 (2000), a facial challenge

was by no m eans a foregone conclusion. See Hoye , 653 F.3d at 843 (“Because the Ordinance is 27 modeled on the Colorado statute upheld in Hill, that opinion controls much of our analysis in this case

and leads us to the conclusion that the Ordinance is a facially valid restriction on the time, place, and 28 manner of speech.”); id. at 842 (describing Hill statute as “markedly similar to the Ordinance” here);

id. at 844 (“The relevant portions of the Ordinance largely replicate the Colorado statute”).

8

United States District Court For the Northern District of California

1 isolate the truly unrelated claims from those related claims, the district court should instead

2 reflect that limited success in [the] second step.” Thomas, 410 F.3d at 649-50 (internal

3 quotations omitted). The Court will therefore “focus on the significance of the overall relief

4 obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”

5 Hensley, 461 at 435.3

6

b. Limited Success

7

Plaintiff achieved significant relief when the Ninth Circuit agreed with him that

8 “Oakland’s enforcement policy is a constitutionally invalid, content-based regulation of

9 speech” and remanded the case with the instructions that it did. See Hoye, 653 F.3d at 859.

10 Defendant’s arguments to the contrary sound like sour grapes. See, e.g., Opp’n at 7 (“All the

11 City had to do was add a few words to those [training] materials”). Still, “a reduced fee

12 award is appropriate if the relief, however significant, is limited in comparison to the scope

13 of the litigation as a whole.” Hensley, 461 U.S. at 440.

14

The litigation as a whole did not, as Plaintiff now argues, have “one main objective: to

15 obtain declaratory injunctive relief protecting plaintiff’s right to engage in free speech

16 activities on public sidewalks outside abortion clinics on equal terms with clinic escorts and

17 others espousing different viewpoints.” See Mot. at 2. It was about evenhanded

18 enforcement, but it was also very much about Plaintiff’s desire to have the Ordinance in its

19 entirety declared unconstitutional and, indeed, unenforceable. See, e.g., P’s MSJ (dkt. 92-1)

20 at 25 (“Simply put, this case is not Hill and the Ordinance is facially unconstitutional because

21 the asserted government interest does not justify these restrictions.”); id. at 35 (“The Court

22 should grant Plaintiff’s Motion for Summary Judgment, declare the ordinance

23 unconstitutional, and permanently enjoin defendant from enforcing it.”). Even-handed

24
3 The Court notes that Hensley explained that a district court “may attempt to identify specific 25 hours that should be eliminated, or it may simply reduce the award to account for the limited success.”
Id. at 436-37. The City has attem pted to identify specific hours that it argue s should be elim inated, 26 largely hours attributed to Pl aintiff’s failed attem pts at injunctive relief, and work perform ed in
connection with his criminal case. See Opp’n at 13-14. But Plaintiff has persuaded the Court that the 27 latter contributed to Plaintiff’s civil case, and that the form er consisted both of facial and as-applied
challenges. Accordingly, the Court will not eliminate those hours, and instead will reduce Plaintiff’s 28 award to account for his limited success.

9

United States District Court For the Northern District of California

1 enforcement of an 8-foot bubble was not what Plaintiff sought; indeed, he had asserted that

2 his style of “sidewalk counseling” required that he be able to approach closely the people

3 entering the clinic. Plaintiff argued to this Court: “In Plaintiff’s experience, it is virtually

4 impossible to start up a conversation with someone from eight feet away.” Id. at 22. Even

5 Plaintiff’s FAC asked for (a) a “judgment against the defendant”; (b) “a declaratory judgment

6 declaring the acts of the defendant to be a violation of plaintiff’s constitutional rights . . .”;

7 (c) “a declaratory judgment declaring that [the Ordinance] is unconstitutional on its face”; (d)

8 “a declaratory judgment declaring that [the Ordinance] is unconstitutional as enforced and as

9 applied”; (e) injunctive relief enjoining Defendant “from enforcing [the Ordinance]”; (f) fees

10 and costs; and (g) “such other and further relief as the Court deems just and proper.”

11 See FAC at 9.4 In light of Plaintiff’s requests that the Court declare the Ordinance

12 unconstitutional on its face and enjoin it from being enforced altogether, it is disingenuous to

13 characterize the scope of the litigation as only involving equal enforcement.

14

While a plaintiff need not “receive all relief requested” to receive “a fee award based

15 on all hours reasonably expended if the relief obtained justified that expenditure of attorney

16 time,” Hensley, 461 U.S. at 435 n.11, here, the relief Plaintiff obtained was significantly

17 narrower than he sought, and does not entitle Plaintiff to the full lodestar. Put another way,

18 the ultimate remedy here, a judgment finding that the Defendant’s enforcement policy

19 violated the First Amendment and directing Defendant to enforce the Ordinance in an

20 evenhanded manner, is not worth $585,060.88. That lodestar necessarily includes in it the

21 time Plaintiff spent arguing that the Ordinance was unconstitutional, not only because of how

22 Defendant interpreted it, but because it did not comport with Hill v. Colorado, 530 U.S. 703

23 (2000) – an issue the Ninth Circuit dispensed with fairly easily.5

24

25

26

4 The Second Am ended Com plaint also prayed that the Court declare the Ordina

nce

unconstitutional on its face and enjoin it from being enforced. See SAC (dkt. 74) at 9. 27

5 See Hoye, 653 F.3d at 843 (“Because the Ordinance is modeled on the Colorado statute upheld 28 in Hill, that opinion controls much of our analysis in this case and leads us to the conclusion that the

Ordinance is a facially valid restriction on the time, place, and manner of speech.”).

10

United States District Court For the Northern District of California

1

In sum, Plaintiff ended up prevailing on half of his case (his as-applied challenge),

2 and attaining half of the relief that he sought (evenhanded enforcement of the Ordinance).

3 To reflect this limited success, the Court will award Plaintiff: (1) half of his fees for his time

4 billed through the oral argument in the Ninth Circuit, a time period in which Plaintiff pursued

5 both his facial and as-applied challenges; and (2) all of his fees for his time billed after the

6 oral argument in the Ninth Circuit, a time period in which the parties and the Court worked

7 to implement the Ninth Circuit’s remedy as to Plaintiff’s successful as-applied challenge.

8

At the Court’s request, Plaintiff submitted, following the motion hearing, a declaration

9 breaking down his fees so that the Court could understand how much time he billed through

10 the date of the oral argument, and how much time he billed after that date. See Millen Decl.

11 (dkt. 237). Plaintiff represents to the Court that he billed $447,582.90 through the date of

12 oral argument, id. at 2, which means that he billed $137,477.98 after that date. Accordingly,

13 the Court will award Plaintiff $223,791.45 for his work through the date of the oral

14 argument, and $137,477.98 for the work he billed after that date, for a total of $361,269.43.

15 The total award reflects a reduction that is “more than a haircut,” see Moreno, 534 F.3d at

16 1116, in light of the Court’s view that Plaintiff’s success was significant, but limited in

17 relation to the scope of his case as a whole.

18 IV. CONCLUSION

19

For the foregoing reasons, the Court GRANTS the Motion, and awards Plaintiff fees

20 of $361,269.43.

21

IT IS SO ORDERED.

22 Dated: October 1, 2012
23 24

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

25

26

27

28

G:\CRBALL\2007\6411\order awarding fees.wpd

11

 
 Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 1 of 19
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−06411−CRB

Hoye v. City of Oakland Assigned to: Hon. Charles R. Breyer Referred to: Magistrate Judge Joseph C. Spero Case in other court: 09−16753 Cause: 42:1983 Civil Rights Act
Plaintiff
Walter B. Hoye, II

Date Filed: 12/19/2007 Date Terminated: 10/02/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Michael Millen Law Offices of Michael Millen 119 Calle Marguerita #100 Los Gatos, CA 95032 408−871−0777 Fax: 408−516−9861 Email: MikeMillen@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine Wynne Short Life Legal Defense Foundation Post Office Box 1313 Ojai, CA 93024−1313 805−640−1940 Email: lldfojai@cs.com ATTORNEY TO BE NOTICED

V. Defendant City of Oakland

represented by Greg James Richardson Orrick, Herrington &Sutcliffe LLP 405 Howard Street The Orrick Building San Francisco, CA 94105 415−773−5822 Fax: 415−773−5759 Email: grichardson@orrick.com TERMINATED: 08/17/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela Lucia Padilla Orrick, Herrington &Sutcliffe LLP 405 Howard Street San Francisco, CA 94105−2669 415−773−5805 Fax: 415−773−5759 Email: apadilla@orrick.com TERMINATED: 03/24/2010 ATTORNEY TO BE NOTICED
Benjamin Cunningham Geiger Farella Braun + Martel 235 Montgomery Street San Francisco, CA 94104 415−954−4400 Fax: 415−954−4480 Email: bgeiger@fbm.com

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 2 of 19

TERMINATED: 10/14/2011 ATTORNEY TO BE NOTICED

Erin Hansen Reding Office of the County Counsel 1221 Oak Street, Suite 450 Oakland, CA 94612 510−272−6700 Fax: 510−272−5020 Email: erin.reding@acgov.org TERMINATED: 11/05/2009 ATTORNEY TO BE NOTICED

Jennifer A. Chin Office of the City Attorney 1 Frank Ogawa Plaza 6th Floor Oakland, CA 94612 510−238−4779 Fax: 510−238−6500 Email: jchin@oaklandcityattorney.org ATTORNEY TO BE NOTICED

Jessica Susan Pers Orrick Herrington &Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, CA 94105−2669 415−773−5700 Fax: 415−773−5759 Email: jpers@orrick.com ATTORNEY TO BE NOTICED

Katherine Collinge Lubin Orrick, Herrington &Sutcliffe LLP 405 Howard St San Francisco, CA 94105 415−773−4225 Fax: 415−773−5759 Email: klubin@orrick.com ATTORNEY TO BE NOTICED

Sarah Christine Marriott Orrick Herrington &Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415−557−5700 Fax: 415−557−5759 Email: smarriott@orrick.com ATTORNEY TO BE NOTICED

Vicki A. Laden Office of the City Attorney 1 Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 510−238−4941 Fax: 510−238−6500 Email: vladen@oaklandcityattorney.org TERMINATED: 10/14/2011 ATTORNEY TO BE NOTICED

3rd party plaintiff Virginia Hitchcock

represented by Cyrus Jacob Johnson Law Offices Cyrus J Johnson Esq

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 3 of 19
177 Bovet Road 6th Floor San Mateo, CA 94402 650−638−2308 Email: mail@cjjesq.com ATTORNEY TO BE NOTICED

Date Filed 12/19/2007 12/19/2007 12/19/2007
12/19/2007
12/19/2007
12/19/2007 12/19/2007
12/19/2007
12/19/2007 12/19/2007 12/20/2007
12/20/2007 01/10/2008 01/16/2008

# Docket Text
1 COMPLAINT against City of Oakland ( Filing fee $ 350, receipt number 54611002273.) SUMMONS ISSUED. Filed byWalter B. Hoye, II. (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
2 MOTION for Temporary Restraining Order, MOTION for Order to Show Cause re preliminary injunction filed by Walter B. Hoye, II. (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
3 MEMORANDUM of points and authorities in Support re 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause re preliminary injunction filed byWalter B. Hoye, II. (Related document(s) 2 ) (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
4 Declaration of Walter B. Hoye, II in Support of 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause re preliminary injunction filed byWalter B. Hoye, II. (Related document(s) 2 ) (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
5 Request for Judicial Notice re 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause filed byWalter B. Hoye, II. (Related document(s) 2 ) (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
Received Order re 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause by Walter B. Hoye, II. (mcl, COURT STAFF) (Entered: 12/21/2007)
6 CERTIFICATE OF SERVICE by Walter B. Hoye, II re 3 Memorandum in Support, 4 Declaration in Support, 2 MOTION for Temporary Restraining Order MOTION for Order to Show Cause, 1 Complaint, 5 Request for Judicial Notice, Received Order (mcl, COURT STAFF) (Filed on 12/19/2007) (mcl, COURT STAFF). (Entered: 12/21/2007)
7 ADR SCHEDULING ORDER: Case Management Conference set for 3/28/2008 08:30 AM. Case Management Statement due by 3/21/2008. (Attachments: # 1 Order setting CMC, # 2 Standing Order, # 3 CM Standing Order for All Judges)(mcl, COURT STAFF) (Filed on 12/19/2007) (Entered: 12/21/2007)
Summons Issued as to City of Oakland. (mcl, COURT STAFF) (Entered: 12/21/2007)
CASE DESIGNATED for Electronic Filing. (mcl, COURT STAFF) (Entered: 12/21/2007)
8 Minute Entry: Telephonic Conference re TR − held on 12/20/2007 before Charles R. Breyer (Date Filed: 12/20/2007). Matter continued to 1/17/08 at 10:00 a.m. for Status Conference. (Court Reporter Belle Ball.) (fj, COURT STAFF) (Date Filed: 12/20/2007) (Entered: 12/26/2007)
Set/Reset Hearings: Status Conference set for 1/17/2008 10:00 AM. (mcl, COURT STAFF) (Entered: 12/27/2007)
9 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer. (mcl, COURT STAFF) (Filed on 1/10/2008) (Entered: 01/10/2008)
10 Letter from Vicki Laden re status. (Laden, Vicki) (Filed on 1/16/2008) (Entered: 01/16/2008)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 4 of 19

01/16/2008 01/17/2008 03/13/2008 03/14/2008 03/17/2008 03/17/2008 03/17/2008 05/08/2008 05/09/2008 05/22/2008 05/22/2008 05/22/2008 05/22/2008
05/22/2008 05/22/2008
05/27/2008
05/28/2008 05/29/2008

11 Letter from Michael Millen re Status. (Millen, Michael) (Filed on 1/16/2008) (Entered: 01/16/2008)
12 Minute Entry: Status Conference (Date Filed: 1/17/2008). (Court Reporter Lydia Zinn.) (be, COURT STAFF) (Date Filed: 1/17/2008) (Entered: 01/17/2008)
13 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 3/13/2008) (Entered: 03/13/2008)
14 STIPULATION to Continue Case Management Conference Date and Suspend ADR Requirements; [Proposed] Order by City of Oakland. (Laden, Vicki) (Filed on 3/14/2008) (Entered: 03/14/2008)
15 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Laden, Vicki) (Filed on 3/17/2008) (Entered: 03/17/2008)
16 ORDER re 14 Stipulation filed by City of Oakland. Signed by Judge Charles R. Breyer on 3/17/08. (be, COURT STAFF) (Filed on 3/17/2008) (Entered: 03/17/2008)
Set Deadlines/Hearings: Case Management Statement due by 5/9/2008. Initial Case Management Conference set for 5/16/2008 08:30 AM. (be, COURT STAFF) (Filed on 3/17/2008) (Entered: 03/17/2008)
17 STIPULATION and Order to Continue CMC by Walter B. Hoye, II. (Millen, Michael) (Filed on 5/8/2008) (Entered: 05/08/2008)
18 ORDER re 17 Stipulation filed by Walter B. Hoye, II Further Case Management Conference set for 8/22/2008 08:30 AM.. Signed by Judge Charles R. Breyer on 5/09/08. (be, COURT STAFF) (Filed on 5/9/2008) (Entered: 05/09/2008)
19 MOTION for Temporary Restraining Order filed by Walter B. Hoye, II. (Attachments: # 1 Proposed Order Proposed Order)(Millen, Michael) (Filed on 5/22/2008) (Entered: 05/22/2008)
20 Brief re 19 MOTION for Temporary Restraining Order − Memo of Ps &As filed byWalter B. Hoye, II. (Related document(s) 19 ) (Millen, Michael) (Filed on 5/22/2008) (Entered: 05/22/2008)
21 Declaration of Walter B. Hoye, II in Support of 19 MOTION for Temporary Restraining Order filed byWalter B. Hoye, II. (Related document(s) 19 ) (Millen, Michael) (Filed on 5/22/2008) (Entered: 05/22/2008)
22 Declaration of Michael Millen, Esq. in Support of 19 MOTION for Temporary Restraining Order filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 19 ) (Millen, Michael) (Filed on 5/22/2008) (Entered: 05/22/2008)
23 Request for Judicial Notice re 19 MOTION for Temporary Restraining Order filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A)(Related document(s) 19 ) (Millen, Michael) (Filed on 5/22/2008) (Entered: 05/22/2008)
24 ORDER re telephone conference on Tuesday, May 27 at 2:30 p.m. Signed by Judge Susan Y. Illston for Judge Charles R. Breyer on 5/22/2008. (crblc1, COURT STAFF) (Filed on 5/22/2008) Modified on 5/23/2008 (mcl, COURT STAFF). (Entered: 05/22/2008)
25 Minute Entry: Motion Hearing held on 5/27/2008 before Charles R. Breyer (Date Filed: 5/27/2008) re 19 MOTION for Temporary Restraining Order filed by Walter B. Hoye, II. Telephonic Conference set for 5/30/2008 09:30 AM. (Court Reporter Lydia Zinn.) (be, COURT STAFF) (Date Filed: 5/27/2008) (Entered: 05/28/2008)
26 Letter from Vicki Laden enclosing Training Bulletin. (Laden, Vicki) (Filed on 5/28/2008) (Entered: 05/28/2008)
27 Brief re 19 MOTION for Temporary Restraining Order − Supplemental filed byWalter B. Hoye, II. (Related document(s) 19 ) (Millen, Michael) (Filed on 5/29/2008) (Entered: 05/29/2008)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 5 of 19

