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Published: March 23, 2009

“Sentenced to jail for engaging in peaceful free speech”

Judge puts pro-life sidewalk counselor behind bars for counseling women outside Oakland abortion clinic

A judge has ordered a Baptist pastor from Berkeley to spend 30 days in jail and fined him $1,130 for violating Oakland’s restrictive ‘bubble law,’ crafted specifically to keep pro-life sidewalk counselors away from women entering abortion centers.

On Friday, March 20, Alameda Superior Court Judge Stuart Hing handed down the sentence against the Rev. Walter Hoye, executive elder at the Progressive Missionary Baptist Church of Berkeley. For years, Hoye has been a pro-life fixture outside Family Planning Specialists Medical Group in Oakland. In 2007, the Oakland City Council adopted the ‘bubble law’ under which Hoye was convicted at the behest of the abortion clinic’s staff, who claimed he and other pro-lifers had been harassing them. Hoye has challenged the constitutionality of the ordinance in federal court.

The March 20 sentencing hearing came a month after an initial hearing, described by one attorney as “total chaos, procedurally speaking,” during which Hing sentenced Hoye to 30 days community service, fined him $1130 and placed him on three years probation on condition he stay away from the abortion clinic. At the time, Hoye told the judge he could not accept the condition of probation, but the judge imposed the sentence anyway.

Hoye remained free until the March 20 re-hearing and returned to the abortion clinic in the interim, acknowledging that his pro-life witness could land him behind bars. “My Dear Friends,” he wrote in a Feb. 24 email, “Today I am still free. Tomorrow I may not be. It’s around 8:30 a.m. on Tuesday, February 24th, 2009 and the four of us are standing on the corner of Webster Street and 3rd Street in Oakland, California, near Jack London Square praying. I am praying with two African-American women (a 90-year-old and an 84-year-old) and a dear Catholic sister who is a very good friend of mine. We are asking God to use us to reach the men and women going into the abortion clinic, right across the street, with the love of Jesus Christ our Lord and Saviour… As we take our positions, I am fully aware that this may be my last opportunity to do all I can to save my people.”

At his re-sentencing hearing, Hoye again refused to accept a stay-away order as a condition of probation, prompting Judge Hing to order him jailed. Hing denied a defense motion to stay the sentence pending appeal and Hoye was taken into custody from the courtroom.

“It is absolutely incredible that in America an individual can be sentenced to jail for engaging in peaceful free speech activity on a public sidewalk,” said Allison Aranda, staff counsel for Life Legal Defense Foundation, which is representing Hoye. “Rev. Hoye is being singled out for particularly harsh punishment because he refused to agree not to offer help to women considering abortion. Where is the justice in that?”

Hoye could have been sentenced to as many as two years in jail and a $4000 fine following his Jan. 15 conviction on two counts of “unlawful approach” in violation of Oakland’s ‘bubble law.’ His attorneys said at the time they planned to appeal the verdict. Before the first sentencing hearing in February, attorneys for Life Legal Defense Foundation asked Hing to grant a motion for a new trial, saying that the judge erred in failing to give a “unanimity instruction” -- an instruction to the jury that they must agree unanimously on one incident for each count. Instead, jurors were presented with dozens of incidents from which to choose. That, argued Hoye’s lawyers, violated his rights to due process since the jury was not required to agree on which particular act committed by Hoye constituted a crime. Hing denied the motion.

Hoye had initially been charged with four counts of violating the ordinance – two counts of “unlawful approach” and two counts of using “force, threat of force or physical obstruction” against ‘escorts’ at the clinic. The charges stemmed from two separate incidents – one on April 29, 2008 and one on May 13, 2008. Hoye was arrested on May 13 after a clinic staff member called police. He was carrying a 40-inch sign that read, "Jesus Loves You & Your Baby. Let Us Help You," and attempting to hand out pro-life literature.

In an October 2007 interview with California Catholic Daily about the then-pending ‘bubble ordinance,’ Hoye said it was he and other sidewalk counselors who were being intimidated by ‘clinic escorts,’ not the other way around. “We are supposed to share the sidewalks, but I myself have been pushed and shoved,” Hoye said. “If they are on the left, I go to the right. If they want to walk ahead of me, I let them.”

Hoye said the escorts are so aggressive that the pro-lifers are the ones who fear for their safety. “I have witnessed them stalking. They will follow you to your car and write down your license plate number. One lady that I work with had to take refuge in a coffee shop because they kept following her, trying to find her car. She was afraid to go back to her car. They jumped in their car and followed her to her car, then blocked her, preventing her from pulling out.”

Hoye said the majority of the sidewalk counselors are women, many of them elderly. This makes no difference to the escorts. “They push and shove all the people I work with,” he said. “I saw them push an 89-year-old lady! They also pushed an 80-year-old woman I work with. The 89-year-old lady stands on the edge of the curb on the sidewalk and says softly, ‘Abortion stops a beating heart.’ That’s all she does. And do you know what they do? They stand on both sides of her, shouting ‘La, la, la, la, la!’ as loud as they can.”

© California Catholic Daily 2009. All Rights Reserved.