Ridiculous: California files 15 felony charges against producers of undercover Planned Parenthood videos

This investigation was launched by pro-abortion left-wing hack Kamala Harris, then attorney general of California and longtime recipient of Planned Parenthood lucre, who parlayed her persecution of David Daleiden and the Center for Medical Progress — replete with a police raid of Daleiden’s home in search of undercover footage — into a U.S. Senate seat last November. Not satisfied with merely persecuting Daleiden under existing law, Harris even took the extra step of collaborating with Planned Parenthood to draft new legislation that would make secretly recording medical-care providers a distinct crime. The Daleiden investigation that she began has now been picked up by the new attorney general, Xavier Becerra (himself a Democratic former member of Congress), who decided yesterday to drop a cool 15 felony counts on Daleiden and his partner, Sandra Merritt, for exposing Planned Parenthood’s possible sales of fetal body parts because they recorded the conversations without the subjects’ consent. Unlike most of the 50 states, California requires both parties to a conversation to agree in order for it to be recorded lawfully.

Fifteen felony counts. How many felonies were the Manson family charged with?

The charges against David Daleiden and Sandra Merritt of the Center for Medical Progress come eight months after similar charges were dropped in Texas.

State Attorney General Xavier Becerra, a longtime Congressional Democrat who took over the investigation in January, said in a statement that the state “will not tolerate the criminal recording of conversations.”

Prosecutors say Daleiden, of Davis, California, and Merritt, of San Jose, filmed 14 people without permission between October 2013 and July 2015 in Los Angeles, San Francisco and El Dorado counties. One felony count was filed for each person. The 15th was for criminal conspiracy to invade privacy.

Jacob Sullum has a nice run-through of California law on wiretapping. It’s true, you can’t record a confidential communication without the other party’s consent — but is a conversation “confidential” if it’s happening at a restaurant, or some public event? California Penal Code 632(c) specifically “excludes a communication made in a public gathering … or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Many of the Daleiden recordings were made in exactly those circumstances; the most famous, a chat with PP bigwig Deborah Nucatola, was recorded in a restaurant. In fact, none other than Cecile Richards, president of Planned Parenthood, acknowledged in congressional testimony about the Daleiden tapes that she had admonished Nucatola for discussing PP’s medical practices “in a nonconfidential area.” (Daleiden posted the video of Richards’s testimony this morning.) But wait, says Sullum, it may not be that simple. Some experts on California wiretapping law argue that you can have a reasonable expectation of privacy in your communications even in a public place. It depends on the circumstances. For instance, if you’re at a “private” event with lots of media, like, say, a celebrity Oscars party, it may be that the definition of “confidential” there differs from what it would be in a quiet restaurant.

Ben Shapiro, however, argues that the law is actually quite clear in this regard. Just because you’re talking to strangers privately doesn’t mean that the communication is “confidential.”

[T]he Ninth Circuit found in 2002 that tapes made in private areas between a company and undercover journalists who are “strangers” to that company are not illegal – they ruled that a very similar undercover investigation by ABC News against Medical Laboratory Management Consultants for Primetime Live was just fine: “Devaraj’s willingness to invite these strangers into the administrative offices for a meeting and then on a tour of the premises indicates that Devaraj did not have an objectively reasonable expectation of solitude or seclusion in the parts of Medical Lab that he showed the ABC representatives.”

Furthermore, the court found no reasonable expectation of privacy regarding the conversations between the ABC undercover reporters and medical technicians: “Devaraj did not reveal any information about his personal life or affairs, but only generally discussed Medical Lab’s business operations, the pap smear testing industry, and Gordon’s supposed plans to open her own laboratory.” In fact, the Ninth Circuit explicitly distinguished Arizona law from California law and then said that even under California law, there would be no reasonable expectation of privacy: “The expectation of limited privacy in a communication – namely the expectation that a communication shared with, or possibly overheard by, a limited group of persons will nonetheless remain relatively private and secluded from the public at large – is reasonable only to the extent that the communication conveys information private and personal to the declarant.” This is precisely the same logic that would apply here.

That’s a narrow definition of privacy, seemingly excluding any conversations that have to do with non-personal matters, like, oh, say, how a business carries out certain medical practices. If Shapiro’s right, Daleiden might well beat the rap. On the other hand, this is a Ninth Circuit precedent, famously one of the country’s most liberal courts. What reason is there to think they wouldn’t find a wrinkle to make the felony charges against Daleiden stick just as Harris and Becerra did?

The media, which normally thrills to undercover investigations (democracy dies in darkness, after all!), is curiously silent this morning about the state bringing down the hammer on two citizen-journalists. How come?

The Romney video was recorded at a fundraiser held at the Boca Raton home of a private citizen, in an address to guests who had paid to be there, by someone who wasn’t even a party to a “conversation.” If that incident had happened in California, would Romney have had a claim against the mole who recorded it on grounds that it was a private setting in an address designed to be off the record? Of course not, or at least not in the court of media public opinion. The privacy interest involved would have been deemed insignificant vis-a-vis the news value in what Romney said. In fact, California law specifically includes an exception to its wiretapping laws for especially newsy recordings — specifically, recordings aimed at “obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person.” Planned Parenthood’s fetal-tissue business may not qualify, but the principle behind that exception is sound: When a recording is of great public interest, capturing evidence that may involve significant wrongdoing, the person who recorded it is off the hook. Becerra could have exercised his prosecutorial discretion and refused to charge Daleiden and Merritt for that reason, arguing that although they don’t technically qualify for the statutory exception, their interest in exposing possible malfeasance in organ trafficking was virtuous. But that’s the whole problem. In California, making Planned Parenthood look bad isn’t virtuous, ever. Result: 15 felony counts.

Here’s the latest from Daleiden, released just this morning in a show of defiance. Sample quote: “Dr. Taylor explains to the investigators, ‘In Arizona, if the fetus comes out with any signs of life, we’re supposed to transport it. To the hospital.’ When one investigator then asks, ‘Is there any standard procedure for verifying signs of of life?’ Dr. Taylor replies, ‘Well, the thing is, I mean the key is, you need to pay attention to who’s in the room, right?'” No public interest in having that exposed, right?

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