05/29/2008 05/29/2008 05/29/2008 05/29/2008 05/30/2008
06/02/2008
06/05/2008 06/05/2008 06/05/2008 06/06/2008 06/12/2008 06/19/2008 06/23/2008 06/23/2008

28 Request for Judicial Notice re 19 MOTION for Temporary Restraining Order − 2nd Request for Judicial Notice filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A)(Related document(s) 19 ) (Millen, Michael) (Filed on 5/29/2008) (Entered: 05/29/2008)
29 ASSOCIATION of Counsel by City of Oakland. (Laden, Vicki) (Filed on 5/29/2008) (Entered: 05/29/2008)
30 MEMORANDUM in Opposition re 19 MOTION for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction filed byCity of Oakland. (Related document(s) 19 ) (Marriott, Sarah) (Filed on 5/29/2008) (Entered: 05/29/2008)
31 DECLARATION of Vicki Laden in Opposition to 19 MOTION for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction filed byCity of Oakland. (Attachments: # 1 Exhibit Exhibits 1−5)(Related document(s) 19 ) (Marriott, Sarah) (Filed on 5/29/2008) (Entered: 05/29/2008)
33 Minute Entry: Motion Hearing held on 5/30/2008 before Charles R. Breyer (Date Filed: 5/30/2008) re 19 MOTION for Temporary Restraining Order filed by Walter B. Hoye, II, ***Motions terminated: 19 MOTION for Temporary Restraining Order filed by Walter B. Hoye, II.. (Court Reporter Sahar McVickar.) (be, COURT STAFF) (Date Filed: 5/30/2008) (Entered: 05/30/2008)
34 Transcript of Proceedings held on 5/30/08, before Judge Charles R. Breyer. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/28/2008. (McVickar, Sahar) (Filed on 6/2/2008) (Entered: 06/02/2008)
35 MOTION to Dismiss Plaintiff's Complaint for Violation of Civil Rights filed by City of Oakland. Motion Hearing set for 7/11/2008 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Marriott, Sarah) (Filed on 6/5/2008) (Entered: 06/05/2008)
36 Proposed Order re 35 MOTION to Dismiss Plaintiff's Complaint for Violation of Civil Rights by City of Oakland. (Marriott, Sarah) (Filed on 6/5/2008) (Entered: 06/05/2008)
37 Brief re 35 MOTION to Dismiss Plaintiff's Complaint for Violation of Civil Rights Memorandum of Points and Authorities in Support of Motion to Dismiss filed byCity of Oakland. (Related document(s) 35 ) (Marriott, Sarah) (Filed on 6/5/2008) (Entered: 06/05/2008)
38 AMENDED COMPLAINT − First against City of Oakland. Filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Millen, Michael) (Filed on 6/6/2008) (Entered: 06/06/2008)
39 Ex Parte Application to Deem Motion to Dismiss Moot filed by Walter B. Hoye, II. (Attachments: # 1 Affidavit of Michael Millen, # 2 Proposed Order)(Millen, Michael) (Filed on 6/12/2008) (Entered: 06/12/2008)
40 ORDER by Judge Charles R. Breyer dismissing 35 Motion to Dismiss; granting 39 Ex Parte Application. (crblc1, COURT STAFF) (Filed on 6/19/2008) (Entered: 06/19/2008)
41 Letter from Angela Padilla to The Honorable Charles R. Breyer. (Marriott, Sarah) (Filed on 6/23/2008) (Entered: 06/23/2008)
42 Proposed Order Denying 19 Plaintiff's Application for Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction by City of Oakland. (Marriott, Sarah) (Filed on 6/23/2008) Modified on 6/24/2008 (mcl, COURT STAFF). (Entered: 06/23/2008)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 6 of 19

06/23/2008 06/23/2008 06/23/2008 06/24/2008 06/24/2008 08/01/2008 08/07/2008 08/07/2008 08/11/2008
08/13/2008 08/22/2008 08/29/2008
08/29/2008
11/13/2008

43 MOTION to Dismiss Plaintiff's First Amended Complaint filed by City of Oakland. Motion Hearing set for 8/22/2008 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Marriott, Sarah) (Filed on 6/23/2008) (Entered: 06/23/2008)
44 Brief /Memorandum of Points and Authorities in Support of 43 Defendant's Motion to Dismiss Plaintiff's First Amended Complaint filed byCity of Oakland. (Marriott, Sarah) (Filed on 6/23/2008) Modified on 6/24/2008 (mcl, COURT STAFF). (Entered: 06/23/2008)
45 Proposed Order Granting 43 Defendant City of Oakland's Motion to Dismiss Plaintiff's First Amended Complaint by City of Oakland. (Marriott, Sarah) (Filed on 6/23/2008) Modified on 6/24/2008 (mcl, COURT STAFF). (Entered: 06/23/2008)
46 ORDER DENYING re 19 MOTION for Temporary Restraining Order and ORDER TO SHOW CAUSE filed by Walter B. Hoye, II. Signed by Judge Charles R. Breyer on 6/2/408. (be, COURT STAFF) (Filed on 6/24/2008) (Entered: 06/24/2008)
47 NOTICE by City of Oakland re 43 Motion Corrected Notice of Motion and Motion to Dismiss Plaintiff's First Amended Complaint (Marriott, Sarah) (Filed on 6/24/2008) Modified on 6/25/2008 (mcl, COURT STAFF). (Entered: 06/24/2008)
48 Memorandum in Opposition re 43 MOTION to Dismiss Plaintiff's First Amended Complaint filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 8/1/2008) (Entered: 08/01/2008)
49 CLERK'S NOTICE Advancing Motion Hearing Motion to Dismiss Hearing reset for 8/21/2008 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 8/7/2008) (Entered: 08/07/2008)
50 STIPULATION AND [PROPOSED] ORDER REGARDING CASE SCHEDULE by City of Oakland. (Marriott, Sarah) (Filed on 8/7/2008) (Entered: 08/07/2008)
51 ORDER re 50 Stipulation filed by City of Oakland, Set/Reset Deadlines as to 50 Stipulation, 43 MOTION to Dismiss Plaintiff's First Amended Complaint. Motion Hearing set for 8/29/2008 10:00 AM. Further Case Management Conference set for 8/29/2008 10:00 AM.. Signed by Judge Charles R. Breyer on 8/8/08. (be, COURT STAFF) (Filed on 8/11/2008) (Entered: 08/11/2008)
52 REPLY in Support OF 43 DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT filed by City of Oakland. (Marriott, Sarah) (Filed on 8/13/2008) Modified on 8/14/2008 (far, COURT STAFF). (Entered: 08/13/2008)
53 JOINT CASE MANAGEMENT STATEMENT filed by Walter B. Hoye, II. (Millen, Michael) (Filed on 8/22/2008) (Entered: 08/22/2008)
54 Minute Entry: Further Case Management Conference held on 8/29/2008 before Charles R. Breyer (Date Filed: 8/29/2008), Motion Hearing held on 8/29/2008 before Charles R. Breyer (Date Filed: 8/29/2008), ***Motions terminated: 43 MOTION to Dismiss Plaintiff's First Amended Complaint filed by City of Oakland.. Motion for Summary Judgment due by 1/30/2009. Motion Hearing set for 3/6/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Kathy Sullivan.) (be, COURT STAFF) (Date Filed: 8/29/2008) (Entered: 08/29/2008)
55 AMENDED Minute Entry: 54 Further Case Management Conference held on 8/29/2008 before Charles R. Breyer (Date Filed: 8/29/2008), Motion Hearing held on 8/29/2008 before Charles R. Breyer (Date Filed: 8/29/2008), ***Motions terminated: 43 MOTION to Dismiss Plaintiff's First Amended Complaint filed by City of Oakland.. Motion for Summary Judgment due by 1/30/2009. Motion Hearing set for 3/6/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Kathy Sullivan.) (Entered: 08/29/2008)
56 Transcript of Proceedings held on August 29, 2008, before Judge Charles R. Breyer. Court Reporter/Transcriber Katherine Powell Sullivan, CSR, RPR, CRR, Telephone number 415−794−6659. Per General Order No. 59 and Judicial

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 7 of 19

11/14/2008 11/14/2008 11/14/2008 11/17/2008 11/17/2008 11/26/2008 11/26/2008
11/26/2008
12/01/2008
12/30/2008 12/31/2008 01/08/2009 02/20/2009

Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/9/2009. (Sullivan, Katherine) (Filed on 11/13/2008) (Entered: 11/13/2008)
57 MOTION to Compel Further Responses to Rq for Admissions filed by Walter B. Hoye, II. Motion Hearing set for 12/19/2008 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on 11/14/2008) (Entered: 11/14/2008)
58 Brief re 57 MOTION to Compel Further Responses to Rq for Admissions filed byWalter B. Hoye, II. (Attachments: # 1 L.R 37−2 Summary of Responses)(Related document(s) 57 ) (Millen, Michael) (Filed on 11/14/2008) (Entered: 11/14/2008)
59 Declaration of Michael Millen, Esq. in Support of 57 MOTION to Compel Further Responses to Rq for Admissions filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 57 ) (Millen, Michael) (Filed on 11/14/2008) (Entered: 11/14/2008)
60 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Charles R. Breyer on 11/17/08. (be, COURT STAFF) (Filed on 11/17/2008) (Entered: 11/17/2008)
CASE REFERRED to Magistrate Judge Magistrate Judge Joseph C. Spero for Discovery (wh, COURT STAFF) (Filed on 11/17/2008) (Entered: 11/17/2008)
61 Brief IN OPPOSITION TO 58 PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS filed byCity of Oakland. (Marriott, Sarah) (Filed on 11/26/2008) Modified on 12/1/2008 (mcl, COURT STAFF). (Entered: 11/26/2008)
62 Declaration of ANGELA L. PADILLA IN SUPPORT OF 61 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION filed byCity of Oakland. (Marriott, Sarah) (Filed on 11/26/2008) Modified on 12/1/2008 (mcl, COURT STAFF). (Entered: 11/26/2008)
63 Declaration of SARAH C. MARRIOTT IN SUPPORT OF 61 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO REQEUSTS FOR ADMISSION filed byCity of Oakland. (Attachments: # 1 Exhibit EXHIBITS 1−3)(Marriott, Sarah) (Filed on 11/26/2008) Modified on 12/1/2008 (mcl, COURT STAFF). (Entered: 11/26/2008)
64 NOTICE OF REFERENCE; ORDER DENYING 57 Pla's Motion to Compel Further Responses to Requests for Admissions; ORDER TO MEET AND CONFER AND FILE JOINT LETTER. Parties shall meet and coner, in person, regarding the subject matter of the Motions and file a Joint Letter to the Court. (klh, COURT STAFF) (Filed on 12/1/2008) (Entered: 12/01/2008)
65 DEFENDANT CITY OF OAKLAND'S ANSWER to 38 Amended Complaint BY PLAINTIFF byCity of Oakland. (Marriott, Sarah) (Filed on 12/30/2008) Modified on 12/31/2008 (mcl, COURT STAFF). (Entered: 12/30/2008)
66 STIPULATION to Continue Summary Judgment Date by Walter B. Hoye, II. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on 12/31/2008) (Entered: 12/31/2008)
67 ORDER to continue motion proceedings re 66 Stipulation filed by Walter B. Hoye, II, Set/Reset Deadlines as to 66 Stipulation. Motions due by 3/6/2009.. Signed by Judge Charles R. Breyer on 1/06/09. (be, COURT STAFF) (Filed on 1/8/2009) (Entered: 01/08/2009)
68 STIPULATION and [Proposed] Order Regarding Case Schedule by City of Oakland. (Marriott, Sarah) (Filed on 2/20/2009) (Entered: 02/20/2009)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 8 of 19

02/24/2009 02/26/2009 04/06/2009 04/07/2009 04/07/2009 04/07/2009 04/22/2009 04/24/2009 04/30/2009 05/01/2009
05/01/2009
05/01/2009
05/01/2009
05/01/2009

69 STIPULATION and [Proposed] Order Regarding Case Schedule by City of Oakland. (Marriott, Sarah) (Filed on 2/24/2009) (Entered: 02/24/2009)
70 ORDER regarding case schedule re 69 Stipulation filed by City of Oakland Motions due by 5/1/2009. Motion Hearing set for 6/5/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 2/26/09. (be, COURT STAFF) (Filed on 2/26/2009) (Entered: 02/26/2009)
71 STIPULATION to file Second Amended Complaint by Walter B. Hoye, II. (Attachments: # 1 Exhibit A − Second Amended Complaint, # 2 Exhibit B − Second Amended Complaint − Ex A, # 3 Exhibit C − Second Amended Complaint − Ex B, # 4 Proposed Order)(Millen, Michael) (Filed on 4/6/2009) (Entered: 04/06/2009)
72 ORDER allowing filing of second amended complaint re 71 Stipulation, filed by Walter B. Hoye, II. Signed by Judge Charles R. Breyer on 4/7/09. (be, COURT STAFF) (Filed on 4/7/2009) (Entered: 04/07/2009)
73 First MOTION to Relate Case 09−1472 SBA filed by Virginia Hitchcock. (Johnson, Cyrus) (Filed on 4/7/2009) (Entered: 04/07/2009)
74 SECOND AMENDED COMPLAINT Second against all defendants. Filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Millen, Michael) (Filed on 4/7/2009) Modified on 4/8/2009 (mcl, COURT STAFF). (Entered: 04/07/2009)
75 Ex Parte Application for Administrative, MOTION for Leave to File Excess Pages filed by Walter B. Hoye, II. (Attachments: # 1 Declaration of Michael Millen, Esq., # 2 Proposed Order)(Millen, Michael) (Filed on 4/22/2009) (Entered: 04/22/2009)
76 ORDER by Judge Charles R. Breyer granting 75 Ex Parte Application ; granting 75 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 4/24/2009) (Entered: 04/24/2009)
77 ORDER by Judge Charles R. Breyer granting 73 Motion to Relate Case C−09−1472SBA to C−07−6411CRB. (be, COURT STAFF) (Filed on 4/30/2009) (Entered: 04/30/2009)
78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed by City of Oakland. Motion Hearing set for 6/5/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
79 Declaration of ERIN H. REDING in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Attachments: # 1 Affidavit Part 2 of 2)(Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
80 Declaration of MOHAMMED ALI in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
81 Declaration of JACKIE BARBIC in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Attachments: # 1 Affidavit (PART 2 OF 2))(Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
82 Declaration of LINCI COMY in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 9 of 19

05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009

ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
83 Declaration of BARBARA HOKE in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
84 Declaration of VICKI LADEN in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
85 Declaration of NANCY NADEL in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
86 Declaration of LAUREN QUAN in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
87 Declaration of NATALIE TERRY in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
88 Declaration of TAMMY COLE in Support of 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
89 Request for Judicial Notice re 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
90 Appendix re 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Attachments: # 1 Exhibit 1 (Part 1 of 3), # 2 Exhibit 1 (Part 2 of 3), # 3 Exhibit 1 (Part 3 of 3), # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5)(Related document(s) 78 ) (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
91 Proposed Order re 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES by City of Oakland. (Padilla, Angela) (Filed on 5/1/2009) (Entered: 05/01/2009)
92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed by Walter B. Hoye, II. Motion Hearing set for 6/5/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Memo of Points

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 10 of 19

05/01/2009
05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009 05/04/2009 05/04/2009 05/15/2009 05/15/2009

&Authorities, # 2 Proposed Order)(Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
93 Declaration of Michael Millen, Esq. in Support of 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 92 ) (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
94 Declaration of Walter B. Hoye, II in Support of 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed byWalter B. Hoye, II. (Related document(s) 92 ) (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
95 Declaration of Virginia Hitchcock in Support of 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed byWalter B. Hoye, II. (Related document(s) 92 ) (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
96 Declaration of Terry Thompson, Esq. in Support of 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed byWalter B. Hoye, II. (Related document(s) 92 ) (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
97 Request for Judicial Notice re 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed byWalter B. Hoye, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 92 ) (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
98 CERTIFICATE OF SERVICE by Walter B. Hoye, II re 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication regarding Manually Filed Document (Millen, Michael) (Filed on 5/1/2009) (Entered: 05/01/2009)
101 EXHIBIT 7 re 84 Declaration in Support, filed byCity of Oakland. (Related document(s) 84 ) (mcl, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/05/2009)
102 EXHIBIT 8 re 84 Declaration in Support, filed byCity of Oakland. (Related document(s) 84 ) (mcl, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/05/2009)
103 EXHIBIT 9 re 84 Declaration in Support, filed byCity of Oakland. (Related document(s) 84 ) (mcl, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/05/2009)
104 EXHIBIT 10 re 84 Declaration in Support, filed byCity of Oakland. (Related document(s) 84 ) (mcl, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/05/2009)
105 EXHIBITS re 93 Declaration in Support, filed byWalter B. Hoye, II. (Related document(s) 93 ) (mcl, COURT STAFF) (Filed on 5/1/2009) (Entered: 05/05/2009)
99 CERTIFICATE OF SERVICE by City of Oakland re 84 Declaration in Support, (Padilla, Angela) (Filed on 5/4/2009) (Entered: 05/04/2009)
100 NOTICE by City of Oakland re 84 Declaration in Support, MANUAL FILING NOTIFICATION (Padilla, Angela) (Filed on 5/4/2009) (Entered: 05/04/2009)
106 Memorandum in Opposition to 92 Plaintiff's Motion for Summary Judgment filed byCity of Oakland. (Padilla, Angela) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
107 Declaration of Katherine C. Lubin in Support of 106 Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed byCity of Oakland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 106 ) (Padilla, Angela) (Filed on 5/15/2009) (Entered: 05/15/2009)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 11 of 19

