City Council Report
915 I Street, 1st Floor
Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2022-01223 June 14, 2022
Title: An Ordinance Revising Chapter 12.96 of the Sacramento City Code Relating to Access to Health Care Facilities as an Emergency Measure to Take Effect Immediately Upon Adoption [Two-Thirds Vote Required]
Location: Citywide
Recommendation: Adopt an Ordinance: 1) revising Chapter 12.96 of the Sacramento City Code relating to Access to Health Care Facilities; and 2) declaring the ordinance to be an emergency measure to take effect immediately upon adoption.
Contact: Susana Alcala Wood, City Attorney, (916) 808-5346, [email protected] ,
Office of the City Attorney
Presenter: Susana Alcala Wood, City Attorney, (916) 808-5346, [email protected], Office of the City Attorney
Attachments:
1-Description/Analysis
2-Ordinance
Description/Analysis
Issue Detail: National discourse was recently upended by the disclosure of a draft majority opinion of the United States Supreme Court in the case of Dobbs v. Jackson Women’s Health.
This case implicates the highly controversial issue of reproductive health care services. Since the draft opinion was disclosed, emotional protests of thousands of people have erupted across the county, including in Sacramento.
If the draft majority opinion, or a substantially similar opinion, is ultimately adopted as the Opinion of the Court, reproductive health care services throughout the Nation may be significantly restricted. Indeed, numerous publications project that reproductive health care services will be restricted in as many as, or more than, half of the States.
In response, the governor of the State of California has proposed, and the legislature will consider funding uncompensated reproductive health care services; outreach and education, dissemination of information, and research regarding reproductive health care services; infrastructure security of health care facilities and other efforts to reduce barriers to reproductive health care services. Notably, proposed legislation would ease the burden of those traveling from out-of-state to California to obtain reproductive health care services that may be inaccessible in their states of residence.
At the same time, the Nation has also borne witness to harassment and intimidation of patients seeking these services at health care facilities, with the potential to escalate into threats or acts of violence. In a recent memorandum, the United States Department of Homeland Security, Office of Intelligence and Analysis, writes that threats to government, religious, and reproductive healthcare personnel and facilities and ideological opponents stemming from the Dobbs disclosure are likely to increase.
This ordinance aims to prevent the obstruction, harassment, or intimidation of persons entering and exiting health care facilities, while preserving the fundamental constitutional right of others to assemble peaceable and express opinions on matters of public concern.
Policy Considerations: The recommendations presented in this report are consistent with, and strike an appropriate accommodation between, the City Council’s established findings that access to health care services is a matter of critical importance to individuals and all citizens of the City of Sacramento; that efforts to deter or prevent individuals from seeking and obtaining health care services, by means including harassment, are contrary to the interests of individuals and the people of Sacramento; and that all people have a constitutional right to assemble peaceably and express opinions on matters of public concern.
Economic Impacts: Not applicable
Environmental Considerations: California Environmental Quality Act (CEQA): No environmental review is necessary because the recommendations in this report are of an administrative nature and are not considered to be a “project” as defined in the CEQA Guidelines, codified at Title 14, Section 15378 of the California Code of Regulations and Section 21065 of the California Public Resources Code.
Sustainability: None.
Commission/Committee Action: None.
Rationale for Recommendation: On March 22, 2022, the City Council unanimously directed the City Attorney to prepare an ordinance amending Chapter 12.96 of the Sacramento City Code relating to Access to Health Care Facilities in order to increase the protections for patients by prohibiting individuals from harassing, intimidating, or obstructing persons seeking access to such facilities. Additionally, the City Council provided unanimous direction that the ordinance bypass the Law & Legislation Committee and come before the City Council directly at the earliest opportunity.
Financial Considerations: Not applicable.
Local Business Enterprise (LBE): Not applicable
1 ORDINANCE NO. 2022-XXXX
Adopted by the Sacramento City Council
[Date Adopted]
AN ORDINANCE AMENDING SECTIONS 12.96.010, 12.96.020,
12.96.030, AND 12.96.040, AND DELETING SECTION 12.96.050 OF
SACRAMENTO CITY CODE, RELATING TO ACCESS TO HEALTH
CARE FACILITIES AND DECLARING THE ORDINANCE TO BE AN
EMERGENCY MEASURE TO TAKE EFFECT IMMEDIATELY UPON
ADOPTION
BE IT ENACTED BY THE COUNCIL OF THE CITY OF SACRAMENTO:
SECTION 1.
