They used fake driver’s licenses. They made up a company so they could infiltrate conferences and meetings hosted by the plaintiff. They trespassed, committed fraud, violated federal wiretapping laws, recorded conversations without consent, and conducted other illegal activities. They secretly videotaped everything they saw for over a year and a half. Then they posted their surreptitious recordings on the internet. They were discovered, sued, and lost at trial. They had to pay the plaintiff a total of $2.4 million in statutory, compensatory, and punitive damages.

They are the Center for Medical Progress (CMP), and other anti-abortion groups. The focus of their illegal activities was the Planned Parenthood Foundation of America. They tried to prove that the national pro-choice organization was selling fetal tissue. They did not succeed.

After the trial court’s award, CMP appealed. The Ninth Circuit Court of Appeals on October 21 allowed most of the jury’s award to stand but found that the compensatory damages part of the District Court’s award was duplicative. In an opinion authored by Judge Ronald M. Gould, a three-judge panel left intact most of the damages awarded by the United States District Court for the Northern District of California. They did reverse $90,000 of the jury’s verdict which was based on the Federal Wiretap Act.

Gould’s opinion began with a history of the anti-abortion group's illegal activities. They began in 2013 when a “pro-life” activist named David Daleiden started what he called the Human Capital Project (HCP). The appellate opinion refers to him and his colleagues as “pro-life” because that is how they refer to themselves.

Among other activities, Daleiden and his “pro-life” colleagues operated a website under the name “Operation Rescue.” It provided names, photographs and personal information about medical personnel who performed abortions. He was barred from entering Planned Parenthood’s clinics and conferences.

That same year, he began to plan his “undercover operation to infiltrate Planned Parenthood.” He and his group created a “fake tissue procurement company” called Biomax. The non-existent company was incorporated in California, with the CEO and other officers using fake names. A footnote in the opinion explains that tissue procurement companies are legal under federal law. They “obtain human tissue samples” and provide them to medical researchers.

Biomax created a website, business cards and other promotional materials. The phony officers also obtained driver’s licenses with fake names and used them to enter clinics and when they attended “entry-level conferences” to establish their legitimacy. They subsequently registered as an exhibitor at the annual meeting of the National Abortion Federation, a national organization of which Planned Parenthood is a member. While there, they secretly recorded conversations and presentations. They also arranged for lunches with officers during which the surreptitious recordings continued.

They began releasing their recordings in July 2015, while claiming to be journalists. This claim would be used as the basis of their subsequent First Amendment claims on appeal. Several Planned Parenthood employees received threats after the recordings were released. Bodyguards and security personnel were hired to protect them and increase security. In January 2016, Planned Parenthood filed a civil action that sought compensatory, statutory and punitive damages. They claimed violation of the Civil Racketeer Influenced and Corrupt Organizations Act (RICO), as well as federal and state wiretapping laws, “civil conspiracy, breach of contracts, trespass and fraud.” Plaintiff also sought injunctions to prohibit similar illegal acts in the future. A six-week trial resulted in a jury finding for Planned Parenthood on all counts.

The jury divided the compensatory damage awards into separate categories—infiltration and security. Planned Parenthood received $366,873 for infiltration so they could increase and upgrade current practices to prevent repetition in the future. The security damages totaled $101,048 which would be used to protect the medical staff from violence and harassment. Injunctions were also imposed on all but one of the Biomax participants. The defendants appealed.

In the Ninth Circuit decision, Gould explained that the standard of review would be de novo, or a decision without deference to a previous court decision. On appeal, Daleiden and his “pro-life” co-defendants argued that the compensatory damages are precluded by the First Amendment and that Planned Parenthood failed to show violations of the Federal Wiretap Act.

Defendants argued that they were acting as journalists when they made and released recordings they claimed were in the public interest. As journalists, they sought protection under the First Amendment. But when considering this claim, the court emphasized that journalists are not immune from torts or crimes related to their newsgathering.

Gould wrote that Planned Parenthood’s damages were economic since they were used to pay for security and prevent similar anti-abortionists’ acts in the future. The opinion also stressed that “it does not impose a new burden on journalists or undercover investigations using lawful means.” Planned Parenthood’s compensatory damage award was thus affirmed because the so-called “pro-life” group did not use lawful means when making its secret recordings.

The Ninth Circuit panel, however, agreed with the defendants about the District Court’s improper application of laws regarding Federal Wiretap and Civil RICO laws. Under these laws, the recording party “must intend to use the recording to commit a criminal or tortious act.” Gould wrote that Planned Parenthood was “reusing the same criminal purpose –furthering the civil RICO scheme to destroy Planned Parenthood– as both the purpose of the civil RICO claim and the independent criminal or tortious purpose of” the Federal Wiretap Act. The court found their reasoning “circular.” Gould wrote “according to Planned Parenthood, the civil RICO conspiracy is furthered by the recordings, and the recordings themselves further the ongoing civil RICO conspiracy. Such reasoning is not permitted.”

Thus, damages for infiltration and security were affirmed, but those awarded under the Federal Wiretap Act were vacated. There is more to come in this lawsuit. Defendants are appealing other orders from the District Court, including those that awarded Planned Parenthood attorney fees and costs.