Judge Tosses 5 Charges Against Anti-Abortion Activists for Undercover Videos

David Daleiden arrives at the Harris County Courthouse in Houston, Tex., on Feb. 4, 2016. (Eric Kayne/Getty Images)

A California judge dismissed five felony charges against two activists who secretly recorded Planned Parenthood executives talking about the practice of providing human body parts of aborted babies for research.

California Attorney General Xavier Becerra charged the activists in 2017 with 14 criminal counts of filming people without permission and one count of conspiracy to do so.

One of the charges was previously thrown out, and, on Dec. 6, Superior Court Judge Christopher Hite dismissed five of the remaining charges, according to a Dec. 6 release posted on Twitter by David Daleiden, one of the activists, along with a statement from his lawyer.

“Their case is falling apart as the facts about Planned Parenthood’s criminal organ trafficking are revealed in the courtroom,” the release said.

The activists with the nonprofit Center for Medical Progress (CMP) set up a fake biotech company and used it to register for a Planned Parenthood conference in 2015. They then engaged Planned Parenthood executives in discussions about the procurement of body parts from aborted babies and secretly recorded the conversations.

Daleiden, the CMP’s founder, said in a Dec. 6 video that the case is unprecedented, as the state’s videotaping law has never been used in this way before.

Daleiden’s lawyer, Peter Breen, said he was pleased with Hite tossing more of the charges.

“As to the remaining counts, we have strong defenses that we intend to vigorously pursue on appeal, until every last one of these specious felony charges are thrown out of court,” he said in a statement to The Daily Wire. “Mr. Daleiden followed the same commonly accepted practices, including videotaping in public places, as other undercover journalists.”

Trade Versus Reimbursement

Trade in fetal body parts is illegal.

Planned Parenthood claims that it has only reimbursed for costs related to providing the body parts for medical research with patient consent, which is legal.

But CMP alleges the abortion provider used “accounting gimmicks” and middlemen to mask the fact that its reimbursements exceed actual costs.

CMP provided evidence that the reimbursement amounts were at least partly based on whether the obtained body parts proved usable for research, which means, CMP said, the fees were “based on market value of usable fetal parts.”

In 2015, Planned Parenthood announced that it would no longer seek reimbursement for the body parts. The new policy wasn’t convincing for CMP, though, as it needed to be enforced with the many Planned Parenthood affiliates across the country.

“It is unlikely that any new ‘policy’ against fetal tissue remuneration is anything more than a temporary gentleman’s agreement for immediate PR purposes,” the CMP said on its website.

The charges against Daleiden were criticized as an “overreach” by The Los Angeles Times.

$2 Million Lawsuit

Planned Parenthood sued the activists involved in the undercover operation for crimes that include trespassing, invasion of privacy, and also fraud, since they used fake identification and a fake company to get into the conference.

The lawsuit also alleged a breach of the Racketeer Influenced and Corrupt Organizations Act (RICO), which was originally designed to fight organized crime (pdf). Planned Parenthood didn’t allege defamation.

Daleiden attorneys argued that the recordings took place in public places, such as restaurants and hotels, where people have no reasonable expectation of privacy.

On Nov. 15, Daleiden and others were found guilty and Planned Parenthood awarded $2 million in damages.

Breen blamed the judgment on the judge’s instructions to the jury.

“The judge should have told them that Mr. Daleiden’s filming was protected by the First Amendment. Instead, he told them the First Amendment is no defense, which is outrageous and not the law. When you have a series of unfair rulings, you can’t expect a fair verdict,” Breen told The Daily Wire.

Daleiden unsuccessfully tried to have District Judge William Orrick III removed from the case for bias, arguing that Orrick helped found a Planned Parenthood clinic in San Francisco. A media representative for Orrick didn’t immediately respond to a request for comment.

The ruling, if not overturned, would have a chilling effect on undercover journalism, Marc Ruskin, a former undercover FBI agent, said in a Dec. 6 Epoch Times op-ed.

“Local TV news stations will be sued by ‘So and So’s Used Cars’ after pretending to be potential buyers, to whom ‘So and So’ made gross misrepresentations,” he wrote. “Likewise, reporters pretending to seek a loan from unscrupulous lenders, and being offered usurious interest rates and draconian payment terms, will also be subject to civil litigation, no matter if the plaintiffs were acting unethically, or even violating laws and regulations.”