- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Constitutional Law
- Date Filed: 07-28-2011
- Case #: 09-16753
- Judge(s)/Court Below: Circuit Judge Berzon for the Court; Circuit Judge Reinhardt and Senior District Judge Pollak
- Full Text Opinion
Hoye regularly “stands outside a reproductive health clinic” attempting to converse with patients to discourage abortions. He challenges a city ordinance preventing persons from approaching such patients in specified areas. The district court granted summary judgment for the City and Hoye appeals. Based on Supreme Court consideration of a similar law in Hill v. Colorado, the Court finds “that the Ordinance is a facially valid restriction on the time, place, and manner of speech,” because the distinctions between the laws at issue do not indicate that Oakland discriminates based on speech content. The Court further concludes that the City's interpretation of the Ordinance is to be considered separately from the Ordinance itself and affirms the district court's findings that the Ordinance is valid. Subsequently, the Court finds a discriminatory intent and effect in the City's interpretation and enforcement of the Ordinance based on testimony by the Police Captain, “that 'the City's enforcement policy is not to enforce the Ordinance against escorts” who facilitate access to abortion clinics. Unconstitutional enforcement of constitutional laws is not acceptable and the exception to content-based regulation does not apply to this case given that less restrictive means are available to limit anti-abortion speech, the Court remands this issue, instructing the district court to determine a form of relief that will result in a change of the enforcement policy to align it with the constitutional Ordinance. The Court also remands for further fact-finding Hoye's claims that “the Ordinance as applied to the actual circumstances... forclose[s] ample alternatives of communication” by preventing him from accessing patients to obtain the required consent. AFFIRMED IN PART REVERSED IN PART AND REMANDED.