Lucero v. Trosch

• Decision Date: 28 May 1996
• Docket Number: Civil Action No. 95-0308-CB-M.
• Citation: 928 F. Supp. 1124
• Parties: Bruce LUCERO, M.D., et al., Plaintiffs, v. Father David C. TROSCH, Defendant.
• Court: U.S. District Court — Southern District of Alabama

928 F. Supp. 1124

Bruce LUCERO, M.D., et al., Plaintiffs, v. Father David C. TROSCH, Defendant.

Civil Action No. 95-0308-CB-M.

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

May 28, 1996.

John P. Furman, Mobile, AL, Alan M. Pollack, New York City, Timothy M. Beasley, Birmingham, AL, Jeffrey T. Stearns, Brewton, AL, for Plaintiffs.

J. Charles Wilson, Mobile, AL, for defendant.

ORDER

BUTLER, Chief Judge.

A non-jury trial was held in this cause on April 23, 1996. After careful review of the evidence presented at trial, the proposed findings of fact and conclusions of law submitted by the parties, and the supporting briefs, the Court hereby issues the following findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. Findings of Fact

Defendant Father David C. Trosch ("Fr. Trosch"), an ordained Roman Catholic priest, has been an outspoken advocate of what is known as the "doctrine of justifiable homicide" since the killing of Dr. David Gunn by an anti-abortion protester in early 1993. Plaintiffs' Exh. 57, at 62. Fr. Trosch has summarized this "doctrine" in the following manner: "I believe that anyone participating in the direct act of murdering innocent human beings, can have his or her life forfeited in the defense of innocent human life." Plaintiffs' Exh. 43, at 2. The rationale offered by Fr. Trosch for his adoption of the "justifiable homicide doctrine" is his belief that direct participants in the provision of abortion services are actively committing murder, and that killing such people would be a justifiable act because it would save innocent human lives (i.e., unborn children). Plaintiffs' Exh. 57, at 25. Applying this "doctrine" to real-world events, Fr. Trosch has declared that the actions of those who killed abortion providers such as Dr. Gunn and Dr. James Britton in recent years were justified if they were motivated by a desire to protect innocent human life. Id. at 26.

Plaintiff Bruce Lucero, M.D. ("Dr. Lucero"), is a physician who performs reproductive health services, including abortion services, and operates an adoption agency through his clinic in Birmingham, Alabama.¹ Though his practice initially encompassed family practice and pediatrics, Dr. Lucero has provided abortion services to his patients on a full-time basis since October of 1986, when anti-abortion protesters "scared away" his family practice patients. Dr. Lucero first became aware of Fr. Trosch's justifiable homicide theory in August of 1993, when the defendant garnered national media attention after attempting unsuccessfully to run an explicit, disturbing cartoon captioned "Justifiable Homicide?" as a paid advertisement in the Mobile newspaper.² In September of 1994, Dr. Lucero watched Fr. Trosch's televised appearance on The Shelly Stewart Show ("Shelly Stewart"), a Birmingham-area talk show. While on Shelly Stewart, the defendant made a number of incendiary statements regarding his justifiable homicide beliefs, including the following:

"Q: If everyone listened to you, there would be people by the hundreds, by the thousands, killed, wouldn't you say?

A: No, not at all. I believe if 20, 30, 40 doctors, abortionists, their staffs, were killed, the rest of them would get out of the business."

* * * * * *

"Q: Would you possibly yourself pull the trigger and kill someone for performing an abortion?

A: Let me put it this way: Elijah slit the throats of 450 profits sic of Al because of the evil they did, and they were not even murderers, so if Elijah could do it I suppose I could.

Q: You could kill?

A: In the defense of innocent human beings, yes."

Plaintiffs' Exh. 43, at 3, 6-7.

Dr. Lucero was not a guest on this episode of Shelly Stewart, and Fr. Trosch did not make any statements which specifically referenced Dr. Lucero during the course of his appearance on that program. Rather, if anyone was a target of much of Fr. Trosch's rhetoric on Shelly Stewart, it was Diane Derzis, M.D. ("Dr. Derzis"), a provider of abortion services who also appeared on the show. Although Fr. Trosch stated that he would have "no problem" with Dr. Derzis being killed in defense of innocent human life, he tempered his remark via the following exchange:

"Q: Father Trosch, is her life in danger because of your rhetoric?

A: It could be. It could well be, if someone locally who knows her, knows where her clinic is. From me personally, no, I do not travel around looking for problems like that, but if someone in this area finally recognized that as she says, there is a consistent life ethic from the moment of conception all the way to natural death, yes, then, she should have fear."

