Lucero v. Operation Rescue of Birmingham

• Decision Date: 15 August 1991
• Docket Number: No. CV91-PT-1082-S.,CV91-PT-1082-S.
• Citation: 772 F. Supp. 1193
• Parties: Bruce LUCERO, M.D., and Jane Doe(s), being fictitious names, real names of said plaintiffs being withheld to protect their privacy, said fictitious names being intended to designate present and prospective patients and staff members of Dr. Lucero, Plaintiffs, v. OPERATION RESCUE OF BIRMINGHAM, Birmingham Rescue Mission, Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin, John Michael Vice, Bill Stamp, Doug Scofield, Scott Houser and all other individuals, associations and organizations whose names or legal identities are otherwise unknown to plaintiffs at this time, with whom they have conspired and acted in concert to deprive plaintiffs of their rights. Defendants.
• Court: U.S. District Court — Northern District of Alabama

772 F. Supp. 1193

Bruce LUCERO, M.D., and Jane Doe(s), being fictitious names, real names of said plaintiffs being withheld to protect their privacy, said fictitious names being intended to designate present and prospective patients and staff members of Dr. Lucero, Plaintiffs, v. OPERATION RESCUE OF BIRMINGHAM, Birmingham Rescue Mission, Randall Terry, Joseph Foreman, James Pinto, Leonard Gavin, John Michael Vice, Bill Stamp, Doug Scofield, Scott Houser and all other individuals, associations

and organizations whose names or legal identities are otherwise unknown to plaintiffs at this time, with whom they have conspired and acted in concert to deprive plaintiffs of their rights. Defendants.

No. CV91-PT-1082-S.

United States District Court, N.D. Alabama, S.D.

August 15, 1991.

David Elliott Hodges, Fliegel & Hodges, Birmingham, Ala., Alan M. Pollack, New York City, for plaintiffs.

J. Timothy Smith, Donald L. Collins, Thompson and Griffis, Michael J. Evans, Longshore Evans & Longshore, Kimberly R. West, Mark W. Lee, Parsons Lee & Juliano, Albert L. Jordan, Wallace Brooke & Byers, Timothy Scott Ritchie, Wallace Brooke & Byers, Birmingham, Ala., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PROPST, District Judge.

This cause is pending on plaintiffs' application for preliminary injunction. The court has conducted an evidentiary hearing.¹

The court will now attempt to bring some ordered legal consideration to an area which is fully occupied by dialecticians and polemists; each having his or her own brand of contradictory certitude. The task is made considerably more difficult by the unsettled state of the law; particularly as it relates to the federal claims and the subject matter jurisdiction of the court.

The court starts with the inescapable conclusion that the evidence fully supports plaintiffs' position that they have been legally wronged. This court clearly does not have jurisdiction to determine if any of the plaintiffs, themselves, are guilty of some wrong at a divine level of behavioral assessment.

The determination that the plaintiffs have been legally wronged, however, is not the final answer. Before the court can reach the final answer, it must decide several interim issues. These are:

(1) Does this court have subject matter jurisdiction under a federal statute which provides for a preliminary injunction.²

(2) Is there sufficient evidence as to a particular defendant to allow for injunctive relief as to that defendant?

(3) Have the usual standard requirements for the granting of a preliminary injunction been met in this case at this juncture?

Findings of Fact

Before the court wrestles with the difficult legal issues, it will find certain underlying facts so that any party may have the benefit of such findings in the event of an appeal. The court will restrict itself to essential facts rather than encumber the record with details.³

Plaintiff, Dr. Bruce Lucero (Lucero), is a physician licensed to practice medicine by the State of Alabama. Lucero specializes in the area of gynecology and provides his patients with general gynecological services including pregnancy and blood testing, prescriptions for birth control, family counseling, and abortions. Lucero sees approximately 3,000 patients per year and performs approximately 1,500 abortions per year. Lucero is suing on behalf of himself and his patients. One or more of his patients have also purportedly brought this action on their own behalf using the pseudonym of "Jane Doe."⁴

Lucero maintains his medical office (Clinic) at 1513 4th Avenue South, Birmingham, Alabama. Lucero's office is located on private property. Pursuant to the terms of this lease, Lucero has access to the office building occupied by him and the parking area which joins it. No defendant was invited or authorized by Lucero, any other tenant, the owners, or the management company which operates the property to come onto said premises. Lucero's practice consists of some patients who may come from states other than Alabama and also patients who reside in Alabama. Medical records introduced into evidence suggest that for a recent six month period of time, some one and one-half percent (1.5%) of Lucero's patients resided in states other than Alabama, and thus may have traveled across state lines to reach his office. There is no substantial evidence that any such patient has been interfered with by any defendant. There is a reasonable inference that patients who reside outside of Alabama have been referred to the Clinic by others outside Alabama. The fact that the Clinic performs abortions beyond the first trimester contributes to this fact.