The City Council finds and determines as follows:
A. Every person in the City of Sacramento has a basic and fundamental right to privacy protected by the United States Constitution and explicitly guaranteed in California’s Constitution, Article 1, Section 1, including the right to seek and obtain all health care services permitted under the laws of this state. Access to these services is a matter of critical importance not only to the individual, but also to the health and welfare of all citizens of the city. Intentional efforts to harass an individual in order to deter or prevent the individual from exercising his or her right to seek and obtain health care services are contrary to the interests of the people of Sacramento, and can be injurious to the patient’s health, even if the patient is not physically barred from entry. Other persons may be sufficiently intimidated to put off necessary or timely medical treatment entirely. Protests at entrances to health care facilities in the City of Sacramento have often disrupted the operation of the facilities, as well as the ability of individuals to seek and obtain services within the facilities.
B. Every person in the City of Sacramento has the fundamental constitutional right to assemble peaceably and express opinions on matters of public concern, as well as the right to seek and obtain health care services. Peace officers often have difficulty determining when the exercise of the right to protest violates the competing right of those seeking access to health care facilities. The provisions of this ordinance promote the full exercise of these rights and strike an appropriate accommodation between them. The failure of the city council to take steps to accommodate these competing interests may jeopardize the exercise of both privacy and First Amendment rights.
C. The function of a buffer-zone restriction at a health care facility is to prohibit specific conduct that may obstruct, deter, delay, or prevent individuals from obtaining or providing necessary health care services because they are forced to endure harassing, obstructive, or intimidating behavior. These factors lead to increased patient stress that may affect the efficacy and complication rate of the medical care sought and can adversely affect patients’ physical and emotional health and well-being.
2 D. Continued incidents and altercations upon, and adjacent to, health care facilities in the City of Sacramento raise serious and alarming safety concerns regarding the constitutionally protected right to access health care services. Since April 2021, the Sacramento Police Department has responded to 23 calls for service regarding disturbances at one such facility.
These calls for service include reports of trespassing, including, but not limited to, individuals accosting patients as well as distributing literature and posting signage on private property; individuals preventing patients from entering the facility; individuals forcing literature upon patients attempting to access the facility; individuals throwing literature at patients attempting to access the facility; individuals harassing employees as they enter and exit the facility, including the use of homophobic slurs; individuals approaching employees to take unwanted photographs; individuals obstructing vehicle access to the facility’s parking lot; individuals obstructing pedestrian access to the facility; an individual jumping out at and accosting a patient attempting to access the facility; and an individual following an employee as she walked to her vehicle, causing her to retreat into the facility.
E. Prior to adoption of this ordinance, the Police Department attempted other measures to minimize the likelihood of incidents and altercations at health care facilities through intervention, mediation, or de-escalation tactics, and enforcement of criminal law. Since April 2021, the Police Department has responded to 23 calls for service regarding disturbances at one such facility, and continues to commit resources responding to regular disturbances.
F. Delaying further consideration of this ordinance until additional incidents and altercations at health care facilities occur or escalate will negatively impact law enforcement resources, is economically unsustainable, and inadequately protects the constitutional rights of individuals to access health care services.
G. This ordinance imposes narrowly-tailored, content-neutral regulations to protect the right to access health care services by restricting conduct that obstructs access to health care facilities and by creating an eight-foot buffer for a person accessing a facility when the person is within 100 feet of an entrance door to the facility.
H. This ordinance is not intended to interfere with the exercise of free speech rights of those protesting outside of health care facilities. Rather, this ordinance only restricts harassment and intimidation within 8 feet of a person who is within 100 feet of an entrance door to a health care facility, and obstruction of access to the facility. This ordinance protects both the rights of those seeking access to health care services, and those who gather outside of health care facilities in the city to express opinions on matters of public concern. Empirical evidence, including ordinances adopted by other jurisdictions, indicates that creating this eight- foot buffer minimizes, reduces, or eliminates harassing, intimidating, or obstructive conduct and at the same time allows any protected, expressive activity to occur in close enough proximity to reach the intended audience.
