Brownfield v. Bonta

Background

Plaintiffs Kirk Booth, David Brownfield, and Wynette Sills challenged California Assembly Bill 1356, which amended California’s Freedom of Access to Clinic and Church Entrances Act. The amended law makes it a crime, near a reproductive-health-services facility, to intentionally record a patient, provider, or assistant without consent when the person acts with the specific intent to intimidate that individual and thereby causes intimidation. It also prohibits knowingly distributing recordings obtained in violation of that provision with the same intent. The law exempts people described in a specified California constitutional provision concerning news media.

The plaintiffs alleged that they regularly exercise their free-speech rights near reproductive-health facilities by displaying signs, distributing literature, and engaging in oral protest, education, and counseling. They also said they occasionally photograph or record people who challenge them in aggressive ways, to document unusual or threatening incidents. They denied intending to intimidate reproductive-health patients, providers, or assistants.

The plaintiffs had first sought a temporary restraining order. The court denied that request and directed the parties to provide additional briefing on whether the plaintiffs had Article III standing, meaning a sufficient injury that allows a federal court to hear the case.

Legal standard

For standing, a plaintiff must show an actual or imminent, concrete injury; a connection between that injury and the defendant’s challenged conduct; and a likelihood that a favorable court decision would remedy the injury. A person seeking an injunction or declaration must also show a sufficient likelihood of being harmed again in a similar way.

For a pre-enforcement challenge—one brought before the government has enforced the law—the court considered whether the plaintiffs showed a reasonable likelihood that the government would enforce the law against them, a concrete plan to engage in conduct covered by the law, and that the law applied to their intended conduct. If a plaintiff lacks standing, the federal court lacks subject-matter jurisdiction and must dismiss the action under Federal Rule of Civil Procedure 12(b)(1).

Court’s analysis

The court held that the plaintiffs did not satisfy any of the three standing factors. First, although the recording restriction was new, the underlying statute had prohibited intimidating or interfering conduct for 20 years. The plaintiffs alleged that they had recorded interactions outside reproductive-health centers for years but did not allege that they had ever been arrested, indicted, or prosecuted under the statute. The court found that they had not shown a reasonable likelihood of enforcement.

Second, the plaintiffs did not allege a concrete plan to violate the amended law. They disavowed recording or photographing patients or providers with the specific intent to intimidate them into foregoing or providing reproductive-health services. Their stated plan to record aggressive or unusual incidents did not identify conduct that violated the law.

Third, the court concluded that the law did not cover the conduct the plaintiffs described. The law did not prohibit recording or photographing generally; it prohibited recording or photographing with the specific intent to intimidate a person from participating in reproductive-health services and with resulting intimidation. The court therefore found that the plaintiffs had not alleged an injury sufficient to establish Article III standing.

Disposition

The court DISMISSED the action for lack of subject-matter jurisdiction. The Clerk was directed to close the file. The order did not decide the merits of the plaintiffs’ underlying First Amendment challenge.