247 F.3d 279 (D.C. Cir. 2001), 00-5035, United States v. Mahoney

Docket Nº:00-5035 Consolidated with Nos. 00-5036, 00-5055, 00-5090 & 00-5148
Citation:247 F.3d 279
Party Name:United States of America, Appellee v. Patrick J. Mahoney, et al., Appellants
Case Date:May 01, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 279

247 F.3d 279 (D.C. Cir. 2001)

United States of America, Appellee


Patrick J. Mahoney, et al., Appellants

No. 00-5035 Consolidated with Nos. 00-5036, 00-5055, 00-5090 & 00-5148

United States Court of Appeals, District of Columbia Circuit

May 1, 2001

Argued February 9, 2001

Page 280

[Copyrighted Material Omitted]

Page 281

Appeals from the United States District Court for the District of Columbia (98cv01446)

Brian Ricardo Chavez-Ochoa argued the cause for appellants. With him on the briefs were Frederick Herbert Nelson, Richard P. Caro, and James Matthew Henderson, Sr.

James Matthew Henderson, Sr. was on the brief for appellant Patrick J. Mahoney. Mark N. Troobnick entered an appearance.

Kevin K. Russell, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Bill Lann Lee, Assistant Attorney General, and Jessica D. Silver, Attorney.

Before: Henderson and Randolph, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Separate concurring statement filed by Circuit Judge Henderson.

Randolph, Circuit Judge:

January 22, 1998, marked the twenty-fifth anniversary of Roe v. Wade, 410 U.S. 113 (1973). Individuals from around the country arrived in Washington to participate in the annual "March for Life." Other demonstrations were also planned, including a protest at the Capitol Women's Center, an abortion clinic in Washington. Among those who took part in that protest were the seven individuals who bring this appeal. In a civil action by the United States, the district court found these defendants guilty of violating the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. The court issued an injunction forbidding the defendants from "[c]oming within a twenty-foot-radius of any reproductive health facility located within" the Capital Beltway. They contest their liability and the scope of the injunction.


On January 23, 1998, one day before the demonstration at the abortion clinic, the defendants attended a rally at a downtown hotel. Defendants Mahoney and Benham announced the demonstration planned for the Capitol Women's Center. Mahoney later alerted the police. The next morning a group led by defendants Benham and Gabriel approached the clinic. The clinic had three entrances, two in the front (the north and south walkways) and another in a back alley. By the time the defendants arrived, volunteers had already created a human chain in front of the clinic to assist staff, patients and other authorized persons who sought to enter the clinic. Four of the defendants (Gabriel, Heldreth, Tyree and White), later joined by defendant Newman, knelt in front of the clinic on the south walkway, bowing their heads and praying.

Shortly thereafter officers of the Washington Metropolitan Police Department cordoned off the front of the clinic with police tape. The enclosed area included both front entrances to the clinic, as well as the main sidewalk along the length of the front of the building. Beginning at 8:15 a.m., police officers issued three warnings to all individuals inside the tape line

Page 282

that if they did not vacate the cordoned area they would be arrested for incommoding in violation of D.C. Code Ann. § 22-1107.1 Mahoney--who until this time had been outside the cordoned area--approached a police officer and asked whether anyone was allowed inside the tape line. The officer told him no. Mahoney then crossed the line, proceeded down the north walkway, knelt near the north clinic door and prayed aloud, expressing his hope that the demonstration would prevent abortions from occurring. The police arrested the individuals inside the cordoned-off area, including the seven defendants. Each was charged with incommoding, and was released after pleading guilty and paying a $50 fine. Throughout the demonstration the clinic continued to treat patients by admitting them through a rear entrance. Although other demonstrators impeded entry through that door, clinic volunteers were able to escort patients into the facility.

The United States later brought this action in federal district court, charging the defendants with violating the Access Act and seeking an injunction (the government dropped its request for civil penalties and statutory damages). After a two-day bench trial, the court ruled in favor of the government and entered a permanent injunction.


The attorneys for the defendants must think that the more issues they raise, the greater their chance of success. Their briefs squeeze nine issues out of this case, and many more sub-issues. Untenable arguments get equal billing with potentially promising ones. Because every contention is treated equally, none receives much in-depth analysis. We will not be drawn into providing a written response to every one of the defendants' contentions. They have displayed no judgment about what is a good argument and what is a bad one. See United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993). We hope this opinion will provide some guidance: those defense arguments not specifically addressed have been considered and found so untenable that they do not warrant comment.


We have sustained the Access Act against a facial constitutional challenge. Terry v. Reno, 101...

To continue reading