991 F.2d 1039 (2nd Cir. 1993), 321, Town of West Hartford v. Operation Rescue

Docket Nº:321, Docket 92-7595.
Citation:991 F.2d 1039
Party Name:TOWN OF WEST HARTFORD, Summit Women's Center West, Incorporated, Plaintiffs-Appellees, v. OPERATION RESCUE, Project Life, Inc., Connecticut Pro-Life Action Network, John Kladde, Eileen M. Haggerty, William P. Cotter, Faithful and True Roman Catholics, John Doe, Jane Doe, Massachusetts Pro-Life Action Network, Bi-State Operation Rescue Network, John
Case Date:April 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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991 F.2d 1039 (2nd Cir. 1993)

TOWN OF WEST HARTFORD, Summit Women's Center West,

Incorporated, Plaintiffs-Appellees,


OPERATION RESCUE, Project Life, Inc., Connecticut Pro-Life

Action Network, John Kladde, Eileen M. Haggerty, William P.

Cotter, Faithful and True Roman Catholics, John Doe, Jane

Doe, Massachusetts Pro-Life Action Network, Bi-State

Operation Rescue Network, John Henshaw, Thomas J. Herlihy,

Lawrence Dolan, Defendants,

Joseph M. Scheidler, Randall A. Terry, John Charles Grant,

Jean Pollock, Catherine A. Jersey, Lillian A. Loughlin,

William Calvin, Hjalmar Syversen, Robert E. Cooley, Jayne C.

Tuller, Dolores M. Teleski, Defendants-Appellants.

No. 321, Docket 92-7595.

United States Court of Appeals, Second Circuit

April 21, 1993

Argued Oct. 19, 1992.

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Jon L. Schoenhorn, Hartford, CT (Schoenhorn & Freeman, Pamela R. Hershinson, West Hartford, CT, on the brief), for plaintiff-appellee Summit Women's Center West, Inc.

Vincent P. McCarthy, New Milford, CT (Representing all defendants-appellants except John Kladde).

Joseph P. Secola, New Milford, CT (The Rutherford Institute of Connecticut, Inc. on the brief), (Representing all defendants-appellants except Randall Terry).

Anthony F. Slez, Jr., Westport, CT (Slez and Slez, on the brief), for amici curiae, Nat. Organization for Women, Connecticut, Nat. Lawyers' Guild, Connecticut Civil Liberties Union, Nat. Abortion Federation, Planned Parenthood Federation of America, Inc., Nat. Abortion Rights Action League, Connecticut Affiliate.

Before: KEARSE and MINER, Circuit Judges, POLLAK, [*] District Judge.

POLLAK, District Judge:

This case is an appeal from a permanent injunction designed to prevent interference by anti-abortion protesters with access to a women's medical facility patronized by women seeking abortions and related medical services.

The events giving rise to this case were massive anti-abortion demonstrations that took place in West Hartford, Connecticut, on April 1, 1989, and June 17, 1989. The demonstrations appear to have been the handiwork of persons associated with Operation Rescue, an anti-abortion organization whose activities have been the focus of a substantial corpus of litigation in the federal courts. See, e.g., Bray v. Alexandria Women's Health Clinic, --- U.S. ----, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); Lucero v. Operation Rescue of Birmingham, 954 F.2d 624 (11th Cir.1992); Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218 (6th Cir.1991); New York State NOW v. Terry, 886 F.2d 1339 (2d Cir.1989),

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cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C.1989); Roe v. Operation Rescue, 710 F.Supp. 577 (E.D.Pa.1989), aff'd, 919 F.2d 857 (3d Cir.1990). The two West Hartford demonstrations were aimed at Summit Women's Center West ("Center"), a medical facility providing a spectrum of women's services, including abortions. On each occasion, there was mass picketing outside the building in which the Center's offices are located. And on each occasion "rescuers" forced their way into the Center's offices and occupied the premises throughout the business day. On April 1, 1989, the picketing and occupation impeded the Center's scheduled abortions. On June 17, 1989, the Center was prevented from performing any of the scheduled abortions. On both days the demonstrators' unruly conduct required the intervention of approximately forty West Hartford police officers of the Town of West Hartford ("Town")--a third of the town force. On both days, many demonstrators were arrested.

On June 29, 1989, less than two weeks after the second demonstration, the Town brought suit in the United States District Court for the District of Connecticut against Operation Rescue and several individuals allegedly involved in the demonstrations. The federal claims relied on were that (1) defendants' conduct was Hobbs Act "extortion," 18 U.S.C. § 1951(a), directed both at the Town and at the Center--a pattern of criminal offenses which were predicate acts for purposes of RICO, 18 U.S.C. §§ 1962 et seq.; and (2) defendants' conduct constituted a conspiracy to deprive persons of their constitutional rights, in contravention of section 1985(3) of Title 42, the so-called Ku Klux Klan Act. 1 In addition, the Town alleged certain pendent state claims, including a claim of public nuisance. Under both the federal and state claims, the complaint sought injunctive and declaratory relief as well as damages.

