Hoye v. City of Oakland

Filing 208

ORDER RE TRAINING MATERIALS. Signed by Judge Charles R. Breyer on 12/16/2011. (crblc1, COURT STAFF) (Filed on 12/16/2011)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

10
11
12
13
14
15

No. CV 07-06411 CRB

WALTER B. HOYE, II,

ORDER RE TRAINING MATERIALS

Plaintiff,
v.
CITY OF OAKLAND,
Defendant.

/

16
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

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

United States District Court
For the Northern District of California

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
20

The Court further rejects Plaintiff’s invitation to revisit the definition of the word
“approach,” addressed in a single sentence of Plaintiff’s Motion. See dkt. 201 at i. If the

21
1

22
23
24
25

The Court rejects the additional language Defendant proposes in its Opposition, see dkt. 203
at 4-5, pertaining to the new policy at the FPS clinic. Such 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
not address individuals accompanying patients; and (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
in advance. The revised training materials the Court accepts are therefore only those materials provided
in dkt. 197.
2

26
27

See also dkt. 203 at 6 (arguing for exemption “to approach patients without consent within
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).”
3

28

Thus, a medical professional who willfully and knowingly approaches within eight feet of a
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

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
United States District Court
For the Northern District of California

1

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
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

G:\CRBALL\2007\6411\order re mpi 12-11.wpd

3