Tuesday, January 28, 2003
C.A. Upholds CHP’s Right to Stop Roadside Abortion Protests
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Highway Patrol can bar a Sacramento anti-abortion group from holding protests on freeway overpasses during rush hour, the Third District Court of Appeal ruled yesterday.
But a divided panel, in a ruling the dissenting justice called “inconsistent with the law and with common sense,” stopped short of allowing a blanket ban on demonstrations on overpasses, saying the issue had to be decided on a case-by-case basis.
The panel was unanimous, however, in upholding Sacramento Superior Court Judge William J. Gallagher’s decision to deny an injunction against the CHP, which was sought by the Sanctity of Human Life Network.
The group’s troubles with the CHP began on Jan. 22, 1997, when members gathered on four overpasses to observe the 24th anniversary of Roe v. Wade by holding up protest signs during morning drive time. Officers confiscated signs at one location and successfully requested that demonstrators leave the others.
The following year, on the same date, demonstrators held up signs during morning rush hour until the CHP told them to leave. A planned afternoon demonstration at one overpass was headed off after the Sacramento Police Department, with CHP officers also present, told network members they had to leave, about 30 minutes before the activities were supposed to begin.
At trial, CHP officers testified that they acted under Vehicle Code Secs. 21465 and 21467. Sec. 21465 makes it unlawful to “place, maintain, or display upon, or in view of, any highway any unofficial sign, signal, device, or marking, or any sign, signal, device, or marking which purports to be or is an imitation of, or resembles, an official traffic control device or which attempts to direct the movement of traffic or which hides from view any official traffic control device.” Sec. 21467 specifically authorizes the CHP to remove any sign that is illegal under Sec. 21465.
Justice George Nicholson, joined by Justice Vance Raye, agreed with the plaintiffs that the CHP had misinterpreted those statutes and that they do not apply to signs that have nothing to do with traffic issues.
The agency “does not have a clear or articulable definition of the scope of section 21465,” Nicholson wrote. He pointed to the testimony of the CHP’s expert, an officer who teaches the Vehicle Code at the agency’s academy, when asked why bus advertising was considered legal but protest signs illegal, answered “You got me.”
Given the context of the law, the justice explained, it should be read as applying to unofficial signs relating to traffic. Thus, he said, if a landowner posted a speed limit sign within view of the highway, it would violate the statute, but if he posted a sign that said “no trespassing” it would not.
On remand, he said, the plaintiffs are entitled to a declaration that Secs. 21465 and 21467 do not prohibit them from demonstrating. But they are not entitled to an injunction, he reasoned, because their conduct may be prohibited under another statute.
Constitution Not Violated
He cited Sec. 2410, which gives the CHP general authority to “direct traffic according to law.” The CHP’s exercise of that authority, Nicholson added, does not violate the First Amendment so long as it is content-neutral, necessary to protect the public, and allows alternative means of communication.
Officers, the justice noted, testified that they did not interfere with the demonstrations until it became clear that traffic flow was being impeded. There was no suggestion that the CHP acted because it disagreed with the protestors’ viewpoint, nor did the agency interfere with the group’s demonstrations when they were held at other times in other places, Nicholson said.
Presiding Justice Arthur Scotland, dissenting, warned that “the majority takes a wrong turn” by adopting the case-by-case approach. Demonstrations on overpasses are inherently dangerous, he argued, because they divert motorists’ attention from their driving.
“I†shudder to think of the consequences that will prevail,” he wrote. “For example, white supremacist skinheads may be able to use the 12th Avenue overpass on Highway 99 to protest against the Dr. Martin Luther King, Jr. holiday....Why not dueling overpasses—Bomb Saddam advocates on the Sunrise Boulevard overpass and No War in Iraq protestors on the Mather Field Road overpass on Highway 50? The possibilities are endless. The danger to motorists is clear.”
Raye, while concurring with Nicholson, authored his own opinion responding to Scotland. “I disagree with his cataclysmic vision of the havoc that will be wreaked when citizens are permitted to exercise their First Amendment rights on public property within sight of a freeway,” the jurist wrote, reasoning that not all freeways are equally congested.
The case is Sanctity of Human Life Network, Inc. v. California Highway Patrol, 03 S.O.S. 461.
Copyright 2003, Metropolitan News Company