BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY
Bill Lockyer, Chairman
1993-94 Regular Session
AB 600 (Speier)
As amended August 23
Hearing date: August 24, 1993
Civil Code
ART
NEW TORT: COMMERCIAL BLOCKADE
HISTORY
Source: Author
Prior Legislation: AB 1097 (1992) - Chaptered
Support: Commission on the Status of Women; The American College of
š Obstetricians and Gynecologists; American Association
of University Women; Planned Parenthood Affiliates of
CA; California NOW
Opposition: American Civil Liberties Union; California Pro Life
š Council; National Right to Life Committee;
Traditional Values Coalition; Committee on Moral
Concerns; Christian Action Council
Assembly Floor vote: Ayes 46 - Noes 22 (Bill not as comprehensive)
KEY ISSUES
SHOULD THE TORT OF COMMERCIAL BLOCKADE BE CREATED?
SHOULD A PERSON(S) WHO INTENTIONALLY PREVENTS ANOTHER FROM ENTERING
šOR EXITING A HEALTH CARE FACILITY OR WHO DISRUPTS ITS NORMAL
šFUNCTIONING BE LIABLE IN A COURT OF LAW FOR DAMAGES, INCLUDING
šPUNITIVE DAMAGES, COST OF LITIGATION AND ATTORNEY'S FEES?
PURPOSE
Existing law makes it a misdemeanor to intentionally prevent an
šindividual from entering or exiting a health care facility, church,
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or school.
Existing law makes it a misdemeanor for any person who intentionally
šinterferes with any lawful business or occupation carried on by the
šowner or agent of a business establishment open to the public, by
šobstructing or intimidating those attempting to carry on business,
šor their customers and who refuses to leave when requested.
Existing law authorizes a court to award attorney's fees to a
šplaintiff who successfully brings a civil damage actions against a
šdefendant for conduct for which the defendant was previously
šconvicted of a felony.
This bill creates the tort of commercial blockade.
This bill provides that it is unlawful for a person, alone or in
šconcert with others, to intentionally prevent an individual from
šentering or exiting a health care facility (hcf) by physically
šdetaining the individual or physically obstructing the individual's
špassage or by disrupting the normal functioning of a health care
šfacility.
This bill provides that "aggrieved" persons, as defined, may seek
šcivil damages from those who committed the prohibited acts.
This bill further requires the court to take steps necessary to
šsafeguard the individual privacy and prevent harassment of a health
šcare patient, and employee of a health care facility or licensed
šhealth practitioner who is a party or witness in the proceeding. In
šaddition, health care patients and employees of health care
šfacilities may use pseudonyms to protect their privacy.
This bill also provides that the court may award appropriate relief
šand compensatory and punitive damages. In addition, the court may
šaward costs, attorney and expert fees.
This bill specifies that any constitutionally protected activity and
šlabor activities are not to be impaired by the provisions of this
šbill.
This bill provides the following definitions:
(1) aggrieved
* a person physically present at at health care facility when a
š commercial blockade occurs whose access obstructed or impeded;
* a person physically present at the (hcf) when a commercial
blockade occurs whose health care is disrupted;
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* a health care facility where a commercial blockade occurs, its
employees, or agents;
* the owner of a (hcf) where a commercial blockade occurs or of
the building or property upon which the health care facility
is located.
(2) "Disrupting the normal functioning of a health care facility"
š means intentionally rendering or attempting to render a
health care facility temporarily or permanently unavailable or
unusable by a licensed health practitioner, the facility's
staff, or patients. "Disrupting the normal functioning of a
health care facility" does not include acts of the owner of
the facility, an agent acting on behalf of the owner, or
officers or employees of a governmental entity acting to
protect the public health or safety.
(3) "Health care facility" - a facility that provides health care
š services directly to patients, including, but not limited to,
a hospital, clinic, licensed health practitioner's office,
health maintenance organization, diagnostic or treatment
center, neuropsychiatric or mental health facility, hospice,
or nursing home.