Beginning in 1988, there have been several "rescues" at various medical offices which provide abortion services in the City of Birmingham. An organization or association known as "Operation Rescue" has been active in these "rescue" operations. The court will later address the involvement, if any, of individually named defendants in these "rescues." A rescue consists of a large number of people physically placing their bodies between the doors of facilities where abortions are performed and those seeking to gain entrance to the facility. As a result of rescues conducted at Birmingham area abortion facilities, patients and staff of various facilities have been denied entrance to the facility for substantial periods of time until the Birmingham police aid their entry.⁵

As the court has previously noted, portion of Lucero's patients may travel from states other than Alabama to his office. The individuals organizing the rescues in Birmingham, and those participating in the rescues were attempting to prevent women from exercising their constitutional and fundamental right to obtain an abortion. If on the day such rescues occurred, any woman from outside the State of Alabama had been seeking to enter Lucero's office for an abortion, she, as well as residents, would have been impeded in attaining access to the Clinic during the rescue period. The rescues would not have occurred but for the fact that women were seeking lawful abortion services. The activity challenged, therefore, is clearly directed at that class of women seeking to exercise their fundamental and constitutional right to obtain an abortion and those persons who would aid them in doing so. Two other facilities in Birmingham where abortions are performed have been blockaded on several occasions in the past.

Defendant James Pinto (Pinto) was present at most, if not all, the various rallies and rescues and actively encouraged those present to participate in rescues as instructed. There is no question that Pinto was and is committed to preventing or impeding, on the occasions of rescues, the entry of those persons into the clinics who would seek abortions or provide abortion services. His ultimate objective, and that of Operation Rescue, would be to close all clinics to abortion activities. Pinto, along with Operation Rescue, has actively participated in disruptive and obstructive activities at Lucero's clinic and other such clinics. He has been arrested on more than one occasion for such activities. Pinto was represented but did not testify. Based on his past acts and statements, the court finds that defendant Pinto was a leader of the rescue movement and conspired to engage in such unlawful activities with others and will likely continue to engage in such conduct until the rescue objective is achieved.

Officer Rebecca Dill of the Birmingham Police Department testified, and the court finds, that defendant Leonard Gavin (Gavin) also participated in at least two of the Operation Rescue rallies she attended. Gavin has been arrested at Lucero's office on at least two occasions, the latest being March 2, 1991. At planning rallies, Gavin instructed the participants that during the course of the rescue, they were to follow the instructions of certain individuals designated as "crowd marshals." These marshals were to direct the rescuers as to when to begin the rescue, where to go during the rescue, and were to signal for a second group of rescuers to begin taking the places of those rescuers who were arrested by the Birmingham Police Department.

Operation Rescue, Gavin and Pinto actively led and participated in various activities which were designed to and did impede, for substantial periods, the entry of plaintiffs into the Clinic. There is no doubt about the activities of Gavin and Pinto being at the top level of Operation Rescue's activities. These activities include physically blocking entry to the Clinic and similar facilities. The evidence substantially supports a conclusion that Pinto, Gavin and Operation Rescue intend to continue such activities.

There is little question that defendant Doug Scofield (Scofield) is sympathetic with the activities of Pinto, Gavin and Operation Rescue. He, however, is an attorney who could have been legitimately present at various functions to give legal advice. While he did not testify, there is no evidence that he personally participated in or advised others to participate in any disruptive or obstructive activity. He did give advice with regard to potential arrests, etc. There was no evidence that Scofield was the attorney for any particular named client. The court cannot conclude that his being present and giving legal advice constitutes a violation of any right; certainly not one which should be enjoined at this stage.⁶

The evidence shows that defendant Bill Stamp (Stamp) was a pastor at Liberty Church (Church) where at least four Operation Rescue planning rallies were held starting in November 1988. Stamp spoke at these rallies and his Church was available to those involved in the rescue movement. Church served as the command post for Operation Rescue and as the mailing address for Birmingham Rescue Mission. Stamp was arrested during the course of one or more rescues. He has aided in the planning of the rescues.

Defendant Scott...