Injunction Junction: What’s Your Function?

Katie Short

It’s true what they say: victory IS sweet.

On March 3, almost a year to the day after a lower court had ruled that pro-life sidewalk counselors Ross Foti and Jeannette and Louie Garibaldi were bound by an injunction entered against Operation Rescue of California several years earlier, the California court of appeals reversed the judgment against them. Although the case returns to the trial court for further proceedings, the court’s decision marks the end of the line for one of Planned Parenthood’s and their attorneys’ most cherished ambitions: to establish as a matter of law that an injunction entered against any pro-lifer could be used against all pro-lifers. In no uncertain terms, the court rejected all of Planned Parenthood’s arguments that an injunction barring some pro-life protesters from the public sidewalk in front of its San Mateo clinic could apply to “all [pro-life] persons with actual notice.”

You may be asking yourself, “Wasn’t this point made several years ago, in People v. Conrad (1997) 55 Cal.App.4th 896?1 Didn’t that decision hold that injunctions only bind the enjoined parties and those acting with or for them?”(Admit it; that’s what you were thinking.) We certainly thought so, which is why we were surprised when Planned Parenthood Golden Gate trotted this issue out again. PPGG claimed that because a decade-old injunction against ORC at its San Mateo clinic actually said it applies to “all persons with actual notice,” then in fact it did apply, no matter what Conrad said. In other words, because their injunction had the magic words (which Planned Parenthood itself had inserted in the injunction when drafting it for the court to sign), these words carried more weight than what any higher court said about the limits of injunctions.

In retrospect, we (i.e., Terry Thompson representing the Garibaldis, and Mike Millen and I representing Mr. Foti) probably shouldn’t have been surprised, given Planned Parenthood’s record. In briefs and arguments before the state supreme court in Planned Parenthood Shasta-Diablo v. Williams, Planned Parenthood assured the court that an injunction keeping pro-life protesters across a sixty-footwide street from its Vallejo clinic was not content- or viewpoint-based, because, of course, it only applied to the defendants, as they were the only ones who had been found to have engaged in wrongful conduct. After the Court affirmed the injunction, Planned Parenthood, in consultation with its attorneys, immediately instituted a policy of enforcing the injunction against all protesters. When a group of protesters unaffiliated with the defendants picketed in front of the clinic, they were arrested, tried, and convicted. These were the individuals whose convictions were reversed in the Conrad case, which held that a nonparty can be punished for violating an injunction only if “the nonparty violates its terms with or for those who are restrained.” (1)

After the Conrad case was decided, there were indications that Planned Parenthood was not going to accept it, or that at least it was hoping to keep people ignorant of it. Planned Parenthood employees instigated the arrest of Mr. Foti in Daly City, for supposedly violating an injunction against other parties there. When he began picketing at the San Mateo clinic, they tried unsuccessfully to have the injunction enforced against him by the police.

When the police balked (unlike the Daly City police, the San Mateo police listened to Mr. Foti when he explained that the injunction didn’t apply to him), Planned Parenthood administrators and attorneys then met with the District Attorney, who pointed out the obvious, i.e., that under Conrad, their “all persons with notice” injunction had no effect. Incredibly, these Planned Parenthood employees later testified in depositions that the District Attorney hadn’t told them why he wouldn’t enforce the injunction against Mr. Foti. It also came out in depositions that lower level employees were ignorant of the decision and its implications for their “all persons with notice” policy. Rather, Planned Parenthood instructed its employees not to make citizens arrests, but to call the police and report “violations” of injunctions, thus ensuring that the police, not Planned Parenthood, would be liable for any false arrests.

With that background, we should not have been as surprised as we were when PPGG began asserting that the injunction applied to all persons with notice, including Mr. Foti and the Garibaldis, even when this assertion came after more than two years of litigating to impose a separate injunction on them. But we were stunned when, on two separate occasions, trial court judges sided with Planned Parenthood, in spite of Conrad and other applicable law.