05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009 05/15/2009

108 Declaration of Michael F. Johnson in Support of 106 Memorandum in Opposition to Plaintiff's Motion for Summary Judgment filed byCity of Oakland. (Related document(s) 106 ) (Padilla, Angela) (Filed on 5/15/2009) (Entered: 05/15/2009)
109 OBJECTIONS to Evidence in 92 Plaintiff's Motion for Summary Judgment by City of Oakland. (Padilla, Angela) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
110 Appendix of Supplemental Authorities in Support of 106 City of Oakland's Opposition to Plaintiff's Motion for Summary Judgment filed byCity of Oakland. (Padilla, Angela) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
111 NOTICE by City of Oakland of Manual Filing in Support of 106 Opposition to Plaintiff's Motion for Summary Judgment (Padilla, Angela) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
112 Proposed Order Denying 92 Plaintiff's Motion for Summary Judgment and Granting 78 Defendant's Motion for Summary Judgment by City of Oakland. (Padilla, Angela) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
113 Memorandum in Opposition to 78 Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
114 OBJECTIONS to Evidence in 78 Defendant's Motn for Summary Judgment by Walter B. Hoye, II. (Millen, Michael) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
115 Request for Judicial Notice re 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
116 Declaration of Michael Millen, Esq. in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
117 Declaration of Terry Thompson, Esq. in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
118 *** ERRONEOUS ENTRY *** Declaration of Walter B. Hoye, II in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
119 Declaration of Virginia Hitchcock in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
120 *** ERRONEOUS ENTRY *** Declaration of Christiana Downer in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
121 *** ERRONEOUS ENTRY *** Declaration of Elga Kendall in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/15/2009)
122 Declaration of Allison K. Aranda, Esq. in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/15/2009)
123 Declaration of Walter B. Hoye, II (CORRECTED) in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 12 of 19

05/15/2009 05/15/2009 05/15/2009 05/16/2009 05/16/2009 05/16/2009 05/16/2009 05/21/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009
05/22/2009 05/22/2009 05/22/2009 05/26/2009

byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/15/2009) (Entered: 05/16/2009)
128 EXHIBIT 1 re 108 Declaration of Michael F. Johnson filed byCity of Oakland. (Related document(s) 108 ) (mcl, COURT STAFF) (Filed on 5/15/2009) (Entered: 05/18/2009)
129 EXHIBIT 3 re 107 Declaration of Katherine C. Lubin, filed byCity of Oakland. (Related document(s) 107 ) (mcl, COURT STAFF) (Filed on 5/15/2009) (Entered: 05/18/2009)
130 CERTIFICATE OF SERVICE by City of Oakland re 129 Exhibits, 128 Exhibits. (mcl, COURT STAFF) (Filed on 5/15/2009) (Entered: 05/18/2009)
124 Declaration of Elga Kendall (CORRECTED) in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/16/2009) (Entered: 05/16/2009)
125 Declaration of Christiana Downer (CORRECTED) in Support of 113 Memorandum in Opposition to Defendant's Motn for Summary Judgment filed byWalter B. Hoye, II. (Related document(s) 113 ) (Millen, Michael) (Filed on 5/16/2009) (Entered: 05/16/2009)
126 Proposed Order re 78 Defendant's Motion for Summary Judgment by Walter B. Hoye, II. (Millen, Michael) (Filed on 5/16/2009) Modified on 5/18/2009 (mcl, COURT STAFF). (Entered: 05/16/2009)
127 CERTIFICATE OF SERVICE by Walter B. Hoye, II re 117 Declaration in Support re: Exhibit A (DVDs) (Millen, Michael) (Filed on 5/16/2009) (Entered: 05/16/2009)
131 CLERKS NOTICE Continuing Motion Hearing Motion Hearing reset for 6/26/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 5/21/2009) (Entered: 05/21/2009)
132 Reply to Opposition of Defendant to 92 Plaintiff's Motion for Summary Judgment filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 5/22/2009) Modified on 5/26/2009 (mcl, COURT STAFF). (Entered: 05/22/2009)
133 OBJECTIONS to Defendant's Evidence re Opposition to 92 Plaintiff's MSJ by Walter B. Hoye, II. (Millen, Michael) (Filed on 5/22/2009) Modified on 5/26/2009 (mcl, COURT STAFF). (Entered: 05/22/2009)
134 RESPONSE in Support of 92 Plaintiff's Motion for Summary Judgment re: Defendant's Objections to Evidence in Plaintiff's Motn for Summary Judgment filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 5/22/2009) Modified on 5/26/2009 (mcl, COURT STAFF). (Entered: 05/22/2009)
135 Reply Memorandum re 78 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CLAIMS; MEMORANDUM OF POINTS AND AUTHORITIES filed byCity of Oakland. (Padilla, Angela) (Filed on 5/22/2009) (Entered: 05/22/2009)
136 Declaration of ERIN H. REDING in Support of 135 Reply Memorandum, filed byCity of Oakland. (Related document(s) 135 ) (Padilla, Angela) (Filed on 5/22/2009) (Entered: 05/22/2009)
137 Declaration of MOHAMMED ALI in Support of 135 Reply Memorandum, filed byCity of Oakland. (Related document(s) 135 ) (Padilla, Angela) (Filed on 5/22/2009) (Entered: 05/22/2009)
138 RESPONSE to PLAINTIFF'S OBJECTIONS TO EVIDENCE IN THE CITY'S MOTION FOR SUMMARY JUDGMENT by City of Oakland. (Padilla, Angela) (Filed on 5/22/2009) (Entered: 05/22/2009)
139 ERRATA re 93 Declaration in Support, by Walter B. Hoye, II. (Attachments: # 1 Affidavit of ECF Unavailability on 5/22/09)(Millen, Michael) (Filed on 5/26/2009)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 13 of 19

05/26/2009 05/26/2009 05/26/2009 05/26/2009 06/23/2009
06/26/2009
07/14/2009 07/14/2009 07/14/2009
07/15/2009 07/22/2009 07/22/2009 08/04/2009

(Entered: 05/26/2009)
140 ERRATA re 116 Declaration in Support by Walter B. Hoye, II. (Attachments: # 1 Affidavit ECF Unavailability)(Millen, Michael) (Filed on 5/26/2009) (Entered: 05/26/2009)
141 CERTIFICATE OF SERVICE by Walter B. Hoye, II re 140 Errata, 139 Errata (Millen, Michael) (Filed on 5/26/2009) (Entered: 05/26/2009)
142 OBJECTIONS to EVIDENCE IN PLAINTIFF'S OPPOSITION TO 78 THE CITY'S MOTION FOR SUMMARY JUDGMENT by City of Oakland. (Padilla, Angela) (Filed on 5/26/2009) Modified on 5/27/2009 (mcl, COURT STAFF). (Entered: 05/26/2009)
143 CERTIFICATE OF SERVICE by City of Oakland re 142 Objection (Padilla, Angela) (Filed on 5/26/2009) (Entered: 05/26/2009)
144 Transcript of Proceedings held on December 20, 2007, before Judge Charles R. Breyer. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/18/2009. (Ball, Belle) (Filed on 6/23/2009) (Entered: 06/23/2009)
145 Minute Entry: Motion Hearing held on 6/26/2009 before Charles R. Breyer (Date Filed: 6/26/2009) re 92 MOTION for Summary Judgment or, in the alternative, Summary Adjudication filed by Walter B. Hoye, II, 78 MOTION for Summary Judgment OR IN THE ALTERNATIVE SUMMARY ADJUDICATION filed by City of Oakland. (Court Reporter Sahar McVickar.) (be, COURT STAFF) (Date Filed: 6/26/2009) (Entered: 06/26/2009)
146 MOTION ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11 DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11; MEMORANDUM OF POINTS AND AUTHORITIES filed by City of Oakland. (Attachments: # 1 Exhibit A)(Padilla, Angela) (Filed on 7/14/2009) (Entered: 07/14/2009)
147 STIPULATION re 146 MOTION ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11 DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11; MEMORANDUM OF POINTS AND AUTHORITIES by City of Oakland. (Padilla, Angela) (Filed on 7/14/2009) (Entered: 07/14/2009)
148 Proposed Order re 146 MOTION ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11 DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO LOCAL RULE 7−11; MEMORANDUM OF POINTS AND AUTHORITIES [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO CIVIL LOCAL RULE 7−11 by City of Oakland. (Padilla, Angela) (Filed on 7/14/2009) (Entered: 07/14/2009)
149 ORDER by Judge Charles R. Breyer granting 146 Motion re submission of case. (crblc1, COURT STAFF) (Filed on 7/15/2009) (Entered: 07/15/2009)
150 Brief DEFENDANT CITY OF OAKLAND'S SUPPLEMENTARY BRIEF IN SUPPORT OF 78 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT filed by City of Oakland. (Padilla, Angela) (Filed on 7/22/2009) Modified on 7/23/2009 (mcl, COURT STAFF). (Entered: 07/22/2009)
151 Brief − Plaintiff's Supplementary Brief in Support of 92 Plaintiff's Motion for Summary Judgment filed by Walter B. Hoye, II. (Millen, Michael) (Filed on 7/22/2009) Modified on 7/23/2009 (mcl, COURT STAFF). (Entered: 07/22/2009)
152 ORDER by Judge Charles R. Breyer granting 78 Defendant's Motion for Summary Judgment; denying 92 Plaintiff's Motion for Summary Judgment (crblc1, COURT

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 14 of 19

08/04/2009 08/11/2009
08/11/2009 08/12/2009 08/12/2009 08/18/2009
08/20/2009 08/25/2009 09/03/2009 09/03/2009 09/04/2009
09/04/2009 09/04/2009 09/08/2009 09/08/2009 09/10/2009 09/16/2009 09/18/2009

STAFF) (Filed on 8/4/2009) (Entered: 08/04/2009)
153 JUDGMENT in favor of defendant and against plaintiff. Signed by Judge Charles R. Breyer on 8/4/2009. (crblc1, COURT STAFF) (Filed on 8/4/2009) Modified on 8/5/2009 (mcl, COURT STAFF). (Entered: 08/04/2009)
154 NOTICE OF APPEAL as to 152 Order on Motion for Summary Judgment, 153 Judgment by Walter B. Hoye, II. Filing fee $ 455. (Attachments: # 1 Civil Appeals Docketing Statement)(mcl, COURT STAFF) (Filed on 8/11/2009) (USCA Case No. 09−16753) (Entered: 08/12/2009)
155 Statement of Issues re 154 Notice of Appeal by Walter B. Hoye, II. (mcl, COURT STAFF) (Filed on 8/11/2009) (Entered: 08/12/2009)
156 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 154 Notice of Appeal. (mcl, COURT STAFF) (Entered: 08/12/2009)
157 Copy of Notice of Appeal and Docket sheet mailed to all counsel. (mcl, COURT STAFF) (Additional attachment(s) added on 8/12/2009: # 1 Docket sheet) (mcl, COURT STAFF). (Entered: 08/12/2009)
158 STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME TO FILE BILL OF COSTS by City of Oakland. (Attachments: # 1 Affidavit DECLARATION OF SARAH C. MARRIOTT IN SUPPORT OF THE PARTIES' STIPULATION OF EXTENSION OF TIME TO FILE BILL OF COSTS)(Marriott, Sarah) (Filed on 8/18/2009) (Entered: 08/18/2009)
159 ORDER regarding extension of time to file bill of costs re 158 Stipulation, filed by City of Oakland. Signed by Judge Charles R. Breyer on 8/19/09. (be, COURT STAFF) (Filed on 8/20/2009) (Entered: 08/20/2009)
160 BILL OF COSTS DECLARATION OF KATHERINE C. LUBIN IN SUPPORT OF DEFENDANT CITY OF OAKLAND'S BILL OF COSTS by City of Oakland. (Padilla, Angela) (Filed on 8/25/2009) (Entered: 08/25/2009)
161 Transcript Designation and Ordering Form re 154 Notice of Appeal Transcript due by 9/10/2009. (Millen, Michael) (Filed on 9/3/2009) (Entered: 09/03/2009)
162 OBJECTIONS to re 160 Bill of Costs by Walter B. Hoye, II. (Millen, Michael) (Filed on 9/3/2009) (Entered: 09/03/2009)
163 MOTION for Preliminary Injunction Pending Appeal filed by Walter B. Hoye, II. Motion Hearing set for 10/9/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
164 Brief re 163 MOTION for Preliminary Injunction Pending Appeal filed byWalter B. Hoye, II. (Related document(s) 163 ) (Millen, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
165 Proposed Order re 163 MOTION for Preliminary Injunction Pending Appeal by Walter B. Hoye, II. (Millen, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
166 NOTICE by City of Oakland of Additional Transcripts for Designation (Padilla, Angela) (Filed on 9/8/2009) (Entered: 09/08/2009)
167 Transcript Designation and Ordering Form for proceedings held on 6/26/09 (C/R: Sahar McVickar). (slh, COURT STAFF) (Filed on 9/8/2009) (Entered: 09/09/2009)
168 TRANSCRIPT DESIGNATION by City of Oakland for proceedings held on 12/20/07, 5/27/08, 5/30/08, 8/29/08 before Judge Breyer.. (Padilla, Angela) (Filed on 9/10/2009) (Entered: 09/10/2009)
169 USCA Case Number 09−16753 for 154 Notice of Appeal filed by Walter B. Hoye, II. (slh, COURT STAFF) (Filed on 9/16/2009) (Entered: 09/16/2009)
170 Memorandum in Opposition re 163 MOTION for Preliminary Injunction Pending Appeal filed byCity of Oakland. (Padilla, Angela) (Filed on 9/18/2009) (Entered:

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 15 of 19

09/23/2009 09/29/2009 09/30/2009 11/04/2009 11/05/2009 12/31/2009
01/06/2010
01/29/2010 03/24/2010 04/14/2010 08/12/2010 08/04/2011 08/04/2011 08/16/2011

09/18/2009)
171 Reply to Opposition re 163 MOTION for Preliminary Injunction Pending Appeal filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 9/23/2009) (Entered: 09/23/2009)
172 STIPULATION and [Proposed] Order Regarding Schedule of Hearing on Plaintiff's Application for Injunction Pending Appeal by City of Oakland. (Padilla, Angela) (Filed on 9/29/2009) (Entered: 09/29/2009)
173 ORDER by Judge Charles R. Breyer denying 163 Motion for Preliminary Injunction. (crblc1, COURT STAFF) (Filed on 9/30/2009) (Entered: 09/30/2009)
174 NOTICE of Appearance by Katherine Collinge Lubin (Lubin, Katherine) (Filed on 11/4/2009) (Entered: 11/04/2009)
175 NOTICE of Change In Counsel by Benjamin Cunningham Geiger (Geiger, Benjamin) (Filed on 11/5/2009) (Entered: 11/05/2009)
176 Transcript of Proceedings held on 06/26/09, before Judge Charles R. Breyer. Court Reporter/Transcriber Sahar McVickar, CSR, RPR, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/31/2010. (McVickar, Sahar) (Filed on 12/31/2009) (Entered: 12/31/2009)
177 Transcript of Proceedings held on 05/27/2008, before Judge Charles R. Breyer. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/6/2010. (Zinn, Lydia) (Filed on 1/6/2010) (Entered: 01/06/2010)
178 ORDER of USCA as to 154 Notice of Appeal, filed by Walter B. Hoye, II. Apellee's motion for extension of time to file the answering brief is granted in part. Answering brief due 2/16/10. (mcl, COURT STAFF) (Filed on 1/29/2010) (Entered: 01/29/2010)
179 NOTICE of Change In Counsel by Greg James Richardson NOTICE OF CHANGE OF ASSIGNED ATTORNEY (Richardson, Greg) (Filed on 3/24/2010) (Entered: 03/24/2010)
180 ORDER of USCA as to 154 Notice of Appeal, filed by Walter B. Hoye, II. Appellant's motion for leave to file an oversized reply brief is granted. (mcl, COURT STAFF) (Filed on 4/14/2010) (Entered: 04/14/2010)
181 Certified and Transmitted Record on Appeal (documents 101 − 105, 128 − 129) to US Court of Appeals re 154 Notice of Appeal. (mcl, COURT STAFF) (Filed on 8/12/2010) (Entered: 08/17/2010)
182 USCA Opinion as to 154 Notice of Appeal, filed by Walter B. Hoye, II. The decision of the District Court is AFFIRMED in part and REVERSED in part. (mcl, COURT STAFF) (Filed on 8/4/2011) (Entered: 08/04/2011)
183 ORDER of USCA as to 154 Notice of Appeal, filed by Walter B. Hoye, II. Each party shall bear its own costs. (mcl, COURT STAFF) (Filed on 8/4/2011) (Entered: 08/04/2011)
184 CLERKS NOTICE Case Management Statement due by 8/23/2011. Case Management Conference set for 8/26/2011 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 8/16/2011) (Entered: 08/16/2011)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 16 of 19