I. The modest scope of the ordinance is content-neutral and narrowly tailored to serve a significant governmental interest, and provides alternative avenues of communication. The reasonable time, place, and manner restrictions in this ordinance prevent the negative effects of harassing, intimidating, and obstructive conduct around health care facilities, without targeting the message or topic of speech. The restrictions are narrowly tailored to reduce or eliminate the harassing, intimidating or obstructive conduct accompanying any such speech and allow ample alternative means of communicating adjacent to health care facilities through 3 consensual conversations that are not harassing or intimidating or through non-consensual conversations where there is an eight-foot distance between speaker and target audience.
J. This ordinance is not intended to create any limited, designated, or general public fora.
Rather, it is intended to protect those who seek access to health care services from conduct that violates their rights.
SECTION 2.
Section 12.96.010 of the Sacramento City Code is hereby amended to read as follows:
Section 12.96.010 Definitions.
The following definitions apply in this chapter:
“Follow” means to physically pursue a person once that person has indicated verbally or non-verbally that they do not wish to be approached or engage in conversation.
“Gathering” means two or more persons.
“Harass” means to engage in a course of conduct directed at a specific person or persons that alarms, seriously distresses, torments, or terrorizes the person.
Harassment does not include, among other things, quiet, consensual conversation conducted from a stationary position. Harass includes, but is not limited to:
1. Approaching a person once that person has indicated they do not want to be approached or engage in conversation, except as necessary to enter or exit the health care facility;
2. Following a person if that conduct is intended or is likely to cause a reasonable person to fear bodily harm to oneself or to another, or damage to or loss of property;
3. Intentionally touching or causing physical contact with a person; and
4. Using violent or threatening gestures toward a person. “Health care facility” means any facility licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2 of the California Health and Safety Code, any health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the California Health and Safety Code, or any facility where health care services are regularly provided by persons licensed under Division 2 (commencing with Section 500) of the California Business and Professions Code, the Osteopathic Initiative Act, or Chiropractic Initiative Act.
“Health care services” include, but are not limited to all medical, surgical, counseling, referral, and informational services related to the human reproductive system.
“Intimidate” means making a true threat directed to a person or group of persons with the intent of placing that person or group of persons in fear of bodily harm or death.
4 “Obstruct” means rendering ingress to or egress from a health care facility, or rendering passage to or from a health care facility, unreasonably difficult or hazardous.
Obstruct includes, but is not limited to, intentionally blocking or interfering with the safe or free passage of a pedestrian or occupied vehicle by any means, such as (1) intentionally causing a pedestrian to take evasive action to avoid physical contact, or (2) placing signs, tables, or chairs on the sidewalk such that the flow of pedestrian traffic is restricted or obstructed.
“True threat” means a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular person or group of persons regardless of whether the person actually intends to act on the threat.
SECTION 3.
Section 12.96.020 of the Sacramento City Code is hereby amended to read as follows:
Section 12.96.020 Interference with access to health care facilities prohibited.
A. No person shall:
1. Within 100 feet of an entrance door to a health care facility, willfully and knowingly approach within 8 feet of any person seeking to enter or exit the health care facility, or any occupied motor vehicle seeking to enter or exit the parking lot of such a facility, without the consent of such a person or vehicle occupant, for the purpose of harassing or intimidating such person or vehicle occupant. Eight feet shall be measured from either any extension of the body of the person seeking to enter or exit the health care facility, or the exterior of any occupied motor vehicle seeking to enter or exit the parking lot, to any extension of the body of, or any sign or object held by another person;
2. Obstruct access to or departure from any entrance door to, or any driveway of, a health care facility; or
3. Fail to comply with a dispersal order as described in subsection C.
B. Subsection A applies during, one hour before, and one hour after, a health care facility's posted business hours.
C. A peace officer may order the immediate dispersal of a gathering that continues to violate subsection A after a verbal warning. A dispersal order issued pursuant to this subsection must include the following statements: (1) this gathering is interfering with access to a health care facility in violation of section 12.96.020.A of the Sacramento City Code; and (2) everyone is ordered to immediately disperse to an area at least 100 feet away from entrance doors to the facility, or face arrest and prosecution. If the dispersal order is written and posted at the location of the health care facility, the order shall remain in effect until one hour after the close of business of the health care facility. This section shall apply during, one hour before, and one hour after the posted business hours of a health care facility.
