53 F.3d 428 (1st Cir. 1995), 94-1699, Libertad v. Welch

Docket Nº:94-1699.
Citation:53 F.3d 428
Party Name:Lydia LIBERTAD, et al., Plaintiffs-Appellants, v. Father Patrick WELCH, et al., Defendants-Appellees.
Case Date:April 28, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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53 F.3d 428 (1st Cir. 1995)

Lydia LIBERTAD, et al., Plaintiffs-Appellants,


Father Patrick WELCH, et al., Defendants-Appellees.

No. 94-1699.

United States Court of Appeals, First Circuit

April 28, 1995

Heard Nov. 8, 1994.

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Catherine Albisa, New York City, with whom Judith Berkan, San Juan, PR, was on brief, for appellants.

Mathew D. Staver, with whom Frederick H. Nelson and Nicole M. Arfaras, Orlando, FL, were on brief, for appellees Ed Martin, Donald Treshman and Rescue America.

Miguel A. Gimenez-Munoz and Cordero, Miranda & Pinto, Old San Juan, PR, on brief, for appellees Father Patrick Welch and Norman Weslin.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

A group of individuals and organizations representing women who have sought or will seek family planning services in Puerto Rico ("Appellants") brought this action against certain individuals and organizations ("Appellees") who oppose abortion and coordinate anti-abortion demonstrations at women's health clinics in Puerto Rico. The Appellants appeal from the district court's grant of summary judgment disposing of their claims brought under Secs. 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations Act, ("RICO"), 18 U.S.C. Sec. 1961 et seq. (1984), and the "hindrance clause" of 42

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U.S.C. Sec. 1985(3) (1981). 1 In granting summary judgment for Appellees, the district court ruled: 1) that Appellants' claims brought under Secs. 1962(c) and (d) of RICO failed because Appellants did not show either the existence of an enterprise or a pattern of racketeering activity; and 2) that Appellants' claims brought under the "hindrance clause" of the "Ku Klux Klan Act," 42 U.S.C. Sec. 1985(3), failed because Appellants did not show "that the purpose of [Appellees'] alleged conspiracy was to prevent or hinder law enforcement officers from giving or securing to women their right to seek abortions." For the following reasons, we affirm in part and reverse in part.


A. The Parties

Appellants initiated this action on behalf of women seeking reproductive health services and their health care providers. Among the named plaintiffs are two women using the pseudonyms "Lydia Libertad" and "Emilia Emancipacion." Both Libertad and Emancipacion are Puerto Rico residents and have sought reproductive health services on the island. Another plaintiff, Rosa Caceres, is the Clinic Administrator at the Women's Metropolitan Clinic ("WMC") in Rio Piedras, Puerto Rico, which provides a range of reproductive health services including abortion. WMC is owned in turn by plaintiff Oficinas Medicas. Plaintiff Mary Rivera is the Clinic Supervisor and Director of Counselling at the Clinica Gineco-Quirurgica, ("Clinica") which also provides reproductive health services including abortion. Plaintiffs Ana E. Gonzalez-Davila ("Gonzalez") and Dr. Rafael E. Castro-De Jesus ("Castro") are, respectively, the administrator and the medical director of plaintiff Ladies Medical Center ("LMC"), which also provides reproductive health services including abortion. The Grupo Pro Derechos Reproductivos, an abortion rights organization, is also a plaintiff.

Defendant Father Patrick Welch is the head of the anti-abortion rights organization Pro-Life Rescue Team ("PLRT"), also a named defendant. Defendants Donald Treshman and Reverend Ed Martin are, respectively, the National Director and the Executive Director of defendant Rescue America, a nationwide anti-abortion rights group based in Houston. Defendant Norman Weslin is the director of the defendant anti-abortion rights group the Sacrificial Lambs of Christ ("SLC"). Defendant Carlos Sanchez is a member of the anti-abortion rights group Pro-Vida.