08/17/2011 08/17/2011 08/23/2011 08/24/2011 08/24/2011 08/24/2011
08/26/2011
10/14/2011 10/14/2011 10/14/2011 10/14/2011 10/14/2011 10/18/2011
10/18/2011 10/20/2011
10/28/2011 11/04/2011
11/04/2011

185 NOTICE of Appearance by Jessica Susan Pers (Pers, Jessica) (Filed on 8/17/2011) (Entered: 08/17/2011)
186 NOTICE by City of Oakland NOTICE OF REMOVAL OF COUNSEL (Pers, Jessica) (Filed on 8/17/2011) (Entered: 08/17/2011)
187 JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by City of Oakland. (Pers, Jessica) (Filed on 8/23/2011) (Entered: 08/23/2011)
188 MANDATE of USCA as to 154 Notice of Appeal, filed by Walter B. Hoye, II. The judgment of this Court, entered 7/28/11, takes effect this date. (mcl, COURT STAFF) (Filed on 8/24/2011) (Entered: 08/24/2011)
189 CLERKS Letter Spreading Mandate to Counsel re 188 . (mcl, COURT STAFF) (Filed on 8/24/2011) (Entered: 08/24/2011)
190 ORDER of USCA as to 154 Notice of Appeal, filed by Walter B. Hoye, II. Appellant's unopposed motion to transfer consideration of attorney's fees on appeal to the district court is granted. (mcl, COURT STAFF) (Filed on 8/24/2011) (Entered: 08/24/2011)
191 Minute Entry: Further Case Management Conference held on 8/26/2011 before Charles R. Breyer (Date Filed: 8/26/2011). Further Case Management Conference set for 10/21/2011 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Court Reporter − Not Reported.) (beS, COURT STAFF) (Date Filed: 8/26/2011) (Entered: 08/26/2011)
192 NOTICE of Appearance by Jessica Susan Pers of Jennifer A. Chin (Pers, Jessica) (Filed on 10/14/2011) (Entered: 10/14/2011)
193 NOTICE of Change In Counsel by Jessica Susan Pers Removal of Benjamin Geiger and Vicki Laden (Pers, Jessica) (Filed on 10/14/2011) (Entered: 10/14/2011)
194 CASE MANAGEMENT STATEMENT (JOINT) filed by City of Oakland. (Pers, Jessica) (Filed on 10/14/2011) (Entered: 10/14/2011)
195 Brief Supplemental filed byCity of Oakland. (Pers, Jessica) (Filed on 10/14/2011) (Entered: 10/14/2011)
196 Brief Supplemental re "Approach" filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 10/14/2011) (Entered: 10/14/2011)
197 NOTICE by City of Oakland re 194 Case Management Statement Supplemental Submission Of Revised Training Materials (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit B1, # 4 Exhibit B2)(Pers, Jessica) (Filed on 10/18/2011) (Entered: 10/18/2011)
198 Brief re Plaintiffs Request For Permanent Injunction Due To Enforcement Exemptions filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 10/18/2011) (Entered: 10/18/2011)
199 MOTION for Permanent Injunction Due to Enforcement Exemptions filed by Walter B. Hoye, II. Motion Hearing set for 12/16/2011 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 11/22/2011. Replies due by 12/2/2011. (Millen, Michael) (Filed on 10/20/2011) (Entered: 10/20/2011)
200 Appeal Record Returned from USCA. (mcl, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
201 Amended MOTION for Permanent Injunction filed by Walter B. Hoye, II. Motion Hearing set for 12/16/2011 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 11/22/2011. Replies due by 12/2/2011. (Millen, Michael) (Filed on 11/4/2011) (Entered: 11/04/2011)
202 Request for Judicial Notice re 201 Amended MOTION for Permanent Injunction filed byWalter B. Hoye, II. (Related document(s) 201 ) (Millen, Michael) (Filed on 11/4/2011) (Entered: 11/04/2011)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 17 of 19

11/22/2011
11/22/2011
12/02/2011 12/02/2011 12/02/2011 12/16/2011 12/16/2011
12/20/2011 12/20/2011 05/31/2012
06/08/2012
06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/08/2012 06/11/2012

203 RESPONSE (re 201 Amended MOTION for Permanent Injunction ) CITY OF OAKLAND'S OPPOSITION TO PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION filed byCity of Oakland. (Pers, Jessica) (Filed on 11/22/2011) (Entered: 11/22/2011)
204 Declaration of JESSICA S. PERS in Support of 203 Opposition/Response to Motion filed byCity of Oakland. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 203 ) (Pers, Jessica) (Filed on 11/22/2011) (Entered: 11/22/2011)
205 REPLY (re 201 Amended MOTION for Permanent Injunction ) filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 12/2/2011) (Entered: 12/02/2011)
206 Declaration of Michael Millen, Esq. in Support of 201 Amended MOTION for Permanent Injunction filed byWalter B. Hoye, II. (Related document(s) 201 ) (Millen, Michael) (Filed on 12/2/2011) (Entered: 12/02/2011)
207 OBJECTIONS to re 204 Declaration in Support by Walter B. Hoye, II. (Millen, Michael) (Filed on 12/2/2011) (Entered: 12/02/2011)
208 ORDER RE TRAINING MATERIALS. Signed by Judge Charles R. Breyer on 12/16/2011. (crblc1, COURT STAFF) (Filed on 12/16/2011) (Entered: 12/16/2011)
209 Minute Entry: Motion Hearing held on 12/16/2011 before Charles R. Breyer (Date Filed: 12/16/2011) re 199 MOTION for Permanent Injunction/Amended MOTION for Permanent Injunction filed by Walter B. Hoye, II. (Court Reporter Sahar Bartlett.) (beS, COURT STAFF) (Date Filed: 12/16/2011) (Entered: 12/19/2011)
210 MOTION for Leave to File Motion for Reconsideration filed by Walter B. Hoye, II. (Millen, Michael) (Filed on 12/20/2011) (Entered: 12/20/2011)
211 ORDER by Judge Charles R. Breyer denying 210 Motion for Leave to File Motion for Reconsideration. (crblc1, COURT STAFF) (Filed on 12/20/2011) (Entered: 12/20/2011)
212 MOTION for Entry of Judgment filed by Walter B. Hoye, II. Motion Hearing set for 7/13/2012 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/14/2012. Replies due by 6/21/2012. (Attachments: # 1 Exhibit A)(Millen, Michael) (Filed on 5/31/2012) Modified on 6/1/2012 (mcl, COURT STAFF). (Entered: 05/31/2012)
213 MOTION for Attorney Fees filed by Walter B. Hoye, II. Motion Hearing set for 7/13/2012 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/22/2012. Replies due by 6/29/2012. (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
214 Request for Judicial Notice re 213 MOTION for Attorney Fees filed byWalter B. Hoye, II. (Related document(s) 213 ) (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
215 Declaration of Michael Millen, Esq. in Support of 213 MOTION for Attorney Fees filed byWalter B. Hoye, II. (Related document(s) 213 ) (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
216 Declaration of Andy Norman, Esq. in Support of 213 MOTION for Attorney Fees filed byWalter B. Hoye, II. (Related document(s) 213 ) (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
217 Declaration of Catherine W. Short, Esq. in Support of 213 MOTION for Attorney Fees filed byWalter B. Hoye, II. (Related document(s) 213 ) (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
218 Declaration of Walter Weber, Esq. in Support of 213 MOTION for Attorney Fees filed byWalter B. Hoye, II. (Related document(s) 213 ) (Millen, Michael) (Filed on 6/8/2012) (Entered: 06/08/2012)
219 STIPULATION WITH PROPOSED ORDER re 212 MOTION Entry of Judgment , 213 MOTION for Attorney Fees to Continue Hearing Dates filed by Walter B. Hoye, II. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 18 of 19

06/14/2012 06/18/2012
06/18/2012 06/20/2012 06/20/2012
07/13/2012 07/13/2012 07/13/2012
07/13/2012 07/13/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012

6/11/2012) (Entered: 06/11/2012)
220 RESPONSE (re 212 MOTION Entry of Judgment ) filed byCity of Oakland. (Attachments: # 1 Exhibit 1)(Pers, Jessica) (Filed on 6/14/2012) (Entered: 06/14/2012)
221 ORDER re 219 STIPULATION WITH PROPOSED ORDER re 212 MOTION Entry of Judgment , 213 MOTION for Attorney Fees to Continue Hearing Dates filed by Walter B. Hoye, II, Reset Deadlines as to 213 MOTION for Attorney Fees. Amended Motion due by 6/20/2012.Responses due by 7/13/2012. Replies due by 7/27/2012. Motion Hearing set for 8/10/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 6/18/2012. (beS, COURT STAFF) (Filed on 6/18/2012) (Entered: 06/18/2012)
Reset Deadlines as to 212 MOTION Entry of Judgment . Motionfor Entry of Judgment Hearing reset for 8/10/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 6/18/2012) (Entered: 06/18/2012)
222 REPLY (re 212 MOTION Entry of Judgment ) filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 6/20/2012) (Entered: 06/20/2012)
223 Amended MOTION for Attorney Fees filed by Walter B. Hoye, II. Motion Hearing set for 8/10/2012 10:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/13/2012. Replies due by 7/27/2012. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on 6/20/2012) (Entered: 06/20/2012)
224 RESPONSE (re 223 Amended MOTION for Attorney Fees ) CITY OF OAKLAND'S OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR ATTORNEY'S FEES filed byCity of Oakland. (Pers, Jessica) (Filed on 7/13/2012) (Entered: 07/13/2012)
225 Declaration of Jessica S. Pers in Support of 224 Opposition/Response to Motion By Jessica S. Pers filed byCity of Oakland. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 224 ) (Pers, Jessica) (Filed on 7/13/2012) Modified on 7/16/2012 (mcl, COURT STAFF). (Entered: 07/13/2012)
226 Declaration of Gary Greenfield In Support of 224 The City of Oakland's Opposition to Plaintiff's Amended Motion For Attorney's Fees filed byCity of Oakland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Appendix A, # 5 Appendix B)(Pers, Jessica) (Filed on 7/13/2012) Modified on 7/16/2012 (mcl, COURT STAFF). (Entered: 07/13/2012)
227 Proposed Order re 223 Motion For Attorney's Fees (Alternative 1) by City of Oakland. (Pers, Jessica) (Filed on 7/13/2012) Modified on 7/16/2012 (mcl, COURT STAFF). (Entered: 07/13/2012)
228 Proposed Order re 223 Motion For Attorney's Fees (Alternative 2) by City of Oakland. (Pers, Jessica) (Filed on 7/13/2012) Modified on 7/16/2012 (mcl, COURT STAFF). (Entered: 07/13/2012)
229 REPLY (re 223 Amended MOTION for Attorney Fees ) filed byWalter B. Hoye, II. (Millen, Michael) (Filed on 7/27/2012) (Entered: 07/27/2012)
230 Declaration of Michael Millen, Esq. in Support of 223 Amended MOTION for Attorney Fees (Supplemental) filed byWalter B. Hoye, II. (Related document(s) 223 ) (Millen, Michael) (Filed on 7/27/2012) (Entered: 07/27/2012)
231 Declaration of Andy Norman, Esq. in Support of 223 Amended MOTION for Attorney Fees (Supplemental) filed byWalter B. Hoye, II. (Related document(s) 223 ) (Millen, Michael) (Filed on 7/27/2012) (Entered: 07/27/2012)
232 Declaration of Catherine W. Short, Esq. in Support of 223 Amended MOTION for Attorney Fees (Supplemental) filed byWalter B. Hoye, II. (Related document(s) 223 ) (Millen, Michael) (Filed on 7/27/2012) (Entered: 07/27/2012)

Case: 3:07-cv-6411 As of: 06/04/2013 12:18 PM PDT 19 of 19

07/30/2012 08/03/2012 08/10/2012
08/10/2012 08/14/2012 08/27/2012 08/29/2012 10/01/2012

233 Declaration of Michael Millen, Esq. in Support of 223 Amended MOTION for Attorney Fees (Amended) filed byWalter B. Hoye, II. (Related document(s) 223 ) (Millen, Michael) (Filed on 7/30/2012) (Entered: 07/30/2012)
234 JUDGMENT re 212 MOTION Entry of Judgment filed by Walter B. Hoye, II. Signed by Judge Charles R. Breyer on 8/2/2012. (beS, COURT STAFF) (Filed on 8/3/2012) (Entered: 08/03/2012)
235 *** ERRONEOUS ENTRY. SEE 236 *** Minute Entry: Motion Hearing held on 8/10/2012 before Charles R. Breyer (Date Filed: 8/10/2012) re 223 MOTION for Attorney Fees filed by Walter B. Hoye, II. (Court Reporter Katherine Sullivan.) (beS, COURT STAFF) (Date Filed: 8/10/2012) Modified on 8/13/2012 (mcl, COURT STAFF). (Entered: 08/10/2012)
236 AMENDED MINUTES RE Motion Hearing held on 8/10/2012 before Charles R. Breyer (Date Filed: 8/10/2012) re 223 MOTION for Attorney Fees filed by Walter B. Hoye, II.(beS, COURT STAFF) (Filed on 8/10/2012) (Entered: 08/10/2012)
237 Declaration of Michael Millen, Esq. in Support of 236 Amended Document (Decl. re Attorney's Fees through 10/8/2010) filed byWalter B. Hoye, II. (Related document(s) 236 ) (Millen, Michael) (Filed on 8/14/2012) (Entered: 08/14/2012)
238 STIPULATION WITH PROPOSED ORDER re FRCP RULE 58(e) MOTION TO STAY TIME FOR APPEAL filed by Walter B. Hoye, II. (Attachments: # 1 Proposed Order)(Millen, Michael) (Filed on 8/27/2012) (Entered: 08/27/2012)
239 ORDER by Judge Charles R. Breyer granting 238 Stipulation to stay time for appeal (beS, COURT STAFF) (Filed on 8/29/2012) (Entered: 08/29/2012)
240 ORDER by Judge Charles R. Breyer granting 223 Motion for Attorney Fees. (crblc1, COURT STAFF) (Filed on 10/1/2012) (Entered: 10/01/2012)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

WALTER B. HOYE, II, Plaintiff-Appellant,
v.
CITY OF OAKLAND, Defendant-Appellee.

No. 09-16753
D.C. No. 3:07-cv-06411-CRB
OPINION

Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted October 8, 2010---San Francisco, California
Filed July 28, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Louis H. Pollak, Senior District Judge. *
Opinion by Judge Berzon

"The Honorable Louis H. Pollak, Senior District Judge for the U.S. District Court for Eastern Pennsylvania, Philadelphia, sitting by designation.
9649

9652

HoYE v. CITY OF OAKLAND

COUNSEL
For Plaintiff-Appellant Walter B. Hoye, II: Michael Millen, Law Offices of Michael Millen, Los Gatos, California; Catherine B. Short (argued), Life Legal Defense Foundation, Ojai, California.
For Defendant-Appellee City of Oakland: Angela L. Padilla, Sarah C. Marriott, Benjamin C. Geiger, and Katherine C. Lubin, Greg J. Richardson (argued), Orrick, Herrington & SutcliffLLP, San Francisco, California; John Russo and Vicki Laden, Oakland City Attorney's Office, Oakland, California.
For Amicus Curiae American Centerfor Law and Justice: Jay Alan Sekulow, Stuart J. Roth, Walter M. Weber, American Center for Law and Justice, Washington, D.C.
For Amici Curiae California Women's Law Center, The California Black Women's Health Project, The Connecticut Women's Education and Legal Fund, The Feminist Majority Foundation, Equal Rights Advocates, Legal Momentum, Legal Voice, The California National Organization For Women, Physicians for Social Responsibility-Los Angeles, The Southwest Women's Law Center, the Women's Law Project, and The Women's Law Center of Maryland: J. Cacilia Kim and Vicky L. Barker, California Women's Law Center, Los Angeles, California; Alexandra A. Bodnar, Casey J. T. McCoy, Squire, Sanders & Dempsey L.L.P., Los Angeles, California.

HoYE v. CITY OF OAKLAND

9653

For Amici Curiae Abortion Care Network, American College of Obstetricians and Gynecologists, American Medical Women's Association, American Nurses Association, Center for Reproductive Rights, Medical Students for Choice, National Abortion Federation, National Family Planning and Reproductive Health Association, and Physicians for Reproductive Choice and Health: Janet Crepps & Jennifer Mondino, Center for Reproductive Rights, New York. New York.

For Amici Curiae Planned Parenthood Affiliates of California, The California Medical Association, Alameda-Contra Costa Medical Association, Planned Parenthood Golden Gate, Planned Parenthood Los Angeles, Planned Parenthood Mar Monte, Planned Parenthood/Orange and San Bernardino Counties, Planned Parenthood of Santa Barbara, Ventura, & San Luis Obispo Counties, and Planned Parenthood: Shasta-Diablo: Beth H. Parker & Rachel L. Chanin, Arnold & Porter L.L.P., San Francisco, California.

