Read Life Legal articles about Walter’s case
The Criminal Case: Rev. Hoye was arrested, and convicted of violating an ordinance that requires an individual within 100 feet of an abortion clinic entrance to stay 8 feet away from others entering without first getting consent to approach. Title 8 Health and Safety Chapter 8.52: Access to Reproductive Health Care Facilities
Rev. Hoye’s activity consisted of standing on the sidewalk outside of an abortion clinic, with a sign reading “Jesus Loves You and Your Baby. Let Us Help,” and offering literature to women seeking to enter the clinic.
Despite the ordinance’s failure to define terms such as “approach” Rev. Hoye was convicted of two counts of approaching and served 18-days in jail.
On appeal, his conviction was soundly overturned for a variety of prejudicial errors at the trial. The People of the State of California v. Walter Hoye, 188 Cal. App. 4th Supp. 1 (August 25, 2010). For example, the trial judge had refused to give a unanimity instruction, so that there was no indication of whether the jurors all agreed as to which actions violated the ordinance. The judge further refused to define “approach” in its legal context, despite a request by the jury that he do so. The jury thus lacked a correct understanding of conduct the ordinance did not forbid.
The Civil Case: Prior to his arrest – indeed, two days after the Ordinance was passed Rev. Hoye filed a federal lawsuit challenging the constitutionality of the bubble zone law. Initially Rev. Hoye won, the court agreeing that the ordinance contained a viewpoint-discriminatory provision. Subsequent to this decision, the City amended its ordinance and Rev. Hoye challenged again, raising several new grounds, including the fact that the City exempted clinic escorts from the reach of the Ordinance. The district court upheld the ordinance (Hoye v. City of Oakland, 642 F. Supp. 2d 1029 (2009), but last July the Ninth Circuit reversed. 653 F.3d 835 (9th Cir. 2011).
The two most significant holdings were:
1) The City’s enforcement policy was unconstitutionally content-based, in that it distinguished between speech that “facilitates access” to abortion (i.e., the escorts’ speech) and speech that discourages abortion.
2) The escorts’ conduct of blocking Pastor Hoye from communicating his message from eight feet away could be considered a “special problem” rendering the Ordinance unconstitutional as applied. The Court left that matter for further consideration on a more complete record and so the civil suit continues in the district court.
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