Anti-abortion activists won’t face charges over chalk writing near Newport doctor’s home

No charges will be brought against the people who chalked messages on the streets and sidewalks during an anti-abortion protest.
(Gabrielle Durnian, Daily Pilot)

Law-enforcement officials said Wednesday that they will not file charges against a group of protesters who wrote anti-abortion messages in chalk outside a Newport Beach doctor’s home.

Police had said the demonstrators technically may have vandalized public property by using the chalk on city streets and sidewalks when they rallied in the Dover Shores neighborhood on June 29 and July 1.

On those two days, they wrote “Abortion is murder,” “Your neighbor is a monster” and other messages near the home of Dr. Richard Agnew, a Hoag Hospital-affiliated obstetrician.

But when detectives sent the case to the Orange County District Attorney’s Office about two weeks ago, there was no request to file vandalism charges or any related evidence included, said D.A. spokeswoman Farrah Emami.

Instead, the case focused on battery charges related to a scuffle that broke out among protesters and residents who objected to their picketing and chalking.

Because of a lack of evidence, the District Attorney’s Office decided not to prosecute anyone involved, Emami said Wednesday.

Neighbors had been pushing for vandalism charges against the protesters, who are part of a Riverside group, Survivors of the Abortion Holocaust.

“These people are threatening,” said Katherine Agnew, Richard’s wife. “I’m afraid somebody is going to get killed if we don’t address the matter.”

Agnew’s family has said the protests seem surreal because abortions are only a small part of his practice.

“These are fetuses that have severe problems,” son Richard Agnew II said after the demonstration in July, adding that the mothers are patients his father formed a relationship with through their pregnancy.

“They’re crying, and they’re sad about it,” he said.

Survivors of the Abortion Holocaust founder Jeff White took the decision not to file charges as vindication.

“I think it’s shortsighted on the part of the neighborhood to waste the police department’s time even trying to enforce anti-First Amendment-type ordinances,” he said.

His group likely would have fought officials had they pursued a vandalism case, he said.

“Do they really want to get into a $50,000 to $100,000 lawsuit?” White said. “Because we would sue over the sidewalk chalk.”

But White’s group would have a tough case to make, according to Erwin Chemerinsky, dean of the UCI Irvine School of Law, who said sidewalk chalk likely doesn’t fall under free-speech protections.

“There’s no right to deface public property,” Chemerinsky said. “There’s no right to spray-paint a public building or viaduct. There’s no right to spray-paint a sidewalk.”

Though chalk is less permanent than spray paint, it still causes damage by requiring someone to clean it up, he said.

“Even though a public sidewalk is a public forum, there can be time, place and manner restrictions on speech,” Chemerinsky said. “I think what the court would say is there are many ways of expressing yourself that don’t deface public property.”

Newport Beach has already tried once to push protesters away from homes.

After Survivors of the Abortion Holocaust first demonstrated at Agnew’s home in 2013, the City Council passed an ordinance barring picketing within 300 feet of private residences.

That decision, however, did not keep protesters from returning to the neighborhood and simply staying far enough away from the home to abide by the law.

The city could enact a more stringent ordinance, according to Chemerinsky. The Supreme Court has said laws can ban protesters from targeting specific homes, he said.

“That’s different than picketing a clinic or a health-care facility,” he said.