OPINION
BERZON, Circuit Judge:
Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert. These instances of public persuasion constitute the lifeblood of a self-governing people's liberty,

9654

HoYE v. CITY OF OAKLAND

and so even when the beliefs propagated seem to some the "rankest error" that "naturally would offend" any listener, our founding charter deems such encounters "in the long view, essential to enlightened opinion and right conduct on the part of the citizens ofa democracy." Cantwell v. Connecticut, 310 U.S. 296, 309-310 (1940). This case calls on us to apply that principle.

****
Walter Hoye, a minister, is a so-called "sidewalk counselor." He regularly stands outside a reproductive health clinic in the City of Oakland, seeking to engage women in what he calls a "friendly conversation" to dissuade them from having an abortion.

Concerned about disruptive anti-abortion protests outside clinics, the Oakland City Council enacted a so-called bubble ordinance (the "Ordinance"), its name derived from the 100foot metaphorical "bubble" the Ordinance creates around the entrances to reproductive health clinics. Within such zones, the Ordinance makes it an offense knowingly and willfully to approach within eight feet of an individual seeking entry to the clinic if one's purpose in approaching that person is to engage in conversation, protest, counseling, or various other forms of speech. The Ordinance is largely modeled after the Colorado statute held constitutional in Hill v. Colorado, 530 U.S. 703 (2000).'

Hoye was convicted of two separate violations of the Ordinance. (His convictions were reversed on procedural grounds during the pendency of this appeal.) He now challenges the Ordinance in this § 1983 action, contending that the Ordinance infringes upon the freedom of speech gnaranteed by the First Amendment to the United States Constitution. Hoye also

Both the Ordinance and the Colorado statute are reproduced in an appendix to this opinion.

HoYE v. CITY OF OAKLAND

9655

argues that the Ordinance violates the federal constitution's Due Process Clause, as well as the state and federal guarantees of equal protection of the laws. A theme central to his challenges is his contention that Oakland does not enforce the Ordinance evenhandedly, as it has a policy of not enforcing the Ordinance against volunteers who engage in pro-abortion speech outside reproductive health clinics. The District Court granted Oakland's motion for sllmmary judgment on all of Hoye's claims, and Hoye appealed. We now affirm in part, reverse in part, and remand for the determination of appropriate relief.

I.

A.

Several reproductive healthcare clinics are located within the City of Oakland (the "City"). For decades, anti-abortion activists have gathered outside them, trying to dissuade patients from seeking abortions and employees from performing them. Their insistent importuning has caused patients and employees to feel harassed, even intimidated. Also, in the past, protestors have blocked entrances to clinics, forcing patients and staff to climb through windows and fire escapes. Protestors have also sometimes mobbed patients' vehicles as they pull up to the clinic, preventing patients from stepping out.

Since approximately early 2006, Walter Hoye has stood outside the Family Planning Specialists clinic in Oakland, seeking to discourage women entering the clinic from having an abortion. Hoye's stated goal is "to have a personal, one-onone conversation with each woman concerning her individual situation and what is causing her to consider abortion." He also often holds a sign proclaiming, "Jesus loves you and your baby. Let us help." He says that he has "never called a woman

9656

HoYE v. CITY OF OAKLAND

a baby killer or murderer or told her she would rot in hell, or expressed any judgment like that.,,'

Hoye reports that "[fJor most of the time I have been going, there has been only two or three other pro-life people there." He also states that he has never seen a "pro-life counselor block patients from getting to the [c]linic"; instead, he says, "We consciously try to space ourselves out on the sidewalk ... [and] make sure there is room to pass." Video recordings of Hoye's activities, although incomplete, corroborate Hoye's account of his sidewalk counseling.

For a number of years, "escorts" have helped patients approaching reproductive health clinics to navigate their way into the building when anti-abortion protestors are present. Hoye calls the escorts "pro-abortion activists." Barbara Hoke, an escort, provides a slightly different account: According to her, escorts are volunteers who, although not "legally affiliated" with the clinics, wait outside them, often wearing hright orange vests bearing the name of the clinic in front of which they are volunteering. "The escort's job," in Hoke's words, "is to create a clear pathway to the clinic so that patients seeking to enter the clinic may do so without being intimidated, harassed, or feeling physically threatened."

Hoye charges that "[t]hese activist escorts tell women not to listen to [him], that he is only there to harass [them], that [they] will only be safe with the escorts, and [that they should] not ... take his literature or information because it is inaccurate." Hoye also says that escorts, "with their bodies, form barriers" to prevent him from approaching patients, make noise (such as "lalalala") to drown out Hoye, and have "assign[ed] some of their number to stand in front of [Hoye] with blank pieces of cardboard, thus blocking women from seeing [Hoye's] sign." The City, by and large, does not con-

'There is no indication in the record to the contrary, nor any suggestion that Hoye has engaged in any physical obstruction or violence.

HoYE V. CITY OF OAKLAND

9657

test Hoye's account of the escorts' activities. Also, at Hoye's criminal trial, Hoke to a degree confIrmed that account, testifying that she thought it important for escorts ''to block a message that is inappropriate, that is meant to harm, is meant to intimidate, and meant to prevent a woman from just the quiet privacy of a moment in her life that is no one else's business."3

On December 18, 2007, the Oakland City Council passed Ordinance No. 12849. Hoye fIled the complaint in this case the next day, asking for a temporary restraining order. At a telephonic hearing on the request for a TRO, the District Court expressed reservations about the Ordinance's constitutionality and strongly suggested that the City amend it. The City, acquiescing, adopted an amended ordinance, Ordinance No. 12860, on February 5, 2008.

Section 3(b) of the Ordinance, as amended, makes it unlawful, within 100 feet of the entrance of a "reproductive health care facility," to

willfully and knowingly approach within eight (8) feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of counseling, harassing, or interfering with such person or vehicle occupant.

The Ordinance then goes on to defIne the three activities it regulates-"counseling," "harassing," and "interfering"quite broadly.

3The District Court ruled that Barbara Hoke's testimony in Hoye's crinrinal trial "is hearsay and does not meet the requirements ofthe fonner testimony exception in Fed. R. Civ. P. 804(b)(1)." But the City did not object to the evidence. "Defects in evidence submitted in opposition to a motion for summary judgment are waived absent a motion to strike or other objection." FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 485-86 (9th Cir. 1991) (quotation omitted).

9658

HoYE v. CITY OF OAKLAND

We dwell on the definition of "counseling," as it is instructive for two reasons. First, the Ordinance defines "counseling" relatively expansively: "Counseling" means "engaging in conversation with, displaying signs to, and/or distributing literature." Ord. § 2(e). So, under the Ordinance, within 100 feet of a clinic, a speaker wishing to engage in conversation with, display signs to, or distribute literature to a person entering the clinic must first obtain that person's consent before approaching within eight feet of that person.

Second, the definition of "counseling" was one of the sections of the Ordinance amended at the suggestion of the District Court. Originally, the Ordinance had defined "counseling" so as to restrict only "engaging in conversation ... displaying signs ... and/or distributing literature ... in an effort to harass, intimidate, or persuade the individual not to access such reproductive health services." (Emphasis added). Thus, this provision, as originally enacted, was explicitly one-sided: A speaker who attempted to persuade a woman entering a reproductive health clinic to access reproductive health services was not "engaging in conversation" within the meaning of the Ordinance. Section (3)(b), the Ordinance's operative provision, reiterated the Ordinance's onesided prohibition. It made it a misdemeanor to approach persons without consent for the purpose of counseling, harassing or interfering with them "in connection with seeking reproductive health services, or for the purpose of interfering with that person's or vehicle occupant's obtaining or providing reproductive health services." Ord. § 3(b) (emphasis added). At District Judge Breyer's suggestion, the City amended the Ordinance to strike all of the language italicized above. As a result, the Ordinance on its face no longer distinguishes in the key operative provisions between pro-abortion and antiabortion advocacy.

On May 13, 2008, the Oakland Police Department arrested Hoye and cited him for violating the Ordinance. An Alameda County jury convicted him, in January, 2009, of two counts

HoYE V. CITY OF OAKLAND

9659

(for separate incidents) of "harassment of persons seeking health care" in violation of § 3(b) of the Ordinance. Hoye appealed his convictions to the Appellate Division of the same court, which reversed the convictions on two grounds, neither pertinent here. See People v. Hoye, 115 Cal. Rptr. 3d 876, (Cal. App. Super. Ct. 2010). Shortly after the parties argued this case before us, the district attorney dismissed the prosecution against Hoye.

In the meantime, in this federal action, the parties filed cross-motions for summary judgment. On August 4, 2009, the District Court granted the City's motion in full.

B.

Oakland's ordinance is not the only legislative attempt to facilitate access to reproductive healthcare facilities by imposing special restrictions on speech and conduct in the space immediately outside clinic entrances. See Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248; California Freedom of Access to Clinic and Church Entrances Act, Cal. Penal Code §§ 423 et seq.; Cal. Penal Code § 602.11. Nor is this case the first to raise difficult questions concerning the accommodation of women's right to an abortion with antiabortion activists' right to free speech. In the last two decades, the Supreme Court has three times addressed the First Amendment rights of anti-abortion protestors outside reproductive healthcare facilities. See Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994); Schenck v. Pro-Choice Network of Westem New York, 519 U.S. 357 (1997); Hill v. Colorado, 530 U.S. 703 (2000)."

"Since Hill, at least two circuits have decided cases involving so-called bubble ordinances and their application to circumstances involving sidewalk counselors and escorts. See McGuire v. Reilly (McGuire 1),260 F.3d 36 (1st Cir. 2001) (reversing a grant of a preliminary injunction against a statote's enforcement); McGuire v. Reilly (McGuire Il), 386 F.3d 45 (1st Cir. 2004) (affirming the district court's decision to uphold the statote on the merits); Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) (upholding parts of an ordinance similar to Oakland's, but striking down other parts); see also McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009) (upholding amended Massachusetts statute in face of a facial challenge).

9660

HoYE v. CITY OF OAKLAND

In Hill, the third case in this trilogy, the Supreme Court upheld, in the face of a First Amendment challenge, a Colorado statute markedly similar to the Ordinance. See Colo. Rev. Stat § 18-9-122. The statute, like the Ordinance, created a buffer zone of 100 feet outside healthcare facilities. Within that zone, the statute prohibited knowingly approaching within eight feet of another person, without that person's consent, for the purpose of ''passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling" that person. Id.

Because the Ordinance is modeled on the Colorado statute upheld in Hill, that opinion controls much of our analysis in this case and leads us to the conclusion that the Ordinance is a facially valid restriction on the time, place, and manner of speech. But Hill did not concern in any way the activities of escorts-that is, individuals engaged in counteracting the effect of anti-abortion protestors' speech by facilitating potential patients' access to clinics. Accordingly, there was no contention in Hill that Colorado enforced its statute only against anti-abortion speakers. In contrast, Oakland appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services and so has enforced the Ordinance against anti-abortion speakers but not pro-abortion speakers. We conclude that, in doing so, Oakland unconstitutionally suppresses speech based on the content of its message.

Further, because Hill did not concern activities similar to those of the escorts in this case, the Supreme Court did not consider whether it would be constitutional to apply an ordinance like Oakland's to speakers whose attempts to convey their message are systematically countered by those opposed to that message. In this opinion, we take up that question briefly and, guided by the principle that government must consider the actual conditions speakers encounter when it restricts their speech, explain that it may be unconstitutional to apply the Ordinance to speakers if, under the circumstances

HoYE V. CITY OF OAKLAND

9661

surrounding a particular reproductive health clinic at a particular time, the application of the Ordinance would effectively foreclose speakers' ability to co=unicate their message. But because we would be required to speculate as to prospective facts, we leave the determination as to whether the Ordinance's application to Hoye actually has that effect for another day and a developed record.

For these reasons, we affirm the District Court's holding that the Ordinance is facially valid, but reverse the remainder of its ruling and remand with instructions to devise appropriate relief.

II.

Before turning to the validity of Oakland's bubble ordinance, we must address an antecedent question, namely, whether we should decide this case at all in light of the ''national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." Younger v. Harris, 401 U.S. 37, 41 (1971);
see Columbia Basin Apartment Ass 'n v. City of Pasco, 268 F.3d 791, 799-800 (9th Cir. 2001). "The Younger doctrine ...
counsels federal-court abstention when there is a pending state proceeding." Moore v. Sims, 442 U.S. 415, 423 (1979). State criminal proceedings against Hoye were co=encedand completed-during the pendency of this federal action.' But the circumstances in which federal courts should decline to exercise their jurisdiction "are carefully defined and remain the exception, not the rule." Gilbertson v. Albright, 381 F.3d 965, 969 n.2 (9th Cir. 2004) (en banc) (quotation omitted). We conclude that this case does not fit into the "carefully defined" Younger exception to mandatory federal jurisdiction.

'Neither party has raised the Younger doctrine, but it "may be raised sua sponte at any time in the appellate process." Columbia Basin, 268 F.3d at 799. That the state court proceedings have now ended is not alone a sufficient reason that Younger does not apply. See Beltran v. California, 871 F.2d 777, 782 (9th Cir. 1988).

9662

HoYE v. CITY OF OAKLAND

Hoye filed this federal case in December, 2007, well before the district attorney filed a criminal complaint in state court on June 6, 2008. Cf Agriesti v. MGM Grand Hotels, Inc. 53 F.3d 1000, 1001 (9th Cir. 1995) (holding that when a citation had issued but no charging document had been filed with state court, ''there [were] no ongoing state judicial proceedings" for purposes of Younger abstention). Still, "where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris . .. apply in full force." Hicks v. Miranda, 422 U.S. 332, 350 (1975). The commencement of state proceedings only ceases to require federal abstention after the federal court proceedings have moved beyond an "embryonic stage." Doran v. Salem Inn, Inc., 422 U.S. 922, 929 (1975).

Here, the federal proceedings had begun nearly six months before the commencement of criminal proceedings in state court. By that time, the District Court had denied Hoye's motion for a temporary restraining order, it had held four status conferences and hearings in this case, and the City Council had amended the Ordinance in response to the District Court's expression of its deep reservations about the Ordinance's constitutionality. Thus, by the time state proceedings began, the federal proceedings had been long pending, and the District Court's intervention in the case had resulted in a significant change in the relative positions of the parties. We therefore conclude that the federal proceedings had progressed beyond an embryonic stage, so that "considerations of economy, equity, and federalism counsel against Younger abstention." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984); see id. (concluding that "a federal court action in which a preliminary injunction is granted has proceeded well beyond the 'embryonic stage' "); Adultworld Bookstore v. City ofFresno, 758 F.2d 1348, 1350-51 (9th Cir. 1985) (holding that Younger abstention was not required when state criminal proceedings began after the district court had conducted

HoYE v. CITY OF OAKLAND

9663

an "extended evidentiary hearing on the question of a preliminary injunction" but had not issued the injunction).

We therefore tum to consideration of the challenge to Oakland's "bubble ordinance."

III.

[I] In Hill, the Supreme Court held that Colo. Rev. Stat § 18-9-122(3) was facially constitutional under the time, place, and manner analysis set forth in Ward v. Rock Against Racism, 491 U.S. 781 (1989), and Clarkv. Cmty.for Creative Non-Violence, 468 U.S. 288 (1984). Hill, 530 U.S. at 719730. In those two cases, the Supreme Court explained that government may impose restrictions on speech in a public forum so long as the restrictions "[(1)] are justified without reference to the content of the regulated speech, [(2)] ... are narrowly tailored to serve a significant goverrnnental interest, and [(3)] ... leave open ample alternative channels for communication of the information." Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293).

The relevant portions of the Ordinance largely replicate the Colorado statute the Supreme Court considered in Hill, so our analysis of the Ordinance's facial constitutionality is mostly controlled by that case.' But the Ordinance does depart from the Colorado statute in some details. We discuss the two most important such departures but conclude that they are not of decisive significance to the Ordinance's facial constitutionality.

•Hill's reasoning, ifnot always its result, has been criticized by scholars of various stripes. See Colloquium, Professor Michael W. McConnell's Response, 28 Pepp. L. Rev. 747 (2001) (quoting criticisms of Hill by Profs. Michael McConnell, Laurence H. Tribe, Erwin Chemerinsky, and Akhil Arnar).

9664

HoYE V. CITY OF OAKLAND A.

The first significant difference between the Ordinance and the Colorado statute is that the Ordinance creates a buffer zone only outside of "reproductive health care facilit[ies]," Ord. § 3(b), although the Colorado statute created a buffer zone outside of all health care facilities, including hospitals. Colo. Rev. Stat § 18-9-122(3). In fact, the Ordinance does not apply to hospitals that provide reproductive health services or to reproductive health facilities operated or owned by hospitals.' The Ordinance's preamble suggests that the reasons hospitals, and clinics owned or operated by hospitals, are excluded are that "offices and facilities that have patient stays of shorter duration may be more vulnerable ... on account of the layout and design of their facilities and parking areas as well as their staff deployment" and that "the facilities with the fewest resources for providing adequate security . . . are those not affiliated with hospitals."

