Lucero v. Trosch

• Decision Date: 01 November 1995
• Docket Number: Civ. A. No. 95-0308-CB-M.
• Citation: 904 F. Supp. 1336
• Parties: Bruce LUCERO, M.D., and New Woman All Women Health Care, Plaintiffs, v. Father David TROSCH, the entity calling itself Life Enterprises, its officers, employees and its contractors, and all other individuals, associations, entities and organizations whose legal identities are otherwise unknown to the Plaintiffs at this time with whom Defendants are actually or are attempting to injure, intimidate, or interfere with persons seeking to obtain or provide reproductive health services by force, or threat of force, or by physical obstruction in violation of Federal Law, and any persons, entities, associations or organizations protesting against abortion, and all other persons, entities, associations, and organizations acting in concert or participation with the above-named Defendants or on their behalf with notice in any manner or by means prescribed in Fed.R.Civ.P.R. 4, Defendants.
• Court: U.S. District Court — Southern District of Alabama

904 F. Supp. 1336

Bruce LUCERO, M.D., and New Woman All Women Health Care, Plaintiffs, v. Father David TROSCH, the entity calling itself Life Enterprises, its officers, employees and its contractors, and all other individuals, associations, entities and organizations whose legal identities are otherwise unknown to the Plaintiffs at this time with whom Defendants are actually or are attempting to injure, intimidate, or interfere with persons seeking to obtain or provide reproductive health services by force, or threat of force, or by physical obstruction in violation of Federal Law, and any persons, entities, associations or organizations protesting against abortion, and all other persons, entities, associations, and organizations acting in concert or participation with the above-named Defendants or on their behalf with notice in any manner or by means prescribed in Fed.R.Civ.P.R. 4, Defendants.

Civ. A. No. 95-0308-CB-M.

United States District Court, S.D. Alabama, Southern Division.

November 1, 1995.

Alan M. Pollack, New York City, Timothy M. Beasley, Birmingham, AL, for Bruce Lucero, New Woman All Woman Health Care.

Vincent F. Heuser, Jr., Liberty & Justice, Inc., Louisville, KY, for David Trosch.

Robert Anthony Cothren, Birmingham, AL, for Minzor Chadwick.

Ray O. Noojin, Jr., Birmingham, AL, for Kathleen McConnell.

William E. Swatek, Alabaster, AL, for Eleanor Stisher.

Caryl Privett, U.S. Attorney, Robert S. Vance, Birmingham, AL, for Chris Harding.

ORDER

BUTLER, Chief Judge.

This matter is before the court on the defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted. After careful consideration of the arguments raised by both parties in their briefs, the court finds that the motion is due to be GRANTED in part, and DENIED in part.

I. Factual Background¹

Plaintiff Bruce Lucero, M.D. ("Lucero") is a physician who provides reproductive health services, including abortions, at the New Woman All Women Health Care Clinic in Birmingham, Alabama. On October 5, 1994, Lucero and defendant Fr. David Trosch ("Trosch") appeared as guests on the Geraldo Show, which was filmed in New York, New York. Transcripts of the show indicate that Trosch's responses to questions posed by the program's host included the following:

Q: — Father David Trosch would you murder an abortion doctor if you had the gun in your hand?

A: No, I would not murder him, but I would kill him, there's a difference.

* * * * * *

Q: Sitting along side you, Dr. Bruce Lucero, a doctor who admits to performing abortions —

A: — he is a mass murder —

Q: — would you kill him?

A: He is a mass murderer and should be dead. Absolutely.

Q: He should be dead?

A: Should be dead.

* * * * * *

Q: Father Trosch, do you have the courage to say that you would kill him?

A: He deserves to be dead, absolutely.

Geraldo Show Transcript (Exhibit A to Defendant's Brief), at 2, 3.²

Two months previously, in August 1994, Trosch appeared on the Shelly Stewart Show, which was filmed in Birmingham, Alabama. The tenor of Trosch's remarks on Shelly Stewart was generally similar to that of his comments on Geraldo, as he asserted that those who provide abortions should be killed and suggested that he could possibly kill one who performed abortions.³ Lucero was not present at the show's taping, and none of Trosch's statements on Shelly Stewart made specific reference to Lucero.

Lucero and the business at which he works, New Woman All Women Health Care Clinic, brought this action in the Northern District of Alabama, alleging that Trosch's conduct on the Geraldo Show and the Shelly Stewart Show violated the Free Access to Clinic Entrances Act, or "F.A.C.E." (hereinafter "the Access Act" or "the Act"), 18 U.S.C. § 248.⁴ The complaint also asserted a state-law claim for private nuisance. Trosch filed a motion to dismiss the action on the grounds of failure to state a claim upon which relief can be granted and improper venue. By order dated April 14, 1995, Judge Propst transferred the action to this court on the ground that venue did not properly lie in the Northern District of Alabama.⁵

II. Discussion

Trosch's motion to dismiss consists of three principal arguments, to-wit: (1) his statements were beyond the purview of the Access Act; (2) the Access Act is unconstitutional under the First, Fifth, Eighth, Tenth, and Fourteenth Amendments to the Constitution; and (3) there is no valid basis in Alabama law for the nuisance claim asserted against Trosch. Each of Trosch's contentions shall be considered in turn.