B. Events Leading to this Action

We present the facts here in the light most favorable to the Appellants. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994) (when reviewing grant of summary judgment, record is examined in light most favorable to nonmovant). Some or all of the Appellees staged protest demonstrations, which they refer to as "rescues," at the plaintiff clinics on five occasions: September 26, 1992, September 28, 1992, December 17, 1992, December 24, 1992, and January 8, 1993. During each of the five protests, Appellees blockaded the clinics so that clinic personnel and patients could not enter. Each blockade was carried out in a similar manner. Typically, the protests began before the clinics opened, with Appellees blocking access to the clinics and parking lots by physically obstructing the entrances, linking their arms tightly together and refusing to allow anyone to pass through. Outside, the protesters shouted slogans through megaphones to clinic personnel and patients, told patients that they were "murderers," screamed insults at clinic personnel, and videotaped or photographed people as they attempted to enter and leave the clinics. The protesters also defaced the clinic property by affixing difficult-to-remove stickers depicting fetuses on the walls and entrances, and by scrawling graffiti on the clinic walls. During these blockades, litter was strewn around clinic property and on the properties of surrounding businesses. In addition to effectively shutting down the clinics for all or

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part of a day, these protests caused extensive and costly property damage to the clinics.

Appellee Welch and some of the minor children who protest with him have on occasion entered the clinics and intimidated or harassed patients and staff. On September 26, 1992, Welch invaded the LMC and pushed plaintiff Gonzalez from the clinic entrance all the way through the waiting room to the back office, trapping her there for a number of hours. On September 28, 1992, Welch and a young girl entered one of the clinics and remained in the waiting room, despite being told to leave by clinic staff. Patients with appointments would enter and then leave when they recognized Welch in the waiting room. Eventually, the police had to come and remove Welch and the young girl.

The record indicates that of the five protests at issue in this case, the January 8, 1993 protest is the only one at which all of the Appellees, not just Welch and his followers, participated. The tactics employed on January 8 were considerably more aggressive. In addition to the above-mentioned blockade methods, Appellees also blocked clinic access by parking buses in front of clinic entrances and then refusing to move them when instructed to do so by the police. Appellees chain-locked a clinic entrance and then covered the lock with tape to prevent it from being pried open. One clinic supporter received a death threat from a protester. The clinic suffered considerable property damage as well; locks were filled with glue or gum, and gates were broken or otherwise damaged to prevent entry.

When the police attempted to arrest protesters on January 8, many protesters climbed under the motor vehicles to avoid arrest. Demonstrators also used other delay tactics, such as going limp when police arrested them, or lying down on the ground and locking arms, thus making it nearly impossible for the officers to physically remove them from the clinic property. The evidence also indicates that some protesters actively resisted arrest by assaulting officers, or by flailing their arms to make the officer's task more difficult and time-consuming. At one blockade, protesters poured acid in a police van in which several arrestees were held, necessitating that they be taken out of the van and further delaying the police.

The blockades demand that local law enforcement officials expend a significant amount of time and resources; between forty-five and sixty officers are usually deployed for each protest. Law enforcement officials testified that they are overwhelmed by the protesters' tactics, that they are unable to either deter the blockades or keep the clinics open during the blockades.

Some Appellees explained during depositions and at the hearing that one reason for these tactics is to "buy time" for the "unborn"--i.e., to delay their arrests, thereby prolonging the blockade of the clinic and delaying or preventing the clinic from resuming its business, particularly the performance of abortions.

C. Procedural History

On January 8, 1993, Appellants filed the instant action seeking a temporary restraining order, a preliminary injunction, and a permanent injunction enjoining Appellees from using unlawful force, harassment, intimidation, and physical obstruction during their protests in front of Puerto Rico clinics. The district court denied the motion for a temporary restraining order, but held a hearing from February 4-9, 1993 on Appellants' request for a preliminary injunction, during which extensive testimonial and documentary evidence was presented by both parties.

On February 9, 1993, during the hearing, Appellees' counsel moved for dismissal of the complaint as to defendants SLC and Rescue America on the grounds of defective service of process. 2 The court examined the record and found that service on these defendants was defective because the summons failed to state the name of the person served. The court attempted to have the U.S. Marshal who had served the summons called into

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court to testify, but the Marshal was unavailable. The court did not rule at that time on the defective service of process issue, but advised Appellants' counsel to "inquire" about the problem. At the hearing's close, the court ordered the parties to submit post-hearing briefs.

On November 1, 1993, the district court denied the preliminary injunction, ruling that Appellants had not demonstrated a reasonable likelihood of success on the merits of...

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