In late July of 1989--approximately four weeks after the filing of the Town's complaint--the district court conducted a three-day evidentiary hearing on the Town's motion for a preliminary injunction. Subsequent to the hearing, the Town withdrew the civil rights conspiracy claim under § 1985(3).

On September 21, 1989, the district court ruled on the Town's motion for a preliminary injunction. See Town of West Hartford v. Operation Rescue, 726 F.Supp. 371 (D.Conn.1989) rev'd, 915 F.2d 92 (2d Cir.1990). In discussing its authority to entertain the Town's RICO claim and pendent state claims, the district court noted that the Town's withdrawal of its § 1985(3) claim "leaves the RICO claim as [the] sole basis for federal jurisdiction over this action." Id. at 376.

In detailed findings of fact the district court outlined the obstructive and invasive conduct shown to have been engaged in, on April 1 and June 17, 1989, by Operation Rescue and several (but not all) of the named individual defendants. In its conclusions of law, the district court held that

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the Town could not prevail on the injunctive aspect of its RICO cause of action for the reason that the RICO statute does not contemplate the issuance of injunctions in favor of plaintiffs other than the United States. 18 U.S.C. § 1964(c). The district court then went on to consider the pendent causes of action arising under Connecticut law. Concluding that the Town had established a probability of success with respect to its public nuisance claim, the district court entered a preliminary injunction prohibiting Operation Rescue and eight of the individual defendants from entering the Center or obstructing access thereto.

On appeal, this court, on December 26, 1990, vacated the preliminary injunction. See Town of West Hartford v. Operation Rescue, 915 F.2d 92 (2d Cir.1990). This court ruled that the Town's RICO allegations did not present even a colorable claim of Hobbs Act "extortion" of the Town, 18 U.S.C. § 1951(b), or of RICO injury to the "business or property" of the Town, 18 U.S.C. § 1964(c). Hence, this court held that the district court lacked subject-matter jurisdiction of the Town's RICO cause of action. 2 This court further held that, in the absence of subject-matter jurisdiction over the single federal claim presented by the Town, the district court lacked authority to address the Town's pendent state law claims. Accordingly, this court vacated the preliminary injunction entered by the district court and remanded the case with directions to dismiss the Town's complaint. See 915 F.2d at 104-05. However, this court noted that, subsequent to the entry of the preliminary injunction, the district court had granted a motion filed by the Center to intervene as a party plaintiff. This court therefore anticipated that the order remanding the case might not terminate the litigation: "We have not considered the sufficiency of the Center's claims, and the district court may in its discretion do so, consistent with this opinion, on remand." Id. at 105.

While the appeal from the September 21, 1989 preliminary injunction was pending in this court, there had been further activity in the district court. Subsequent to the Center's intervention as a plaintiff, the Town and the Center, on December 7, 1989, filed a second amended complaint. Named as defendants were Operation Rescue and several of the original individual defendants. Other organizations and individuals were added as defendants, and certain original individual defendants were dropped. The Town's federal cause of action remained its RICO claim; pendent to it were Connecticut law claims of public nuisance and of negligence; certain other pendent Connecticut law claims appearing in the original complaint were dropped. The Center's portion of the second amended complaint invoked federal jurisdiction both under RICO and under § 1985(3). The Center's RICO claim, focusing on "extortion," substantially paralleled the Town's RICO claim. The Center's § 1985(3) claim alleged a conspiracy to deny "women seeking abortions and other family planning services at facilities the equal protection of the laws and the equal privileges and immunities under the law and obstructing travel"; the defendants were alleged "to be motivated by an invidiously discriminatory animus directed at the class of women seeking to exercise their constitutional and legal right to choose abortions and other family planning services...." The Center's pleading also alleged pendent Connecticut law claims of nuisance, 3 trespass, tortious interference with business, and negligence. The plaintiffs sought injunctive relief and damages.

On October 12, 1990, the Center moved for a preliminary injunction. On October 31, 1990, the Town also moved for a preliminary injunction. On the same day, the district court held a hearing on the motions for a preliminary injunction; the parties agreed that the evidence taken in July of

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1989, in connection with the Town's original motion for a preliminary injunction, could be treated as before the court for purposes of the new preliminary injunction motions.

On July 22, 1991, the district court entered orders (1) dismissing the Town's...

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