Hoye contends that the narrower range of the Ordinance shows that it, unlike the statute in Hill, is not content-neutral. But we fail to see how, under Hill, the Ordinance's application to a narrower class of healthcare facilities could make it content-discriminatory. It is true that the Ordinance is more closely targeted to the kinds of facilities where anti-abortion activists are likely to gather. But Hill rejected as "flawed" the ''theory that a statute restricting speech becomes unconstitutionally content-based because of its application to the specific locations where that discourse occurs." ld. at 724 (quotation omitted). Instead, the Supreme Court explained that the Colorado statute was content-nentral because it "was not adopted because of disagreement with the message" ofthe

'The Ordinance defines "a reproductive health facility" as "any facility
that provides reproductive health services [defined elsewhere to include
counseling and informational services1that is not licensed as a hospital,
and is not owned, and/or operated by a licensed hospital." Ord. § 2(b)
(emphasis added).

HoYE v. CITY OF OAKLAND

9665

speech it regulates, id. at 719 (quotation omitted), and because ''the statutory language makes no reference to the content of the [regulated] speech." ld.; see id. at 725 (explaining that the statute is content-neutral because it "is not limited to those who oppose abortion" and "it applies to all . . . demonstrators whether or not the demonstration concerns abortion"); Ward, 491 U.S. at 791 ("A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has
an incidental effect on some speakers or messages but not others." (emphasis added»; Menotti v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) ("That Order No.3 predominantly affected protestors with anti-WTO views did not render it content based.")."

For similar reasons, we cannot fmd a defect of constitutional proportions in the fact that the Ordinance regulates approaching a narrower class of individuals than the Colorado statute. The Colorado statute imposed restrictions on approaching anyone within the buffer zone, see Colo. Rev. Stat. § 18-9-122(3) (''No person shall knowingly approach another person . . . ." ), while the Ordinance only regulates knowingly approaching individuals "seeking to enter" the reproductive healthcare facility. Ord. § 3(b). The only reason that this departure from the Colorado statute might be relevant is that it might exacerbate the already disproportionate effect the Colorado statute may well have had on anti-abortion messages as compared to pro-abortion messages, or to messages on subjects having nothing to do with abortion. But, again, Hill instructs that, in regulating speech immediately outside reproductive health facilities, disproportionate effect is not of

OWe need not--and do not-interpret these statements to mean that a disproportionate effect on ooe message never matters in determining whether a facially neutral regulation is content-based. It may be that in some circumstances a facially neutral regulation of speech will so disproportionately affect ooe message as to require a court carefully to consider the statute's tenns to be sure that they do not incorporate a subtle contentbased standard.

9666

HoYE V. CITY OF OAKLAND

decisive significance to the content-neutrality inquiry. 530 U.S. at 724-25.

[2] In sum, given Hill, neither the fact that the Ordinance applies only to speech outside reproductive health care facilities, not hospitals generally, nor the fact that it protects only those "seeking to enter" the facilities renders it content-based." Instead, we look to whether the Ordinance's substantive terms are content-based, and to whether the statute was enacted "because of disagreement with the message" of the speech it regulates, Hill, 530 U.S. at 719 (quotation omitted), to determine whether it is content-neutral.

B.

Hoye does not contend that the statute was enacted because of substantive disagreement with the message of the speech it regulates, nor does the record contain any evidence that it was. We must therefore examine whether the Ordinance's substantive terms make facial distinctions between categories of speech based on content.

[3] We begin again with a comparison with Hill, to see whether there are any differences that would render the Ordinance, but not the Colorado statute, content-based. The Ordinance does regulate slightly different categories of speech than the Colorado statute in Hill. The Colorado statute restricted approaching another person "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with" that person. Colo. Rev. Stat. § 18-9-122(3). The Ordinance restricts approaching others "for the purpose of counseling, harassing,

"That the Ordinance's restriction on speech is limited to fewer locations than the Colorado statute does not make it more vulnerable to constitutional challenge at the narrow-tailoring or ample alternative channels stages of the time, place, and, manner inquiry. If anything, the opposite would appear to be true, as more locations remain available to the speaker.

HoYE v. CITY OF OAKLAND

9667

or interfering with" them, § Ord. 3(b), and then defines "counseling," "harassing," and "interfering" so as to incorporate the same expressive activities restricted by the Colorado statute. See Ord. §§ 2(c), (d) & (e). But the Ordinance then describes in a new way the regulated category of speech: The Ordinance's definition of "counseling" includes "engaging in conversation," Ord. § 2(e), a category of speech not expressly restricted by the Colorado statute. Hoye makes no argument that this additional language in the Ordinance marks a decisive difference from the Colorado statute for purposes of the time, place, and manner inquiry. We do not see how it could.

[4] For one thing, the Colorado statute explicitly restricted "counseling" and "education," which are largely co-extensive with "engaging in conversation," especially in the circumstances to which the Ordinance applies. More importantly, Hill instructed that, when analyzing the face of a statute to determine its content-neutrality, the relevant question is whether the statute draws distinctions among subjects of discussion, not among means or types of communication. 530 U.S. at 723. Oakland's addition of an express restriction on "engaging in conversation" in no way changes the fact that it, like the Colorado statute, "applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists and missionaries." ld. Hill therefore requires that we deem the addition of the "engaging in conversation" language immaterial to the Ordinance's facial content-neutrality.

The "engaging in conversation" language also does not meaningfully affect the narrow-tailoring and ample alternative channels of communication tests as those tests were applied by Hill. Hill concluded that the Colorado statute passed both these inqniries insofar as the spoken word is concerned because courts "must accord a measure of deference to the
judgment of the ... [l]egislature" as to whether ''the 8-foot
interval is the best possible accommodation of the competing interests at stake," id. at 727, and because the statute might "assist[] speakers' efforts to communicate their messages

9668

HoYE v. CITY OF OAKLAND

[by] encourag[ing] the most aggressive and vociferous protestors to moderate their confrontational and harassing conduct, and thereby make it easier for thoughtful and law-abiding sidewalk counselors ... to make themselves heard." Id. That analysis remains unaltered by Oakland's addition of the phrase "engaging in conversation" to the Ordinance.

C.

Aside from pointing to differences between the text of the Colorado statute and that of the Ordinance, Hoye makes two additional attempts to explain why Hill is not fatal to his facial challenge to the Ordinance. Neither is persuasive.

Hoye's first such argument is more an attempt to reargue Hill than to distinguish it. He contends that the Ordinance is not content-neutral because it distinguishes between demonstrators' speech and "panhandling, solicitation and vending." None of the latter types of speech is expressly restricted by the Ordinance, even though they are expressive activities that raise similar concerns about ''nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching" as demonstrators' speech. Id. at 724.

The obvious flaw in this argument is that the Colorado statute upheld in Hill did not in terms prohibit panhandling, solicitation, or vending either. The Supreme Court nonetheless held that the Colorado statute "does not distinguish among speech instances that are similarly likely to raise the legitimate concerns to which it responds." Id. Hoye suggests, in effect, that Hill made a conditioned finding of contentneutrality (i.e., the statute was content-neutral as between "protest, education and counseling" and "casual conversation," see id. at 721-22), but possibly not as between protest and panhandling. Nothing in Hill suggests such a limited holding.

Hoye's second argument approaches one that we ultimately find persuasive as an aspect of the selective enforcement con-

HoYE v. CITY OF OAKLAND

9669

sidered later, but it is not properly part of a facial challenge. As Hoye points out, in Forsyth County v. Nationalist Movement, the Supreme Court stated that "[i]n evaluating respondent's facial challenge, we must consider the county's authoritative constructions of the ordinance, including its own implementation and interpretation of it." 505 U.S. 123, 131 (1992). Hoye argues that this principle requires us to consider Oakland's enforcement practices in addressing his facial challenge. We disagree.

The Supreme Court followed its statement in Forsyth with three citations. All three are to portions of cases in which the Supreme Court used the past practice of a statute's implementation to narrow the statute to save it in the face of a vagueness challenge. See Ward, 491 U.S. at 795-796; City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 n.11 (1988); Gooding v. Wilson, 405 U.S. 518, 524-28 (1972). Hoye points to no instance in which a court has used evidence of a statute's implementation to make it more facially vulnerable. Cf McGuire II, 386 F.3d at 58 ("Logically, there is no way (save perhaps when overbreadth is an issue) that an authority's non-binding and non-authoritative interpretation of a facially valid statute can make it more facially constitutionally vulnerable than it would be otherwise.").'o Thus, although it is true that where "a well-understood and uniformly applied practice has developed that has virtually the force of a judicial construction," City ofLakewood, 486 U.S. at 770 n.ll, courts may consider that executive practice for
'°It is conceivable that an enforcement policy, even an unwritten one,
could be inseparable from the statute or ordinance, so that the constitutionality of the statute or ordinance may depend on the constitutionality of the unwritten policy. See. e.g., Virginia v. Hicks, 539 U.S. 113, 121 (2003) (considering the constitutionality of a written policy and an unwritten exception together because the Virginia Supreme Court had decided the two were not severable). Whether state laws are severable is, of course, a matter of state law. See id. We have no reason to think that California courts would find Oakland's unwritten implementation policy inseparable from the Ordinance as written.

9670

HoYE v. CITY OF OAKLAND

purposes of a facial challenge, they may do so only to save a statute, not to condemn an otherwise valid one for being content-based.

Illustrative of this distinction is Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir. 2006). In that case, we considered a written implementation instruction as an authoritative interpretation of a city ordinance, id. at 1035, and determined that the instruction provided an "adequate limiting construction" on certain provisions of the ordinance. Id. at 1042. At the same time, we concluded that the instruction "fatally underminerd]" a different provision of the ordinance, but specifically held that the ordinance "as implemented by the Instruction . .. cannot be enforced," while noting that the ordinance itself "passes constitutional muster," and so could be enforced if implemented in a different manner. Id. at 1043.

This practice---relying on enforcement policies to save a statute from a facial challenge but not to invalidate a statute that is valid as written but not as enforced-is consistent with ''the well-established principle that statutes will be interpreted to avoid constitutional difficulties." Frisby v. Schultz, 487 U.S. 474, 483 (1988). Moreover, it would make little sense to invalidate a statute that is constitutional as written when only its implementation is defective. Doing so would only require legislative bodies to undertake the pointless exercise of reenacting laws that were perfectly valid as enacted on the first go around.

Hoye's evidence of Oakland's implementation of the Ordinance therefore cannot alter our conclusion that the Ordinance withstands Hoye's facial challenge. Nonetheless, Hoye's appeal to the City's enforcement practices is otherwise relevant. We understand Hoye to argue that the City enforces the Ordinance in a content-discriminatory manner, or-much the same point-that the rule that the City actually enforces, distinct from the Ordinance, is content discriminatory and

HoYE v. CITY OF OAKLAND

9671

unconstitutional. It is to these essentially similar possibilities that we now turn."

IV.

We agree with Hoye that there are grave constitutional problems with the manner in which the City has understood and enforced its Ordinance. In considering the City's enforcement and application of the Ordinance, we follow an analysis that is precise and technical, perhaps regrettably so. But

"Hoye's allegations of vagueness need not detain us. Hoye contends that the Ordinance's use of the terms "approach" and "consent" are impermissibly vague. But the Ordinance uses these terms in precisely the same manner as the Colorado statute. See Hill, 530 U.S. at 732-33. The Ordinance cannot therefore be vague in these respects for the same reasons tbat Hill held the Colorado statute not to be vague. See id.
To distinguish Hill, Hoye argues tbat the Ordinance only makes it unlawful to "willfully and knowingly approach within eight (8) feet of any person seeking to enter' a reproductive healthcare facility, Ord. § 3(h), not to approach a person exiting a healthcare facility. Hoye appears to be right: while the statote elsewhere refers to individuals exiting clinics, see Ord. §§ 2(d), (e) & (t), it does not in fact make it an offense to approach a person exiting the clinic. This omission is likely the result of a failure of legislative draftsmanship. But that the City thinks the Ordinance, as currently written, covers individuals leaving the clinics does not render the statote vague; the text is perfectly clear. An individual prosecuted by the City for counseling someone exiting the clinic would have a good defeuse, but that defeuse would lie in the Ordinance's text, not in the vagueness doctrine.
Hoye also observes tbat the statute restricts approaching "any occupied motor vehicle seeking entry" to a reproductive healthcare facility; he wonders "how long is [a vehicle] considered to be 'seeking entry' versus being simply parked at the curb?" Despite Hoye's protests to the contrary, this quibble amounts to pettifoggery. The only plausible reading of the Ordinance is tbat a vehicle is seeking entry so long as one of its occupants is seeking entry to the clinic. Unoccupied parked cars do not count. The Ordinance provides any person "of ordinary intelligence a reasonable opportonity to understand what conduct irs] prohibited." Hill, 530 U.S. at 732; see id. at 733 (dismissing plaintiffs' vagueness challenge as involving no more than "hypertechnical theories as to what the statute covers'').

9672

HoYE v. CITY OF OAKLAND

beneath the doctrinal intricacies lie two simple principles: that govemment may not favor speakers on one side of a public debate, and that government must not substantially foreclose, as a practical matter, speakers' ability to communicate their message.

A.

Hoye's challenge to Oakland's enforcement of the Ordinance relies primarily on three pieces of evidence concerning the City's enforcement policy: an Oakland Police Department training video, a Police Department training bulletin, and the deposition of an Oakland Police Department captain pursuant to Fed. R. Civ. P. 30(b)(6). The Oakland Police Department training materials outline the Ordinance in vague terms that do not deviate in any substantial way from the Ordinance itself, which we have held is facially constitutional. Captain Toribio's deposition, quoted at length below, is more troubling as it suggests a fum policy of enforcing the Ordinance essentially as it was written before being amended-that is, as applying only to efforts to persuade women approaching reproductive health clinics not to receive abortions or other reproductive health services, and not to communications seeking to encourage entry into the clinic for the purpose of undergoing treatment. That account is fully corroborated by-and we find dispositive----Oakland' s admissions throughout this litigation that it understands and enforces the Ordinance in a content-discriminatory manner.

In response to Hoye's notice of deposition pursuant to Fed. R. Civ. P. 30(b)(6), Oakland produced Police Department Captain Toribio as the person most knowledgeable of Oakland's "policies, procedure, and interpretations relating to enforcement" of the Ordinance. Captain Toribio testified that "the City's enforcement policy is not to enforce the Bubble Ordinance against escorts acting as escorts." By this, Toribio apparently meant that the City does not enforce the Ordinance in such a manner as to require escorts to receive consent

HoYE v. CITY OF OAKLAND

9673

before approaching patients to engage in speech with them. Toribio's further testimony confirms this interpretation:

Q. Now, if [an1 officer . . . informs you that [an1
escort had approached a woman within eight feet, without her consent, and said "Don't listen to the demonstrators," would that be considered to be a violation of the ordinance or not? THE WITNESS: Our policy is clear in what it says.

A comment like that is not harassment or intimidating. It is language used to help facilitate their entrance into the facility or maybe even their exit.

Q. If an escort were to say, "Don't take those leaflets they're going to try to hand to you," would that be considered a violation? THE WITNESS: No.

Q. If an escort were to say "Those leaflets have inaccurate information in them, " would that be considered a violation?" A.No.

Q. If an escort were to say, "It's your right to have an abortion," would that be considered a violation? A. Our policy is clear. That would not be a violation of the policy.

Q. And, again, I'm sorry. I may have taken a shortcut here in each one of these hypotheticals.

I'm meaning an escort approaches within eight feet of a patient seeking to enter the facility without the patient's consent. And, again, that does not change your answer, that these escorts saying these

9674

HoYE v. CITY OF OAKLAND

things is not a violation of the ordinance? A. Correct.12

At oral argument, the City confirmed that it would not enforce the Ordinance against an escort who approached a patient, without consent, and said, "May I help you into the clinic?" but that it would enforce it against a sidewalk counselor who said, "May I talk to you about alternatives to the clinic?" The City explained its position as being that speech that "facilitates access" to the clinic does not trigger the Ordinance's consent requirement, while speech that does not facilitate access does trigger it."

12The District Court ruled that many of the above questions were properly objected to as calling for speculation, and that Toribio's answers did not establish ''that escorts make such statements, or that police tum a blind eye to them." But Toribio's answers were not speculative; instead, they simply stated, with some certainty, what the City's enforcement policy is. Moreover, all of the questions were asked in an attempt to ascertain the City's enforcement policy. In a sense, questions about a general policy are, by their very nature, always hypothetical: a policy provides what officers should do under certain hypothetical circumstsnces. We would be setting an impossibly high bar for plaintiffs if we were to require them to establish a municipality's policy and then to exclude as inadmissible a responsible police official's testimony as to what the municipality's policy is.
"At times, the City has seemingly formulated its position as being that speech that is incidental to facilitating access is not covered by the Ordinance. In distinguishing between incidental and purposive speech, we take Oakland to be arguing that there is a basis in the Ordinance to distinguish between escorts' speech and Hoye's speech because the Ordinance ouly restricts approaching "for the purpose" of engaging in various forms of communicative activity. The contention is that escorts acting as escorts do not approach patients for the purpose of engaging in the relevant forms of communicative activity; they approach for the purpose of guiding women into the clinic.
But Oakland's reliance on the Ordinance's "for the purpose of' language must be evenhanded if it is to be persuasive (or, for that matter, constitutional). If the escorts' speech does not violate the Ordinance because it is incidental to some non-communicative goal, then Hoye's speech could similarly be characterized as incidental to his goal of keeping women from entering the clinic and aborting their fetuses. Yet the City

HoYE v. CITY OF OAKLAND

9675

On the face of the Ordinance, there is no distinction between speech facilitating access and speech that inhibits access. Of course, that distinction used to exist. The Ordinance, as originally enacted, singled out speech made "in an effort to harass, intimidate, or persuade the individual not to access such reproductive health services," Ord. § 2(f) (emphasis added) and "for the purpose of interfering with [a] person's ... obtaining or providing reproductive health services." Ord. § 3(b). After the hearing on the application for a temporary restraining order, the City, at District Judge Breyer's suggestion, amended the Ordinance to remove the quoted language from the Ordinance's text. But, as Captain Toribio's deposition and the City's representations at argument make clear, the City continues to enforce the Ordinance as if the distinction remained. Embracing that distinction as the fulcrum of an enforcement policy, even for a facially valid enactment, is inconsistent with the First Amendment. We first explain why that is so, and then we consider the practical implications of the City's decision to read an unconstitutional distinction into a facially valid ordinance.