5 D. Nothing in this chapter precludes the enforcement of other state, federal, or municipal laws, including but not limited to those related to sidewalk and street obstructions, or prohibited noises.
SECTION 4.
Section 12.96.030 of the Sacramento City Code is hereby amended to read as follows:
12.96.030 Violations.
A. In addition to any other remedy allowed by law, any person who violates a provision of this chapter is subject to criminal sanctions, civil actions, and administrative penalties pursuant to chapter 1.28.
B. Violations of this chapter are hereby declared to be a public nuisance.
C. Any person who violates a provision of this chapter is liable for civil penalties of not less than $250 or more than $25,000 for each violation.
D. Any person who violates a provision of this chapter is guilty of a misdemeanor.
E. All remedies prescribed under this chapter are cumulative and the election of one or more remedies does not bar the city from the pursuit of any other remedy to enforce this chapter.
F. Any person who is aggrieved by an act prohibited by section 12.96.020.A may bring an action for damages, injunctive or declaratory relief, or all such remedies, as appropriate, in a court of competent jurisdiction against any person who has violated or conspired to violate its provisions. An aggrieved person includes any health care facility that is the site of a violation of this chapter. Any person who prevails in such an action shall be entitled to recover from the violator those damages, costs, attorney’s fees, and such other relief as determined by the court. In addition to other damages, the court may award the aggrieved person a civil penalty of up to $1,000 for each violation.
SECTION 5.
Section 12.96.040 of the Sacramento City Code is hereby amended to read as follows:
12.96.040 Severability.
If any provision of this ordinance or its application to any person or circumstance is held invalid or ineffective by any court of competent jurisdiction, or by reason of any preemptive legislation, that invalidity shall not affect the validity of the remaining provisions of this ordinance. The City Council declares that it would have passed this ordinance and each section, subsection, subdivision, sentence, clause and phrase, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases or words be declared invalid.
SECTION 6.
Section 12.96.050 of the Sacramento City Code is hereby deleted.
6 SECTION 7.
Emergency Declaration.
The city council declares this ordinance to be an emergency measure, to take effect immediately upon its adoption pursuant to Sacramento City Charter section 32(g)(2). The facts constituting the emergency are as follows:
On May 2, 2022, national discourse was upended by the disclosure of a draft majority opinion of the United States Supreme Court in the case of Dobbs v. Jackson Women’s Health.
This case implicates the highly controversial issue of reproductive health care services. Since the draft opinion was disclosed, emotional protests of thousands of people on both sides of the issue have erupted across the country, including in Sacramento.
If the draft majority opinion, or a substantially similar opinion, is ultimately adopted as the Opinion of the Court, reproductive health care services throughout the Nation may be significantly restricted. Indeed, since the May 2 disclosure, numerous publications project that reproductive health care services will be restricted in as many as, or more than, half of the States.
In response, the governor of the State of California has proposed, and the legislature will consider funding uncompensated reproductive health care services; outreach and education, dissemination of information, and research regarding reproductive health care services; scholarships and loan repayment for providers of reproductive health care services; infrastructure security of health care facilities and other efforts to reduce barriers to reproductive health care services. Notably, proposed legislation would ease the burden of those traveling from out-of-state to California to obtain reproductive health care services that may be inaccessible in their states of residence.
At the same time, the Nation has also borne witness to harassment and intimidation of patients seeking these services at health care facilities, with the potential to escalate into threats or acts of violence. In a report dated May 13, 2022, disclosed May 18, 2022, the United States Department of Homeland Security, Office of Intelligence and Analysis, writes that threats to government, religious, and reproductive healthcare personnel and facilities and ideological opponents stemming from the May 2 disclosure are likely to increase.
To protect the public health, safety, and welfare, the city must act with the utmost urgency to prevent the obstruction, harassment or intimidation of persons entering and exiting health care facilities, while preserving the fundamental constitutional right of others to assemble peaceably and express opinions on matters of public concern.