Appeals Court Panel Upholds Injunction Against Undercover Pro-Life Videos

Dave Daleiden
David Daleiden, head of the pro-life group The Center for Medical Progress, speaking at the Values Voters Summit at the Omni Shoreham Hotel in Washington, DC on Saturday, September 10, 2016. |

A three-judge panel of the Ninth Circuit Court of Appeals has upheld an injunction prohibiting the release of undercover videos from a California-based pro-life group.

In a 2-1 decision, the panel ruled Wednesday to maintain an injunction by a lower court barring the Center for Medical Progress from releasing tapes purporting to show the National Abortion Federation engaging in illegal activities.

In the majority opinion, the judges argued that the district court that made the injunction was correct since by recording the NAF members and meetings, the CMP activists had violated an agreement they signed at the event to not record or video tape the proceedings.

"The defendants claim that they were released from their contractual obligations because they obtained evidence of criminal wrongdoing. But the district court, having reviewed the recordings, concluded as a matter of fact that they had not," read the majority.

"Given the district court's finding, which is supported by substantial evidence, that the tapes contain no evidence of criminal activity, and its recognition of several states' ongoing 'formal efforts to secure the NAF recordings,' the preliminary injunction carefully balances the interests of NAF and law enforcement."

In an opinion that concurred in part and dissented in part, Circuit Judge Consuelo Maria Callahan argued that the injunction interfered with "legitimate investigations."

"The injunction against Defendants sharing information with law enforcement agencies should be vacated because the public policy in favor of allowing citizens to report matters to law enforcement agencies outweighs NAF's rights to enforce a contract," dissented Callahan.

"Moreover, the District Court's determination that the tapes contain no evidence of crimes, even if true, is of little moment as the duties of Attorneys General and other officers to protect the interests of the general public extend well beyond actual evidence of a crime."

In 2015, CMP garnered national headlines for releasing a series of videos purporting to show abortion providers like Planned Parenthood engaging in illegal activity, including the selling of aborted baby tissue and organs.

NAF was able to get an injunction against CMP in February 2016, preventing the release of the videos recorded at their meetings and of members talking with the undercover activists.

"Critical to my decision are that the defendants agreed to injunctive relief if they breached the agreements and that, after the release of defendants' first set of ... videos and related information in July 2015, there has been a documented, dramatic increase in the volume and extent of threats to and harassment of NAF and its members," argued the district judge.

"It should be said that the majority of the recordings lack much public interest, and despite the misleading contentions of defendants, there is little that is new in the remainder of the recordings."

The Ninth Circuit panel's ruling comes not long after CMP's Dave Daleiden and Sandra Merritt were charged in California with 15 felony counts of invasion of privacy for their undercover videos.

"Daleiden, along with co-conspirator Sandra Merritt, used manufactured identities and a fictitious bioresearch company to meet [abortion] providers and covertly record the private discussions they initiated," said a statement from California Attorney General Xavier Becerra released on Tuesday.

"The right to privacy is a cornerstone of California's constitution, and a right that is foundational in a free democratic society. ... We will not tolerate the criminal recording of confidential conversations."

Daleiden and Merritt had previously been charged with felonies in Texas for their undercover work, but a district court judge threw those out last year.

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