USA. v. Mahoney

• Decision Date: 01 May 2001
• Docket Number: Nos. 00-5036,No. 00-5035,00-5090,00-5055,00-5035,s. 00-5036
• Citation: 247 F.3d 279
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Patrick J. Mahoney, et al., Appellants Consolidated with& 00-5148
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 279

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

United States of America, Appellee v. 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 FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 9, 2001

Decided May 1, 2001

[Copyrighted Material Omitted] 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.

I.

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 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.

II.

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.

A.

We have sustained the Access Act against a facial constitutional challenge. Terry v. Reno, 101 F.3d 1412 (D.C. Cir. 1996). Defendants do not ask for reconsideration of Terry. They do claim that the district court erred in finding that they had violated the Act. To make out a violation the government had to prove that the defendants (1) "by physical obstruction," (2) "intentionally" (3) "injure[d], intimidate[d] or interfere[d] with or attempt[ed] to injure, intimidate or interfere with any person," (4) "because that person is or has been ... obtaining or providing reproductive health services." 18 U.S.C. 248(a)(1). "[P]hysical obstruction" is defined as "rendering impassable ingress to or egress from a facility that provides reproductive health services ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous." 18 U.S.C. 248(e)(4). The record leaves no doubt that the government established its case against six of the seven defendants--Benham, Gabriel, Heldreth, Tyree, Newman, and White. Their argument--or more accurately, their bare assertion--is that they did not obstruct or block access to the clinic. The evidence is to the contrary. When they arrived at the clinic, Gabriel, Heldreth, Tyree, Newman, and White knelt or sat within five feet of the south door, the main entrance to the clinic. Benham was pacing just behind them. When the police tried to remove them they offered passive resistance and had to be carried away.

B.

The seventh defendant, Mahoney, seeks to differentiate himself from the others. He contends that he was familiar with the operation of the Capitol Women's Center, having protested there before, and that as an experienced demonstrator he knew the north walkway led to a locked door. And so he claims that when he crossed over the police tape, walked to the north door, positioned himself three feet from it and prayed aloud he did so without intending to obstruct anyone. The district court found that this door and its connected walkway were "rarely used," that the door served "largely [as] an exit for emergencies" and that it was "generally locked." United States v. Alaw, No. 98-1446, mem. op. at 8 (D.D.C. Jan. 21, 2000). The fact that the door was locked, Mahoney argues, meant that it was impossible for him to "render[ ] impassable ingress to or egress from" the facility. 18 U.S.C. 248(e)(4) (defining "physical obstruction"). He also claims that his selection of the north door shows that he did not intend to obstruct or attempt to obstruct entrance to the clinic, and was there to express his solidarity with those who were protesting.

The district court found that Mahoney interfered or attempted to interfere with ingress or egress from the facility, mem. op. at 28, and that he did so with the requisite specificintent. Id. at 30. We may set aside a district court's factual findings only if they are "clearly erroneous." Fed. R. Civ. P. 52(a); United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). At trial Mahoney repeatedly stated that he selected the north door of the clinic specifically so he would not interfere with ingress or egress. On direct examination, when asked why he elected to kneel and pray before the north door, he answered: "The reason I chose that [door is] because I know that that door is never used, that no patients or staff ever go in there, so I could be assured that I would not interfere, harass or intimidate or block anyone wanting to use the clinic." The district court refused, however, to credit this "post hoc self-serving explanation." Mem. op. at 30. We have no basis for setting aside what amounted to the district court's assessment of Mahoney's credibility. Bishopp v. District of Columbia, 788 F.2d 781, 785 (D.C. Cir. 1986). The court also noted that while on the walkway in front of the north door, Mahoney said "let's pray right now for any woman who was thinking about coming here this morning ... as she sees all this going on, oh God, that she would make the decision to save her child ... Father, we pray that even as they come driving down this street and saw the police tape and saw the folks out, that Father they would make the decision for life." Mem. op. at 30. In light of this evidence and the other circumstances of the protest, including Mahoney's organizational role in the event, id. at 9, the district court's determination that Mahoney acted with the requisite specific intent is not clearly erroneous.

The question remains whether the government proved the other elements of a statutory violation. The district court found that Mahoney intentionally interfered with persons seeking reproductive care by physically obstructing access to the clinic, or at least attempting to do so. We agree that he...