B.

The City's policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral. It is the epitome of a content-based speech restriction. "A regulation is content-based if ... the regulation, by its very terms, singles out particular content for differential treatment." Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th CiT. 2009) (en banc) (quotation omitted). "[T]he fundamental principle behind content analysis is that

clearly does not understand the Ordinance to exempt Hoye's speech. In any case, even if the distinction between purposive and incidental speech could coherently be made, we have said that privileging the latter over the former ''turns the First Amendment on its head." Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998).

9676

HoYE v. CITY OF OAKLAND

government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." Menotti, 409 F.3d at 1128 (quotation omitted); see also Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829 ("Viewpoint discrimination is ... an egregious form of content discrimination''). In Hill, the Supreme Court reiterated these principles, holding that Colo. Rev. Stat. § 18-9-122 was content-neutral because it applies "to all protest, to all counseling, and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision." 530 U.S. at 725 (quotation omitted) (emphasis added). "That is the level of neutrality that the Constitution demands." ld.

[5] The City's enforcement policy does not meet this level of neutrality. To distinguish between speech facilitating access and speech that discourages access is necessarily to distinguish on the basis of substantive content. Asking a woman "May I help you into the clinic?" facilitates access; "May I talk to you about alternatives to abortion?" discourages it. Telling a woman, "It's your right to have an abortion!" facilitates access; telling her, "If you have an abortion, you will regret it!" discourages it. Here, the City has conceded, both at oral argument and through Captain Toribio's deposition, that its policy is to permit speech on one side of a controversial public debate, but not on the other. The City's implementation and enforcement of the Ordinance is therefore indubitably content-based.

Possibly the City reads Hill as authorizing the government to regulate speech so as to protect patients from any speech that offends their dignity or privacy, even if the offense stems not from the manner of speech but from the words that are spoken. Protecting privacy and dignity will often require distinctions between content: "You're a babykiller!" offends a woman's dignity and privacy; "It's your right to have an abortion!" often will not.

HoYE v. CITY OF OAKLAND

9677

In some cases, government regulation of speech with the aim of protecting the dignity and privacy of individuals has been permitted. See, e.g., Frisby, 487 U.S. at 484-87 (describing ''the State's interest in protecting the well-being, tranquility, and privacy of the home" and permitting the State to "prohibit offensive speech [that is] intrusive" on that privacy (quotation omitted)); cf Berger, 569 F.3d at 1054 (observing that the State may, in some cases, restrict speech to protect "the psychological [and] physical well-being of the [hospital] patient held 'captive' by medical circumstance"). But such cases do not sanction content-based restrictions. They only accept the dignity and privacy rationale as a sufficiently strong governmental interest to justify a content-neutral time, place, and manner restriction.

As the Supreme Court has recently explained, whether the State may regulate speech because of its offensive nature "turns largely on whether that speech is of public or private concern." Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011).14 Regulations of speech in public fora on matters of public concern directed at others within the public forum must be content-neutral or survive strict scrutiny. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street v. New York, 394 U.S. 576, 592 (1969) (emphasis added); see Schenck, 519 U.S. at 383 (explaining that "[a]s a general matter, we have indicated that in public debate our own citizens must tolerate

14For example, the First Amendment does not necessarily require a showing of actual malice by all plaintiffs seeking to recover for the torts of outrage or intentional infliction of emotional distress, but it does require that showing of plaintiffs who are "public figures and public officials." Hustler Magazine v. Fallwell, 485 U.s. 46, 55 (1988). "Deciding whether speech is of public or private concern requires [a court] to examine the content, form, and context of that speech, as revealed by the whole record." Snyder, 131 S.Ct. at 1216 (quotation omitted). But there can be no doubt that speech in a public forum on a controversial public matter directed at others within the public forum is speech of public concern.

9678

HoYE v. CITY OF OAKLAND

insulting, and even outrageous, speech" (emphasis added) (quotation omitted»; Boos v. Barry, 485 U.S. 312, 322 (1988) (holding a regulation imposing a dignity standard on public speech inconsistent with the First Amendment); Cantwell v. Connecticut, 310 U.S. 296, 309 (1940) (protecting religious and political speech on a sidewalk even though it "naturally would offend ... all ... who respect the honestly held religious faith of their fellows"); see generally Robert C. Post, The Constitutional Concept ofPublic Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601 (1990) (arguing that First Amendment doctrine prohibits the enforcement of rules imposing norms of civility and dignity on public discourse).

If Hill had upheld the Colorado statute as permissible because the sidewalk counselors' speech directed at patients seeking reproductive health services was not speech of public concern or because those patients were not truly engaged in public debate, an effort by the City to "facilitate access" by regulating offensive speech might come closer to passing constitutional muster. But while a few passages in Hill might suggest otherwise, see 530 U.S. at 716 (noting that "[t]he recognizable privacy interest in avoiding unwanted communication varies widely in different settings"), the Supreme Court ultimately upheld the Colorado statute because it determined the statute to be content-neutral, not because it held that the State could legitimately protect listeners from speech that was offensive only because of the words spoken. Nothing in Hill undermines the bedrock principle that regulations of public speech designed to protect listeners in public fora from substantively offensive speech are fundamentally incompatible with content-neutrality. Oakland's enforcement policy is therefore a content-based regulation of speech.

[6] "Content-based regulations are presumptively invalid." R.A. V. v. City of St. Paul, 505 U.S. 377, 382 (1992). A content-based regulation of public speech is only permissible if "it serves a compelling government interest in the least

HoYE v. CITY OF OAKLAND

9679

restrictive manner possible." Berger, 569 F.3d at 1052. The City has made no argument that its policy of enforcing the Ordinance can survive such strict scrutiny. Indeed, no persuasive such argument can be made. While ensuring access to women's health care may well be a sufficiently compelling state interest for purposes of strict scrutiny, the City's enforcement policy is not the least restrictive means of pursuing that interest. "The existence of adequate content-neutral alternatives . . . undercuts significantly any defense" of a
content-based regulation of speech. R.A. v., 505 U.S. at 395
(quotation omitted). Enforcing the Ordinance as written, that is, as also applying to speech that encourages patients to enter the clinic, is a content-neutral altemative that is less inimical to the values at the heart of the First Amendment than the City's current policy of exempting such speech. The City has not made any attempt to show that exempting speech facilitating access from the Ordinance's strictures furthers the City's stated goal of providing access to reproductive health services, let alone to the degree that would allow us to conclude that the enforcement policy is the least restrictive means of ensuring access to reproductive health services. We therefore cannot conclude that the Ordinance, as understood and enforced by the City, is one of those "rare ... regulation[s] restricting speech because of its content" that is nonetheless permissible. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 818 (2000).

C.

The apparent divergence in our two conclusions-that Oakland's bubble ordinance is facially constitutional but that the City interprets and enforces the Ordinance in an impermissibly content-based manner-is not unprecedented. In Menotti, for example, we concluded that Seattle's Civil Emergency Order No. 3 was a constitutional time-place-and-manner restriction on its face, 409 F.3d at 1142, but remanded for a trial on whether "it was the policy of the City to apply Order No.3 in a manner that excluded only anti-WTO protestors."

9680

HoYE v. CITY OF OAKLAND

Id. at 1148. Courts must be willing to entertain the possibility that content-neutral enactments are enforced in a contentdiscriminatory manner. If they were not, the First Amendment's guarantees would risk becoming an empty formality, as government could enact regulations on speech written in a content-neutral manner so as to withstand judicial scrutiny, but then proceed to ignore the regulations' content-neutral terms by adopting a content-discriminatory enforcement policy.

While courts must undoubtedly make doctrinal space for challenges to the content-discriminatory enforcement of content-neutral rules, it is not clear into which precise category of constitutional claims such challenges fit. See, e.g., Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002) (observing, without elaboration, that a pattern of denying waivers to disfavored speakers under an otherwise valid statute "would of course be unconstitutional"). The First Circuit has considered a challenge to a Massachusetts statute, similar to the Ordinance in many respects, that regulated speech in the space outside of clinics in which escorts and anti-abortion protestors were present. See McGuire 1,260 F.3d 36 (1st Cir. 2001) (reversing grant of preliminary injunction); McGuire II, 386 F.3d 45 (1st Cir. 2004) (affIrming denial of permanent injunction). The McGuire cases upheld the Massachusetts statute as facially valid, McGuire I, 260 F.3d at 43-50; McGuire II, 386 F.3d at 56-69, and also rejected a challenge to the Commonwealth's enforcement of the statute, McGuire II, 386 F.3d at 59-65, classifying the selective enforcement challenge as an "as-applied" attack. Although we ultimately depart from its reasoning in some respects, we find the First Circuit's discussion of that "as-applied" challenge instructive.

The First Circuit explained that, in its view, "there are different types of as-applied attacks." McGuire II, 386 F.3d at 61; see also Brown, 586 F.3d at 289 (also considering "two types of as-applied challenges" to a bubble ordinance). While the "paradigmatic" type of as-applied challenge is one that

HoYE v. CITY OF OAKLAND

9681

"tests" a statute's "constitutionality in one particular fact situation while refusing to adjudicate the constitutionality of the law in other fact situations," the First Circuit concluded that the sidewalk counselors must be making an as-applied challenge "of a different sort." McGuire II, 386 F.3d at 61. It explained that this second kind of as-applied challenge ''must be based on the idea that the law itself is neutral and constitutional in all fact situations, but that it has been enforced selectively in a viewpoint discriminatory way." Id. at 62. "Such a challenge," it explained, "is dependent on the factual evidence provided as to how the statutory scheme has in fact operated vis-a-vis the plaintiffs." Id. The First Circuit then concluded that "some showing of intent on the part of government officials probably is necessary to make out" the second kind of as-applied First Amendment claim, id. at 63, before ultimately determining that there was no such evidence in the record. Id. at 65.

Our Circuit has taken a slightly different path. The First Circuit's "second" kind of as-applied challenge is essentially a selective enforcement claim that adopts the framework of Yick Wo v. Hopkins, 118 U.S. 356 (1886), but substitutes "speech content" for one of the more familiar protected classes, such as ''race'' or "national origin." We have made clear that such a claim is available, but have usually not categorized it as an "as-applied" First Amendment challenge. Instead, we have generally classified such challenges as selective enforcement equal protection claims. See Foti, 146 F.3d at 635 (distinguishing between a selective enforcement claim and an as-applied challenge and noting that the latter "does not implicate the enforcement of the law against third parties"; also observing that "[i]nadequate evidence of . . . alleged discriminatory enforcement of the ordinance does not defeat [an] as-applied challenge"); Vlasak v. Superior Court ex reI. County of Los Angeles, 329 F.3d 683, 690 (9th Cir. 2003) (explaining that the petitioner's "as-applied challenge appears to conflate her argument that the ordinance is unconstitutional as specifically applied to her and her claim of

9682

HoYE v. CITY OF OAKLAND

selective prosecution"); Rosenbaum v. City and Cnty. of San Francisco, 484 F.3d 1142, 1152-57 (9th Cir. 2007) (considering a viewpoint discrimination claim as a selective enforcement claim under the Equal Protection Clause); but cf Menotti, 409 F.3d at 1146-47 (referring to a selective enforcement challenge as an "as-applied" challenge).

Any difference between these two approaches is, at least in this case, semantic rather than substantive. Under both the First Circuit's "as-applied" approach and our standard "selective enforcement" approach, a plaintiff must show that a municipality's content-discriminatory enforcement of an ordinance is the result of an intentional policy or practice. See McGuire II, 386 F.3d at 63-64; Brown, 586 F.3d at 292; Rosenbaum, 484 F.3d at 1155; Menotti, 409 F.3d at 1147.

Because both the First Circuit's "as-applied" approach and our Circuit's selective-enforcement approach require that some official policy have caused the content-discriminatory enforcement, both approaches converge with a third analytical framework: namely, a facial challenge to the city's enforcement policy (as distinct from a facial challenge to the legislative enactment as written). Under both the First Circuit approach and the selective enforcement approach, plaintiffs are generally required to show the existence of an unconstitutional policy by extrapolating from a series of enforcement actions. They must argue, in effect, that these actions demonstrate that the municipality is enforcing against them a rule that is distinct from the constitutionally valid enactment. In other words, they "attack[] [an] unwritten policy as manifested in the [municipality's] application of its written [ordinance]." Tipton v. Univ. ofHawaii, 15 F.3d 922,927 (9th Cir. 1994). Logically speaking, "[s]uch an attack bears much in common with a facial challenge on written policy." ld. The primary-indeed, perhaps only-difference is an evidentiary one. Plaintiffs have no difficulty establishing what a policy is when the policy is written. An unwritten policy, by contrast, is usually harder to establish. Often, the only way to establish

HoYE v. CITY OF OAKLAND

9683

whether such a policy exists is to extrapolate from enforcement data, in many cases a formidable task.

But that is not so in this case. Here, unlike in McGuire II or any of the other cited authorities, the plaintiffs do not need to extrapolate from concrete enforcement actions to determine whether the government has a policy of enforcing the neutral written rule in a content-discriminatory manner. Instead, the City's own pronouncements defmitively articulate a contentdiscriminatory enforcement policy. As a result, the three analytical approaches-the First Circuit's "second kind" of asapplied challenge, our Circuit's "selective enforcement" challenge, and a facial attack on an unwritten rule----converge in all respects. Oakland has acknowledged having a policy of enforcing the Ordinance based on the content of speech. That policy is unconstitutional, no matter the analytical approach taken.'s

D.

[7] Although the circumstances of this case do not require us to choose the applicable doctrinal category, they do present a remedial puzzle. Oakland insists that it has no enforcement policy distinct from the Ordinance. Although we have no reason to doubt that Oakland's content-based interpretation of the Ordinance is made in good-faith, we reject that interpretation as a plausible reading of the Ordinance; indeed, if we did not, we would have to declare the Ordinance facially invalid under Hill.'· In our view, Oakland is instead enforcing a dif-

'SAs noted, Hoye has advanced state and federal equal protection challenges to the Ordinance and its enforcement, in addition to his First Amendment claims.
"The meaning of the Ordinance is ultimately a state-law question so it would be "our duty, of course, to accept [an authoritative] state judicial construction of the ordinance." Shuttlesworth v. City ofBirmingham, 382 U.S. 87,91 (1965). There is no pertinent such construction, however. And we very much doubt that the California courts would interpret the Ordinance as containing an exception for speech that "facilitates access" to the clinic, as no such exception is apparent in the Ordinance's text, and the addition of one would, far from preserving the Ordinance's constitutionality, foreclose it.

9684

HoYE v. CITY OF OAKLAND

ferent, unwritten, rule----one with an unmistakable resemblance to the old version of the Ordinance, the one that restricted engaging in conversation "in an effort to harass, intimidate, or persuade that individual not to access . . . reproductive health services." Because that rule-i.e., the Ordinance as erroneously understood by Oakland-is impermissibly content-discriminatory, we must craft a remedy designed to foreclose its continued enforcement, while preserving the facially valid Ordinance.

It would seem anomalous for a court to enjoin the enforcement of a facially constitutional Ordinance. On the other hand, it would be meaningless to enjoin Oakland's erroneous interpretation of the Ordinance: Oakland has insisted that there is no distinction between the actual Ordinance and what it enforces. In other words, there is no question that, under Hill, the City can restrict the speech of anti-abortion protestors like Hoye, but it is only constitutional for it to restrict anti-abortion protestors' speech under a rule that also restricts pro-abortion speech. The Ordinance, as written, is such a valid rule; the Ordinance as interpreted and enforced by Oakland is not. The question is how to ensure that the rule enforced by Oakland is a content-neutral one, i.e. the rule that we believe the Ordinance actually pronounces, and not a content-discriminatory rule, i.e., the rule that Oakland erroneouslyenforces.

[8] The District Court, with its greater familiarity with the facts and parties, is better positioned than we to address this remedial question. On remand, the District Court should enter declaratory judgment in favor of Hoye, declaring that (1) Oakland's policy of exempting speech "facilitating access" to clinics from the coverage of the Ordinance violates the First Amendment and that (2) the Ordinance, as written, does not exempt such speech and so is facially constitutional. If the District Court concludes that declaratory relief alone will be inadequate to change the City's enforcement policy (and that Hoye satisfies the standard criteria for injunctive relief), it

HoYE v. CITY OF OAKLAND

9685

should then consider enjoining the City from continuing to enforce the Ordinance."

v.