The purpose of this bill is to create the civil tort of commercial
šblockade and to establish the right of private persons and entities
šinjured by such conduct to receive appropriate civil relief.
COMMENT
1. Stated need for legislation
The intent of AB 600 is to complement the provisions of Penal
Code Section 602.11 by making the pursuit of appropriate civil
remedies more attractive.
Persons who intentionally blockade the entrances of the
facilities identified in Penal Code Section 602.11 frequently
commit the tort of trespass. However, the damages incurred by
the victim of the trespasser may be of insufficient value to
warrant a civil lawsuit. Most simply, after deduction of
attorney fees, the remaining award may be too small to warrant
prosecution.
This economic reality is the principal motivation for the
enactment of Code of Civil Procedure Section 1021.9, which
awards attorney fees to the "rural" victims of trespass. (See
Haworth v. Lira (1991) 232 Cal.App.3d 1362 for a thorough
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analysis of the legislative history of Section 1021.9.)
In Haworth, the award of attorney fees equaled the damage award.
Clearly, without the award of fees, the trespass action in
Haworth could not have been prosecuted economically.
2. First Amendment and Freedom of Speech
The First Amendment to the United States Constitution provides
that "Congress shall make no law ... abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble." The free speech provisions of the California
Constitution differ in language and the provisions have been
construed by our courts as "more protective, definitive and
inclusive of rights to expression of speech" than the federal
counterpart.
The provisions of this bill, although not directly stated, are
aimed primarily at conduct by protesters or demonstrators at
health care facilities who perform abortions which are not
always peaceful but frequently impede persons from entering and
exiting these facilities when needed. Furthermore,
demonstrators that obstruct access to a (hcf) would be guilty of
a misdemeanor under current law and thus would probably not be
exercising protected speech when committing a criminal offense.
3. Disruption normal functioning of health care facility
This bill makes a demonstrator or protester liable for
disrupting the normal functioning of a health care facility.
This bill defines "disrupting the normal functioning of health
care facility" as intentionally rendering or attempting to
render a health care facility temporarily or permanently
unavailable or unusable by a licensed health practitioner, the
facility's staff, or patients.
The author's office has explained that her intent is to stop,
curtail the following types of conduct: (1) excessive number of
phone calls which tie-up phone lines and prevent phone usage by
(hcf); (2) the use of stink bombs which require the evacuation
of both patients and personnel until bomb effects dissipate; (3)
short circuiting lights at (hcf) and (4) false calls of fire
requiring the presence of firefighters and subsequent
investigation. All of these activities disrupt the normal
functioning of the facilities and have an effect on patients and
personnel of the (hcf).
Although the language requires intent, one could argue that
there are many types of protest with the specific intent to
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disrupt the normal running of a business.
This language is of particular concern where protesters may call
for the boycotting of a health care facility with the precise
intent of disrupting the normal functioning of a business
operation. This form of commercial boycott has been used
successfully by African American communities to protest
retailers and other entities who have engaged in discriminatory
practices. In addition, labor groups occasionally set out to
disrupt the normal functioning of a business as a way of
protest. Although the bill makes an exception for any
constitutionally protected activity or activities protected by
the labor laws, it is does not specify the type of "unprotected"
intentional conduct it wants to prevent. Thus, this may cause
the filing of frivolous law suits and create a chilling effect
on First Amendment Rights.
Furthermore, the bill does not define "temporarily" thus
allowing for a number of different interpretations.
4. Opposition
This bill is opposed by different entities, following is a
summary of the oppositions' views on the bill:
(1) Equal protection requires that those who impede access in
order to save babies should not be treated differently than
those who might do so to save animals, or to block access
to government buildings or bridges, etc. (California Pro
Life Council, National Right to Life Committee, Traditional
Values Coalition)
(2) This bill would permit pro-choice persons to profit
personally from the nonviolent, conscience inspired
activities of an opposing protest group. The profit motive
will encourage large numbers of false accusations against
legal protesters. This is an unfair way to limit only one
protest voice in California. (Committee on Moral Concerns)
(3) This bill is unfair.
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