Aubin v. Bonta
| Decision Date | 29 March 2023 |
| Docket Number | 21-cv-07938 NC |
| Parties | TERESITA AUBIN, DAVID BROWNFIELD, and WYNETTE SILLS, Plaintiffs, v. ROB BONTA, in his official capacity as Attorney General of California, Defendant. |
| Court | U.S. District Court — Northern District of California |
ORDER GRANTING AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT; PERMANENTLY ENJOINING ENFORCEMENT OF THE “HARASSING” PROVISION OF CALIFORNIA PENAL CODE § 594.39 RE: ECF 33, 34
In this case, the First Amendment's constitutional guarantee of free speech collides against a new California criminal statute that protects access to vaccination sites but exempts labor dispute picketing. This case is one of three separate federal court lawsuits challenging enforcement of the California statute that creates vaccination site buffer zones. The statute, California Penal Code § 594.39 became effective October 8, 2021, upon the passage of Senate Bill 742. It makes it unlawful in California to knowingly approach within 30 feet of a person seeking to enter or exit a vaccination site and the person is within 100 feet of the entrance or exit, or any occupied motor vehicle seeking entry or exit to a vaccination site, “for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.” Cal Penal Code § 594.39(a). A violation of the statute is “punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.” Cal. Penal Code § 594.39(b). The statute, however, exempts “lawful picketing arising out of a labor dispute.” Cal. Penal Code § 594.39(d).
Plaintiffs Teresita Aubin, David Brownfield, and Wynette Sills argue in this case that the new statute violates their Free Speech and Due Process rights under the First and Fourteenth Amendments to the United States Constitution. Complaint, ECF 1. The First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” The Due Process Clause of the Fourteenth Amendment incorporates the First Amendment against the states. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976). Plaintiffs seek a declaration that California's vaccination site buffer statute is unconstitutional and a Court order permanently enjoining it. ECF 1 at p. 6.
This Court earlier granted Plaintiffs' motion for a temporary restraining order, finding that they demonstrated a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, and the balance of equities and public interest weighed in their favor. ECF 28, issued Dec. 23, 2021.
After the TRO order, the parties agreed to a combined briefing schedule for crossmotions for summary judgment or, in the alternative, on a preliminary injunction. The Court endorsed their procedural proposal. ECF 31. Now presented to the Court are the cross-motions for summary judgment. ECF 33, 34. In their motion, Plaintiffs demand a declaration stating that S.B. 742 is unconstitutional on its face and as applied, as well as a permanent injunction restraining Defendant Rob Bonta and any person acting in concert with him from enforcing California Penal Code § 594.39. ECF 33 at p. 2. Defendant argues that the statute is constitutional, and that judgment should be entered in the state's favor as a matter of law. ECF 34. In the alternative, Defendant asks the Court to enjoin only the “harassing” provision of the statute because it may be severed from the rest. ECF 34 at p. 26. All parties have expressly consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c)(1). ECF 9, 10.
While the COVID virus and the world's response to it have continuously evolved, the state of the record in this case has not changed much since the Court granted Plaintiffs' TRO and temporarily enjoined the statute in December 2021. As referenced in the opening paragraph of this order, there are two other pending federal cases challenging the vaccination site buffer statute. In Right to Life of Central California v. Bonta, Case No. 21-cv-1512 DAD, pending before District Court Judge Dale A. Drozd in the Eastern District of California, the Court granted a preliminary injunction for plaintiffs against the “harassing” provision of the statute. 2022 WL 2484239, at *4 (E.D. Cal. July 6, 2022). In Gupta v. Bonta, Case No. 21-cv-9045 EMC, pending before District Court Judge Edward M. Chen in this District, the plaintiffs moved for a preliminary injunction. Judge Chen stayed the Gupta case because Aubin and Right to Life were more advanced procedurally. Gupta, Case No. 21-cv-9045 EMC, ECF 56.
This order proceeds in four parts: (1) a summary of the challenged statute and Plaintiffs' speech; (2) assessment of the cross-motions for summary judgment; (3) consideration of severability of the statute; and (4) assessment of Plaintiffs' motion for a permanent injunction against enforcement of the statute. As elaborated below, the Court GRANTS and DENIES IN PART the Cross-Motions for Summary Judgment, finding that the statute violates the First Amendment and that Plaintiffs have abandoned their state law claim; SEVERS the statute; and GRANTS IN PART Plaintiffs' motion for a permanent injunction, enjoining only the “harassing” provision of the statute consistent with Judge Drozd's reasoning in the parallel case in the Eastern District of California.
Vaccines have been an essential public health tool in stemming the spread of the deadly COVID-19 virus and other diseases. Vaccines have also evoked public controversy, leading to some reported attempts of activists impeding public access to vaccination sites. ECF 34-1, Ex. 13.
Plaintiffs Teresita Aubin, David Brownfield, and Wynette Sills are activists who routinely engage in free speech activities including handing out pamphlets, holding signs, and engaging in sidewalk conversations near vaccination sites but do not wish to be arrested for doing so. ECF 33-1, 33-2, 33-2 (Decls. of Pls.).
In 2021 the California Legislature enacted Senate Bill 742 (S.B. 742), creating Cal. Penal Code § 594.39. The statute makes it unlawful to “knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.” Cal. Penal Code § 594.39(a). The statute further states that “[i]t is not a violation of this section to engage in lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.” Cal. Penal Code § 594.39(d). S.B. 742 also includes a severability clause if a section is found to be invalid. Cal. Penal Code § 594.39(e).
The statute sets forth several definitions. A “vaccination site” is a “physical location where vaccination services are provided, including, but not limited to, a hospital, physician's office, clinic, or any retail space or pop-up location made available for vaccination services.” Cal. Penal Code § 594.39(c)(6). “Harassing” means “knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.” Cal. Penal Code § 594.39(c)(1). “Interfering with” means “restricting a person's freedom of movement.” Cal. Penal Code § 594.39(c)(2). “Intimidating” means “making a true threat directed to a person or group of persons with the intent of placing that person or group of persons in fear of bodily harm or death.” Cal. Penal Code § 594.39(c)(3). “Obstructing” means “rendering ingress to or egress from a vaccination site, or rendering passage to or from a vaccination site, unreasonably difficult or hazardous.” Cal. Penal Code § 594.39(c)(4). “True threat” means “a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular person or group of persons regardless of whether the person actually intends to act on the threat.” Cal. Penal Code § 594.39(c)(5).
When drafting S.B. 742, California lawmakers made several statutory findings and declarations about the public health circumstances giving rise to the legislation. 2021 Cal. Legis. Serv. Ch. 737 (West).
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