A. Applicability of the Access Act

The Access Act creates a civil right of action against anyone who

"by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services." 18 U.S.C. § 248(a)(1).

Trosch contends that his words on the Geraldo Show did not rise to the level of force, threats of force, or physical obstruction sufficient to trigger the Access Act right of action, and that Lucero's claim for relief under the Act must be dismissed on that basis. In the alternative, Trosch contends that the Access Act is inapplicable because the statute excludes expressive conduct protected by the First Amendment.

1. Trosch's Statements as "Threats of Force"

Although the Access Act itself does not specifically define the term "threat of force", the Eleventh Circuit has elaborated on the term slightly, construing it as a "threat of physical force placing a person in reasonable apprehension of bodily harm." Cheffer v. Reno, 55 F.3d 1517, 1521 (11th Cir.1995); see also U.S. v. Brock, 863 F.Supp. 851, 857 (E.D.Wis.1994) (the Access Act is limited to "true threats", meaning those which could reasonably produce in victim a fear that threat would be carried out). Moreover, the court may obtain guidance from the multitude of cases defining the terms "threat" or "threat of force" in the context of analogous statutory provisions. These opinions indicate that a threat is a statement made "under such circumstances that a reasonable person would construe it as a serious expression of an intention to inflict bodily harm upon or to take the life of the persons named in the statute."⁶ U.S. v. Callahan, 702 F.2d 964, 965 (11th Cir.1983) (interpreting 18 U.S.C. § 871). In the Eleventh Circuit, the test is an objective one which does not turn on the speaker's actual intentions. Id. at 965-66.

The court is unwilling to conclude as a matter of law that Trosch's statements, as set forth in Lucero's complaint, do not constitute threats of force actionable under the Access Act. See U.S. v. Stobo, 251 F. 689 (D.C.Del.1918) (whether statement that "The President ought to be shot and I would like to be the one to do it" constituted a threat was a question for jury); U.S. v. Stickrath, 242 F. 151 (D.C.Ohio 1917) (statement that President ought to be killed and that if he had the opportunity to do it, speaker would do so himself constituted threat). According to the complaint, Trosch said that Lucero "should be dead" and that he would kill an abortion doctor if he had a gun in his hand. Given the complaint's allegations of Trosch's words and the context in which they were spoken, the court cannot hold that a reasonable recipient could not have interpreted them as a serious expression of an intent to inflict bodily harm or death upon him.

Trosch argues that his statements on the Geraldo Show could not be construed as threats under the Access Act because: (1) they did not indicate any conduct by Trosch; (2) they did not express any intent to engage in future actions; and (3) they were not directed at Lucero. This argument must fail. Trosch has presented no case law stating that the three criteria outlined above are essential components of a threat; indeed, the weight of the precedents cited previously is at odds with such a legal construction of the term threat. More fundamentally, Trosch's contentions are meritless because they merely advance one interpretation of his statements on Geraldo. Based on the allegations before the court, other reasonable interpretations are possible. The court cannot foreclose the possibility that a reasonable recipient of Trosch's comments could have construed his remarks as satisfying all three of the articulated criteria.⁷ The fact that Trosch did not expressly state to Lucero that he was going to kill Lucero at some future time does not preclude a reasonable factfinder from determining that a threat was in fact made to Lucero. See U.S. v. Malik, 16 F.3d 45, 50 (2d Cir.1994) (threatening nature of communication may arise from reasonable connotations derived from its ambience); U.S. v. Gilbert, 884 F.2d 454, 457 (9th Cir. 1989) (the fact that a threat is subtle does not render it any less of a threat); U.S. v. Cox, 957 F.2d 264, 266 (6th Cir.1992) (a specific individual as a target of the threat need not be identified as such).

2. Trosch's Statements as Expressive Conduct

Trosch next contends that the Access Act is inapplicable because the statute specifically excludes from its reach "any expressive conduct protected from legal prohibition by the First Amendment to the Constitution." § 248(d)(1). Trosch asserts that his statements which aired on the Geraldo Show constituted protected speech under the First Amendment; therefore, he claims, Lucero is barred from invoking the civil remedies which would otherwise be available to him under the Access Act.

It is widely recognized that true threats of force are not cloaked in the protections afforded other types of speech by the First Amendment. See Watts v. U.S., 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (holding that "what is a threat must be distinguished from what is...