New York ex rel. Spitzer v. Cain

• Decision Date: 15 February 2006
• Docket Number: No. 05 Civ.9132(DLC).,05 Civ.9132(DLC).
• Citation: 418 F.Supp.2d 457
• Parties: People of the State of NEW YORK, By Eliot SPITZER, Attorney General of the State of New York, Plaintiffs, v. John CAIN and Luis Menchaca, Defendants.
• Court: U.S. District Court — Southern District of New York

418 F.Supp.2d 457

People of the State of NEW YORK, By Eliot SPITZER, Attorney General of the State of New York, Plaintiffs, v. John CAIN and Luis Menchaca, Defendants.

No. 05 Civ.9132(DLC).

United States District Court, S.D. New York.

February 15, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lisa Landau, Director, Reproductive Rights Unit, Anne Pearson, Assistant Attorney General, Office of the Attorney General, New York, NY, for the Plaintiffs.

Christopher A. Ferrara, American Catholic Lawyers Association, Inc., Rochester, NY, for the Defendants.

OPINION & ORDER

COTE, District Judge.

Plaintiffs, the People of New York, represented by their Attorney General, move for preliminary injunctive relief in a civil suit under the federal Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, the New York state analog, and the common law of nuisance. Plaintiffs claim that defendants' conduct outside the Margaret Sanger Center, a reproductive health facility in Manhattan, violates federal and state law. For the reasons more fully described below, the motion is granted in part.

The following constitutes this Court's findings of fact, based on an evaluation of all of the evidence, including witnesses' credibility, and conclusions of law. Where the defendants have given testimony that directly contradicts the facts as found by the Court, their testimony will often be described with the relevant event.

I.

A. The Center

The Margaret Sanger Center ("Center") is located on the corner of Mott and Bleecker Streets in Manhattan. Although the Center's address is 26 Bleecker Street, the entrance door actually opens on the sidewalk on the east side of Mott Street, approximately thirty feet south of the intersection.

The Bleecker Street subway exit is approximately 200 feet from the entrance to the Center. The route to the Center from the subway takes one east on Bleecker Street on a sidewalk approximately fourteen feet wide, from the west corner of Mott Street to the east corner, and then right on Mott Street. The sidewalk on Mott Street outside the entrance of the Center is thirteen feet wide.

The parties agree that the area surrounding and leading up to the entrance to the Center is filled with verbal abuse, confrontation, physical threats, and at times, physical assaults. The parties differ on who is responsible for the aggressive behavior, but they describe a scene filled with tension, brimming with anger, and infused with the expectation of imminent danger. The frequency and intensity of confrontations has increased over time, becoming particularly volatile in 2005.

B. The Defendants

Defendant John Cain ("Cain") is sixty-nine years old. He is six feet tall and estimates his weight to be 204 pounds. He taught full time in grade schools in this City's public school system until December 2002. Since then he has been teaching on a substitute basis. He began demonstrating against abortion in 1970. Cain vowed to devote himself to the pro-life cause out of his religious convictions as a Roman Catholic. Cain explains that he is "particularly motivated" to demonstrate at the Center because he is married to a black woman. He believes that 80% of the women who come to the Center for abortions are black and that abortion is a crime of genocide against black people.

Defendant Luis Menchaca ("Menchaca") is sixty-three years old. He is five feet, seven inches tall and estimates his weight to be between 180 and 190 pounds. He has gray hair and a gray beard, both ungroomed and fairly long. He served in the United States Navy from 1962 to 1966. From 1966 to 1985, he worked as a deck seaman, in boat yards, and as a messenger. He is a Roman Catholic, and has been active in the pro-life movement since 1986. Reflecting these two facets of his life, Menchaca has taken on the nickname "Lifeboat," and is frequently referred to in this way by both Cain and the escorts who volunteer at the Center.