[9] We have discussed what McGuire II called a "second kind" of as-applied challenge, addressing it as identical to a facial challenge to the City's enforcement policy. Hoye also brings a paradigmatic as-applied challenge, arguing that it is unconstitutional to apply the Ordinance to him because, given all the circumstances, his ability to communicate is unduly constricted. The First Circuit considered such a challenge but rejected it. McGuire II, 386 F.3d at 61. Again, we fmd the First Circuit's discussion helpful, but conclude in the end that we cannot resolve this challenge given our other holdings.

As a general matter, a facial challenge is a challenge to an entire legislative enactment or provision. See Foti, 146 F.3d at 635 (explaining that a statute is facially unconstitutional if "it is unconstitutional in every conceivable application, or it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad") (internal quotation marks omitted). If it does not charge statutory overbreadth, "a facial challenge must fail where the statute has a plainly legitimate sweep." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quotation omitted). A paradigmatic as-applied attack, by contrast, challenges only one of the rules in a statute, a subset of the statute's applications, or the application of the statute to a specific factual circumstance, under the assumption that a court can "separate valid from invalid subrules or applications." Richard H. Fallon, Jr., As-Applied

"Of course, even if the District Court enjoins Oakland's enforcement of the Ordinance altogether, the City could later apply for the injunction to be lifted or modified if it made a sufficient showing that it had adopted and would apply an evenhanded enforcement policy. See Dombrowksi v. Pfister, 380 U.S. 479, 492 (1965); Younger v. Harris, 401 U.S. 37, 50-51 (1971).

9686

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and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1334 (2000); see Legal Aid Servo v. Legal Aid of Oregon, 608 F.3d 1084, 1096 (9th Cir. 2010) ("Facial and as-applied challenges differ in the extent to which the invalidity of a statute need be demonstrated." (quotation omitted) (emphasis in original)). Because the difference between an asapplied and a facial challenge lies only in whether allOT only some of the statute's subrules (or fact-specific applications) are being challenged, the substantive legal tests used in the two challenges are "invariant." Id. (quotation omitted).

Applying these principles, the First Circuit in McGuire II first observed that the ''plaintiffs d[id] not and cannot argue that they are different types of actors, or that they are involved in a different type of fact situation, from the ones on the basis of which the law was already upheld facially." McGuire II, 386 F.3d at 61. It reasoned then that the as-applied challenge brought by sidewalk counselors necessarily failed, because "the fact situation that [they] are involved in here is the core fact situation intended to be covered by this buffer zone statute, and it is the same type of fact situation that was envisioned by this court when the facial challenge was denied." Id. While we agree with the First Circuit's analytical framework, Hoye here argues that he is "involved in a different type of fact situation[] from the one[] on the basis of which the law was ... upheld facially." Id.

Our facial analysis of the statute was controlled by Hill, a case in which there was no suggestion that the anti-abortion activists' ability to communicate in accord with the challenged statute was being impeded by the efforts of opposing speakers. In concluding that the Colorado statute, as a facial matter, was narrowly tailored and left open ample alternative channels of communication, the Supreme Court reasoned, for example, that "[s]igns, pictures, and voice itself can cross an 8-foot gap with ease." Hill, 530 U.S. at 729. That observation led the Supreme Court to the conclusion that the Colorado

HoYE v. CITY OF OAKLAND

9687

statute would "not have any adverse impact on the readers' ability to read signs displayed by demonstrators." [d. at 726.

As noted at the outset, a valid time-place-and-manner regulation must "leave open ample alternative channels for communication." Ward, 491 U.S. at 791 (quotation omitted). "[A]n alternative is not ample if the speaker is not permitted to reach the intended audience." Berger, 569 F.3d at 1049 (quotation omitted). In the factual circumstances assumed in Hill and controlling our analysis as to the facial challenge, the Ordinance does leave "ample alternative channels for communication. "

Hoye contends, however, that escorts regularly inhibit his speech by covering up his sign and drowning out his spoken words. The escorts have, of course, their own constitutionally protected free-speech interests at stake, including one in expressing their own firm conviction that the emotional wellbeing of women requires insulating them from those seeking to challenge, sometimes starkly and unpleasantly, their decision to consider an abortion procedure. Still, the escorts' freespeech interests do not diminish their on-the-ground impact on Hoye's prospects for communicating his message.

The First Circuit, and the District Court here, dismissed concerns about the impact of escorts' activities on antiabortion protestors' ability to communicate their messages on the basis that the escorts' interactions with sidewalk counselors were mere ''private jousting in the speech marketplace," McGuire II, 386 F.3d at 60, involving no state action. That characterization is accurate to the degree the escorts are communicating opposing messages, as the First Amendment offers no protection against countervailing speech. See Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).

As to the relevance of efforts by the escorts to prevent Hoye's message from being communicated, the factual predicate of an as-applied challenge does not need to be created by

9688

HoYE v. CITY OF OAKLAND

the State. In Hill, for instance, the Supreme Court expressly invited as-applied challenges where "[s]pecial problems arise [because] clinics have particularly wide entrances or are situated within multipurpose office buildings." 530 U.S. at 730. The State does not design clinics with wide entrances or place them in multipurpose office buildings; instead, the only relevant state action would be the application of the statute to such factual settings. Cf Galvin v. Hay, 374 F.3d 739,754-55 (9th Cir. 2004) (sustaining an as-applied challenge in light of a "sight line partially obstructed by trees" relevant at the narrow-tailoring stage).

So whether the Ordinance is unconstitutionally restricting Hoye's speech is ultimately a causation question based on the particular facts: Does the Ordinance as applied to the actual circumstances-including the attempts by others to stifle Hoye's speech, as opposed to simply countering it with opposing messages-foreclose ample altemative channels of communication? In other words, Hoye will bear the burden of showing that it is the Ordinance's requirement that he obtain consent to approach, not the activities of escorts alone, that deprives him of ample alternative means of communication.

[10] In the end, we cannot determine on the present record whether Hoye can meet that burden. Any resolution of Hoye's paradigmatic as-applied challenge could ouly be relevant to future applications of the Ordinance. We have previously declined to entertain as-applied challenges that would require us to speculate as to prospective facts. See, e.g., Hotel Emp. & Rest. Emp. Int'l Union v. Nev. Gaming Comm 'n, 984 F.2d 1507, 1517 (9th Cir. 1993); Polykoff v. Collins, 816 F.2d 1326, 1338 (9th Cir. 1987); cf WolfSon v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010) (explaining that ripeness doctrine includes a ''prudential component" that requires evaluation of ''the fitness of the issues for judicial decision"). We have already held Oakland's application of the Ordinance to Hoye, under its current enforcement policy, unconstitutional because tainted by the content-discriminatory policy. Even if the

HoYE v. CITY OF OAKLAND

9689

application of the Ordinance has in the past deprived Hoye of ample channels of communication, that defect may be cured if Oakland begins to enforce the Ordinance in an evenhanded manner. Consequently, Hoye's second kind of as-applied challenge is dependent on fluid and future facts.

VI.

To recapitulate, we reach three separate conclusions.

First, the Ordinance is facially constitutional. That is to say, we do not find any relevant differences between the Ordinance's purpose and text and those of the Colorado statute that the Supreme Court held to be constitutional in Hill.

Second, as to Hoye's challenge to the enforcement of the Ordinance, we hold that Oakland's enforcement policy is a constitutionally invalid, content-based regulation of speech. By adopting that policy, Oakland has taken sides in a public debate in a manner that, as Hill itself explained, the Constitution does not permit. But because this problem is not a problem with the Ordinance itself, we remand this case to the District Court to craft a remedy that ensures that Oakland will adopt and henceforth apply a policy that enforces the Ordinance as written, that is, in an evenhanded, constitutional manner.

Third, as to Hoye's challenge to whether Oakland may apply the Ordinance to situations in which doing so would prevent him from communicating his message, we conclude that the success of the challenge depends on Oakland's future enforcement policy and the particular circumstances in which that policy may be applied. We therefore do not reach that challenge but also do not preclude Hoye from bringing such a challenge in the future.

For the foregoing reasons, we AFFIRM in part and REVERSE in part the ruling of the District Court. We

9690

HoYE v. CITY OF OAKLAND

REMAND the case to the District Court with instructions to grant Hoye's motion for summary judgment in part and to grant him relief consistent with this opinion.

HoYE v. CITY OF OAKLAND

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APPENDIX

mended Oakland City Council Ordinance No. 1286018

WHEREAS, safe and unimpeded access to reproductive health care services is critically and uniquely important to the public health, safety, and welfare so that persons desiring or needing access to such services should not be intimidated, hampered, impeded, harassed, or restrained from obtaining those services; and

WHEREAS, persons attempting to access reproductive health care facilities to obtain reproductive health care services have been subject to harassing or intimidating activity from extremely close proximity, tending to hamper or impede their access to those facilities and services; and

WHEREAS such activity in close proximity subverts the right to privacy of those reproductive health care services, a right that is protected by the United States Constitution and the Freedom of Access to Clinic Entrances Act, U.S.C.S. Section 248, and is explicitly guaranteed in California's Constitution, Article I, Section I, including the right to seek and obtain all health care services permitted under the laws of this States; and

WHEREAS, such activity interferes with a person's right to seek reproductive health care services and counseling which such persons are entitled to seek and obtain; and

WHEREAS, offices and facilities that have patient stays of shorter duration may be more vulnerable to such subversion of rights on account of the layout and design of their facilities and parking areas as well as their staff deployment; and

1·Strikeout text shows amendments from originally enacted version.

9692

HoYE v. CITY OF OAKLAND

WHEREAS, the facilities with the fewest resources for providing adequate security and safety to individuals seeking access to reproductive health services are those not affiliated with hospitals; and

WHEREAS, the adverse physiological and emotional effects created by such harassing or intimidating activities may pose health risks, interfere with medical treatment, diagnosis or recovery, or cause persons to delay or forego medical treatment; and

WHEREAS, this Ordinance does not preclude all protesting, picketing, demonstrating, leafleting, or educational activities near a facility providing reproductive health care services, and in particular, is not intended to preclude any lawful picketing, leafleting, and/or free speech, but is a necessary content-neutral time, place, and manner restriction intended to reconcile and protect the rights of persons rendering or seeking reproductive health care with the First Amendment rights of demonstrators; and

WHEREAS, existing federal and state laws do not adequately protect the rights of those seeking or providing health care services, now, therefore

THE COUNCIL OF THE CITY OF OAKLAND DOES ORDAIN AS FOLLOWS:

Chapter 8.50 is added to the Oakland Municipal Code to read as follows:

Section 1. Title and purpose.

This chapter shall be known as the "access to reproductive health care facilities ordinance." The City Council finds that every person in the City of Oakland has a basic and fundamental right to privacy protected by the United States Constitution and explicitly guaranteed in California's Constitution,

HoYE v. CITY OF OAKLAND

9693

Article 1, Section 1, including the right to seek and obtain all health care services, permitted under the laws of this State. Central to this right is the need to secure access to all reproductive health care services. Access to these services is a matter of critical importance not only to the individual, but also to the health and welfare of all residents of the City of Oakland and the region. Intentional efforts to harass an individual or prevent that individual from exercising his or her right to seek and obtain reproductive health care services are therefore contrary to the interests of the people of Oakland.

This Ordinance is not intended to create any limited, designated, or general public fora. Rather it is intended to protect those who seek access to constitutionally protected reproductive health services from conduct which violates their rights.

Section 2. Definitions.

a. "Reproductive health services" refers to all medical, surgical, counseling, referral, and informational services related
to the hwBaB: repfa8llSwi8 system, iBeluBing serviees Q1lfdng
Jlfeglillftey or the termination of a pregnancy, whether such services are provided in a clinic, physician's office, or other facility other than a licensed hospital, but not if provided at a clinic or other facility owned and/or operated by a licensed hospital.

b. "Reproductive health care facility" refers to a facility licensed pursuant to Chapter 1 (co=encing with Section 1200) of Division 2 of the Health and Safety code or any other facility that primarily provides reproductive health services that is not licensed as a hospital, and is not owned, and/ or operated by a licensed hospital.

6."Pflmariljr" means 51 q{. sf Blare sf the seplliees fJfBv4EleEl.

do c. "Harassing" means the non-consensual and knowing approach within eight feet of another person or occupied

9694

HoYE v. CITY OF OAKLAND

motor vehicle for the purpose of passing a leaflet or handbill, to display a sign to, or engage in oral protest, education, or counseling with such other person in a public way or on a sidewalk area within one hundred (100) feet of the entrance of a reproductive health care facility.

e, d."Interfering" means to restrict a person's freedom of movement or access to or egress from a reproductive heath care facility providing reproductive health services.

t; e. "Counseling" means engaging in conversation with, displaying signs to, and/or distributing literature to individuals seeking access to, passage from, or services within the reproductive health care facility, in 1m eITeR te IiaFaBs, intimidate, ef perSllade that indiVIdual Het te assess SIleH repfeduetive healtli serv-iees.

g, f. "Eight feet" shall be measured from any extension of the body of the individual seeking access to, passage from, or services within the reproductive health care facility, and/or the exterior of any occupied motor vehicle, to any extension of the body of, or any sign or object held by another person.

Jr.. g. "Providing reproductive health services" shall include doctors, nurses, any employee of a reproductive health care facility and volunteers who, with the consent of the reproductive health care facility, assist in conducting patients of such facility safely into the facility.

Section 3. Prohibited harassment of individuals seeking access to health care facilities.

a. It shall be unlawful to use force, threat of force, or physical obstruction to intentionally injure, harass, intimidate, or interfere with or attempt to injure, harass, intimidate, or interfere with any person because that person will be, is, or has been, providing or obtaining reproductive health services.

HoYE v. CITY OF OAKLAND

9695

b. Within 100 feet of the entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly approach within eight feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of counseling, harassing, or interfering with such per-
son or vehicle occupant meSlmeetisa 'nith seekiag Fef!fsEitie
ti'fe health serviees, Sf fef the Jllllllsse sf mterferiag with that PefS8B'S Sf veBiele aSSliflant's ahtaining Sf prS'l-i8ing Fepf9 8lie&ve Itealtli seR'4ees.

c. Within 100 feet of the entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly approach within eight feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, for the purpose of injuring or intimidating such person or vehicle occupant in connection with seeking reproductive health services.

Section 4. Enforcement.

a. Any person who shall be convicted of a violation of subsection 3 above shall be deemed guilty of a misdemeanor and shall be punishable by imprisonment in the County jail for not more than one year, or by a fme not to exceed two thousand dollars ($2,000), or by both such fine and imprisonment.

b. Civil Remedies

i. Any person providing, seeking to provide, or seeking reproductive health services who is aggrieved by conduct prohibited by this chapter may commence a civil action in the Courts of the State of California.

ii. In any action commenced under subparagraph a. of this section, the court may award appropriate relief, including temporary, preliminary, or perma-

9696

HoYE v. CITY OF OAKLAND

nent injunctive relief and compensatory and exemplary damages and reasonable fees for attorneys and expert witnesses. With respect to damages, at any time before final judgment, plaintiff may elect to recover, in lieu of compensatory damages, an award of statutory damages in the amount of $5,000.00 per violation.

Section 5. Accomodation of Competing Rights.

In adopting this legislation, the Oakland City Council recognizes both the fundamental constitutional right to assemble peacefully and to demonstrate on matters of public concem, as well as the right to seek and obtain health care. This legislation promotes the full exercise of these rights and strikes an appropriate accommodation between them.

Nothing in this Ordinance shall be construed to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the United States Constitution, the California Constitution or any federal or California statute.

Section 6. Severability.

If any part, provision, or clause of this Ordinance or the application thereof to any person or circumstance is held to be invalid by a court of competent jurisdiction, all other provisions and clauses hereof, including the application of such provisions and clauses to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this chapter are severable.

Colorado Revised Statutes § 18-9-22

(I) The general assembly recognizes that access to health care facilities for the purpose of obtaining medical counseling and

HoYE v. CITY OF OAKLAND

9697

treatment is imperative for the citizens of this state; that the exercise of a person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner; and that preventing the willful obstruction of a person's access to medical counseling and treatment at a health care facility is a matter of statewide concern. The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another person's entry to or exit from a health care facility.

(2) A person commits a class 3 misdemeanor if such person knowingly obstructs, detains, hinders, impedes, or blocks another person's entry to or exit from a health care facility.

(3) No person shall knowingly approach another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet from any entrance door to a health care facility. Any person who violates this subsection (3) commits a class 3 misdemeanor.

(4) For the purposes of this section, 'health care facility' means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in this state.

(5) Nothing in this section shall be construed to prohibit a statutory or home rule city or county or city and county from adopting a law for the control of access to health care facilities that is no less restrictive than the provisions of this section.

(6) In addition to, and not in lieu of, the penalties set forth in this section, a person who violates the provisions of this sec-

9698

HoYE v. CITY OF OAKLAND

tion shall be subject to civil liability, as provided in section 13-21-106.7, C.R.S.