Plaintiffs' Exh. 43, at 2 (emphasis added).

In September or October of 1994, Dr. Lucero was invited to appear as a guest with Fr. Trosch on the Geraldo Show ("Geraldo"). He agreed to do so, and participated in a taping session which was conducted in New York, New York, on October 5, 1994.³ Dr. Lucero had not met Fr. Trosch prior to this appearance; however, he was well-acquainted with Fr. Trosch's work and beliefs. In addition to having seen the Shelly Stewart episode on which Fr. Trosch had appeared, Dr. Lucero had read a number of Fr. Trosch's writings, as well as various newspaper articles chronicling Fr. Trosch's controversial views.⁴ Despite actual knowledge of Fr. Trosch's extreme stance on the justifiable homicide issue, Dr. Lucero agreed to appear on Geraldo with Fr. Trosch. At trial, Dr. Lucero explained the purpose of his assent to the Geraldo appearance in the following manner:

"It's very difficult to stop someone that is going to go public and advocate and encourage others and kill us. And the only way to stop something like that is to try to show the public that we are human people and that we are not mean spirited people, demonic people, or evil people.... And to try to persuade public support to stop Father Trosch. It was also to give Father Trosch a chance to recant...."

Trial Transcript, at 91.

The Geraldo episode on which the parties appeared was contentious, fast-paced, and emotionally charged.⁵ Numerous other guests representing various perspectives on the "justifiable homicide" issue were present and participated in the debate. As is typical of sensationalist network daytime talk shows, the Geraldo host painted his guests as caricatures of themselves by posing pointed questions designed to spark extreme reactions from his guests, then interrupting them in mid-answer to pursue even more inflammatory lines of questioning. Fr. Trosch, in particular, rarely was permitted to answer a question fully or to complete a thought before Geraldo cut him off, and asked additional questions geared at ratcheting upward the emotional ante. Moreover, the various guests frequently interrupted each other, the result being that the proceedings lapsed into an uncontrolled shouting match on occasion.

Against this chaotic talk-show backdrop, Fr. Trosch made the following statements when questioned by Geraldo:

"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: Do you support the activities of Paul Hill, the man who killed Dr. John Britton?

A: — I rephrase that, I would approve of the killing, but it would not be murder.

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

A: — he is a mass murderer —

Q: — would you kill him?

A: He is a mass murderer and he 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."

* * * * * *

"Q: Father Trosch, man of the Cloth, how can you let Dr. Lucero walk out of this studio alive?

A: Very simply, I am presenting a problem philosophical, theological to the whole human race, and as long as I can present the question, I am more valuable to saving innocent human life than taking him out."⁶

Plaintiffs' Exh. 42, at 2, 3, 10.

Also appearing on that episode of Geraldo was Dr. Lucero's wife, Mala, ("Mrs. Lucero") who is employed at Dr. Lucero's clinic and provides counseling to Dr. Lucero's patients.⁷ In addition to his statements regarding Dr. Lucero, Fr. Trosch referred to Mrs. Lucero as a "murderess" for her role as a "direct accomplice" in providing abortions. Id. at 7. Fr. Trosch responded in the affirmative to a question posed by Geraldo as to whether Mrs. Lucero, like her husband, should die. Id.

After his experience on Geraldo, Dr. Lucero testified, he felt frightened and intimidated. To protect himself, his family, and his employees, Dr. Lucero has incurred certain security costs since his Geraldo appearance. In particular, Dr. Lucero has apparently hired security guards on an around-the-clock basis for himself, his wife, and his staff at the clinic. Moreover, he has reinforced and upgraded the security precautions which were previously in place at his clinic. These security measures were readily apparent and highly visible during the trial of this cause, as Dr. Lucero wore a bulletproof vest, appeared in the courtroom flanked by at least three uniformed security guards, and traveled to and from the courthouse in an armored van.⁸ Dr. Lucero testified that these expenses will continue to be incurred for approximately twenty years as a result of Fr. Trosch's remarks on Geraldo.

Fr. Trosch has never visited Dr. Lucero's home, nor has he ever picketed outside his clinic. There was no evidence that Fr. Trosch has contacted or attempted to contact Dr. Lucero, his family, his patients, or his staff members at any time subsequent to the airing of the Geraldo episode. Fr. Trosch and Dr. Lucero have neither corresponded nor otherwise communicated with each other since the taping of the show in October of 1994. Rather, the sole instances of direct contact between the parties...