This is not the first time that Menchaca has been accused of violating the law in the course of his protest activities. In 2002, Menchaca was convicted in a New York state court of obstructing access to a reproductive health care facility in Buffalo after he entered the facility and lay down on the floor. He testified that he spent some time in jail as a result of the conviction, but did not specify how long. He is also the subject of two permanent injunctions issued by federal courts for past violations of FACE involving other clinics. The first resulted from Menchaca's participation in a series of blockades at a clinic in Englewood, New Jersey, during which Menchaca helped to block the entrance of a clinic by either lying down or locking himself with a bicycle lock to other protestors. See United States v. Gregg, 32 F.Supp.2d 151, 153-54 (D.N.J.1998), aff'd, 226 F.3d 253 (3d Cir.2000). The second results from his obstruction of access to a medical facility in Dobbs Ferry, New York. See United States v. Menchaca, No. 96 Civ. 5305 (S.D.N.Y. Sept. 3, 1996). Menchaca recalled spending time in jail following his activities in Dobbs Ferry, but could not recall the judicial process that led to his incarceration. Evidence of these other violations of the law is admissible as evidence of Menchaca's intent and motive, and the absence of mistake or accident. Fed.R.Evid. 404(b). The strong probative value of the evidence is not substantially outweighed by any of the concerns identified in Rule 403, Fed.R.Evid.

While the two defendants undoubtedly share a passion for their anti-abortion cause, they are very different as individuals, and their differences were reflected in their demeanor as witnesses at the hearing. Menchaca is less educated, less sophisticated, and more volatile than Cain. He has trouble concentrating and absorbing information, as evidenced by his difficulty recalling and swearing to the truthfulness of Cain's affidavit, large sections of which he had explicitly incorporated into his own.¹ But when his attention is focused and he understands a question placed to him, his answers are likely to be honest. During his testimony, he conveyed his sincere desire to avoid another period of incarceration.

Cain, in contrast, is a much more deliberate and calculating individual. He was combative during questioning, and seemed as intent on making a point and advancing his cause as answering the questions truthfully. He was, as a result, much less credible as a witness.

C. General Activities at the Center

Protestors first began to appear at the Center in 2001. The two defendants began protesting there together in late 2003. Since that time, on Saturdays, and beginning in the late summer of 2004, on Thursdays, the defendants have been protesting regularly outside the Center. They arrive at approximately 7:00 a.m. While the defendants used to leave the Center by 11:00 a.m., they now stay until after noon.

The defendants work with another antiabortion advocate, Paul Morrissey ("Morrissey"). Usually, Morrissey approaches women as they emerge from the subway station on Bleecker Street. The defendants then take over from Morrissey as the women come closer to the Center. Occasionally, however, defendants walk down Bleecker to meet women exiting the subway and follow them back to the Center.

The defendants routinely post large posters by leaning the posters on lampposts, cars parked on Bleecker Street, or occasionally on the outside wall of the Center itself. They frequently place one of these signs, which they refer to as the "Baby Malachi" sign, somewhere around the southeast corner of Bleecker and Mott Streets.² Cain contends that "numerous" women who have seen the sign become upset and turn around. Overall, he estimates that 10 to 25% of pregnant women with whom the defendants interact outside the Center decide not to go through with an abortion. On one occasion Cain describes, soon after he began protesting at the Center, a woman emerged from the Center, hugged him, and said she had changed her mind because of his message. There was no independent evidence offered to substantiate any of these claims.

Most women, it seems, are less thankful for the defendants' intervention in their lives. Because of the defendants' actions, patients often enter the Center teary and upset. Others are confused, disoriented, intimidated, or angry. This is in contrast to patients' demeanor on the days when the defendants are absent. A social worker at the Center observes that patients are more nervous and emotional on the days when the defendants are present than other days.

Approximately 25% of patients arrive by car. Most cars drive down Bleecker and let patients out on the southeast corner of Bleecker and Mott. Occasionally, the cars drop off patients on Mott, just outside the Center's entrance.

The majority of the Center's patients arrive by subway. Morrissey or one of the defendants meets women at the Bleecker Street subway station, and tries to give them pamphlets. After the patient crosses Mott Street, the defendants frequently flank the patient, or if she is walking quickly, follow closely behind her, accompanying her to the Center's door. They are often just inches away from her, so that if the patient stops moving before reaching the Center, the defendants run into her from behind. As they walk alongside or behind the patient, one of the defendants will talk to her, pleading with her not to have an abortion.

Once a woman whom the defendants have approached indicates that she is not interested in the defendants' message, they increase the volume of their voices and adopt a more intimidating tone. They move closer physically to the woman and become more aggressive in their interactions. Several witnesses demonstrated in court the relative positions of the defendants to patients when they approach closely to hand out literature. A defendant stands a few inches to the side and just in front of a patient, with his body angled...