It was interesting to watch the evolution of Planned Parenthood’s argument. Initially, Planned Parenthood argued that “all persons with notice” provisions had been frequently upheld by courts in a variety of situations, and that this provision served certain neutral policy purposes, such as “preventing a multiplicity of actions.” In making these arguments, Planned Parenthood misconstrued both case law and statutory law. As the case progressed, and we showed how flawed and misleading their legal analysis was, Planned Parenthood focused more on the supposedly “special circumstances” presented in the context of abortion protests.

By the time of the oral argument before the court of appeal, Planned Parenthood’s entire thrust was that, because of the “compelling” interests at stake in the abortion context, the court ought to make an exception to all other case law and due process principles, and create a different rule for injunctions restricting the speech of pro-life picketers. Where abortion protests are at issue, rather than proving that any pro-lifers had engaged in wrongful conduct, a clinic should be able to ask a judge for an order to restrict the speech of all pro-lifers—in effect a viewpoint-based law against pro-lifers. This totally unconstitutional procedure seemed perfectly logical to Planned Parenthood, because, in its worldview, all pro-life speech activity outside clinics is harmful, and thus there is no need for individualized proof of wrongdoing. Requiring individual trials of protesters is simply a waste of Planned Parenthood’s and the court’s time and resources.

Planned Parenthood also made the illogical argument that, without the “all persons with notice” provision, enjoined parties could evade the injunction by substituting in other protesters. However, the injunction also binds those “acting in concert” with enjoined parties. If other protesters are in fact being substituted in, then they are bound under the “acting in concert” provision; there is no need to expand the injunction to include “all persons with notice.” What Planned Parenthood really meant was that undoubtedly all these pro-lifers are acting in concert with one another, but they will lie about it; since we can’t catch them at it, the court should acknowledge that problem by making the injunction cover all pro-lifers.

The Court of Appeal decidedly rejected all of Planned Parenthood’s contentions. After re-iterating the general principles concerning the application of injunctions only to named parties and their agents, the court addressed Planned Parenthood’s arguments one by one. Concerning their argument that the actual notice provision should be approved as a time-saving device, the Court held, “Virtually every prong of this argument is erroneous.” It was “very puzzled” about Planned Parenthood’s reliance on one case involving an injunction against gang members. As to several other cases cited by Planned Parenthood, the court said, “We will not discuss these cases individually, since PPGG chose not to. Suffice to say, that none of them affirmed a provision which extended the scope of a permanent injunction to any person with notice of it.” Piece by piece, prong by prong, the court dissected Planned Parenthood’s case and exposed its errors of law and logic.

Thus was the “all persons with actual notice” provision relegated to the ash heap of history, not just in this individual case, but as binding precedent in other such situations. Mr. Foti and the Garibaldis will now return to the trial court where Planned Parenthood will try to prove that they are currently acting in concert with ORC in their protest activities at the San Mateo clinic. Planned Parenthood’s case relies on a handful of decade-old, brief contacts Mr. Foti had with ORC or with individuals Planned Parenthood claims are “members” of ORC. (Planned Parenthood refers to anyone whoever attended any Operation Rescue event as a “known Operation Rescue member.”)

The case against the Garibaldis rests on the fact that they picket with Mr. Foti, and the three “even socialize together.” For that reason, Planned Parenthood argues, they are all acting in concert with ORC, because Mr. Foti went to a couple of rallies and a rescue over ten years ago. Planned Parenthood argues this absurd position as if only an utter fool could fail to see “CONSPIRACY” written all over these relationships.

In the meantime, Mr. Foti and the Garibaldis are once again free to stand on the sidewalk in front of Planned Parenthood with their life-affirming message for women contemplating abortion. That’s the sweetest victory of all.


1. Conrad itself was built on well-established principles concerning injunctions. It simply affirmed that the same due process principles that protected the rights of nonparties in other situations also protected pro-lifers from having their free speech rights taken away.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.