People v. Operation Rescue National

Decision Date01 August 2000
Docket NumberDEFENDANTS-COUNTER-CLAIMANTS,DEFENDANTS-COUNTER-DEFENDANTS,Docket Nos. 00-9076,LAMANTAIN-LEATHERMA,PRO-CHOICE,ROSINA,PLAINTIFFS-COUNTER-DEFENDANTS-APPELLEES,CHRISTIAN-AMERICAN,DEFENDANTS-COUNTER-CLAIMANTS-APPELLANTS
CourtU.S. Court of Appeals — Second Circuit
Parties(2nd Cir. 2001) PEOPLE OF THE STATE OF NEW YORK, BY ELIOT SPITZER ATTORNEY GENERAL OF THE STATE OF NEW YORK, BUFFALO GYN WOMENSERVICES, SHALOM PRESS, M.D., PLANNED PARENTHOOD, OF THE ROCHESTER/SYRACUSE REGION,NETWORK, OF WESTERN NEW YORK AND MORRIS WORTMAN, M.D.,, v. OPERATION RESCUE NATIONAL, LAMBS OF CHRIST,FAMILY LIFE ASSOCIATION, PHILIP BENHAM, A/K/A "FLIP", NORMAN WESLIN, NORMAN CRAWFORD, RICHARD ARMENIA, MARY ARNO, JOHN BLANCHARD, PAUL ARNO, JOHN BARRON, ALBERT BOETTCHER, EVA BOLDT, MARTIN CHABERLAIN, KEN DELOZIER, AMY DORSCHEID, ROBERT DORSCHEID, DANIEL DRURY, DARREN DRZYMALA, ALAN FRICKE, AMY FRICKE, JAMES GOVOLA, MARY SUE GOVOLA, KENNETH HARMS, MICHAEL ILUZZI, KAREN JACKSON, ERIC JOHNS, BERNICE KLEINHAMMER, PAUL KOEHN, RICHARD KRULEWICZ, DANIELLOTEMPIO, EDMUND LUTZ, DENNIS MARRIOTT, DENNIS MARRIOTT, DAVID MARTIN, ARNOLD MATHESON, MICHAEL MCBRIDE, WILLIAM MICHAEL, JAMES MISSALL, MICHAEL MOMBREA, DWIGHT MONAGAN, JACOB MEULLER, SHARON MURPHY, LINDA PALM, HETTIE PASCOE, ROBERT POKALSKY, DAN PRZYWUSKI, ROBERT RACO, JACQUELINE RADEMACHER, RENE RIDDLE, W. RANDOLPH SMITH, WILLIAM SMITH, SHERRIE STERLACE, ROSEANNE SUTTER, GERALD SUTTER, JOHN URGO, JOHN VANDEVEN, MICKEY VANDEVEN, NANCY WALKER, PHYLLIS WALKER, CALVIN ZASTROW, JOHN AND JANE DOES, THE LAST TWO NAMED BEING FICTITIOUS NAMES, THE REAL NAMES OF SUCH PERSONS BEING CURRENTLY UNKNOWN BUT WHO ARE ACTIVE IN DEFENDANT ORGANIZATIONS OR ACT IN CONCERT WITH THE ABOVE NAMED INDIVIDUALS TO ENGAGE IN, OR WHO WILL ENGAGE IN, THE CONDUCT COMPLAINED OF HEREIN,, RESCUE ROCHESTER, MARY BETH POWLEY, LAST CALL MINISTRIES, BOB BEHN, BONNIE BEHN AND GERALD CRAWFORD,, MICHAEL WARREN AND MARY MELFI,-APPELLANTS. (L), 00-9188(Con)

Appeal from the entry of a preliminary injunction by the United States District Court for the Western District of New York (Richard J. Arcara, Judge), prohibiting protests within fifteen feet of entrances and driveways to facilities providing reproductive health services in the Western District, imposing larger no-protest buffer zones at two particular facilities, eliminating an exception that permitted two "sidewalk counselors" to enter those buffer zones, and banning the use of sound amplification equipment at protests near all health facilities providing reproductive health services in the Western District.

Affirmed in part; vacated in part, and remanded for further proceedings. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Vincent P. McCarthy, American Center for Law and Justice Northeast, Inc., New Milford, Ct, for Appellant Michael Warren.

Christopher A. Ferrara, American Catholic Lawyers Association, Inc., Ramsey, Nj, for Appellant Mary Melfi.

Jennifer K. Brown, Assistant Attorney General, New York, NY (Eliot Spitzer, Attorney General of New York, of counsel), for Appellee People of the State of New York.

Lucinda M. Finley, State University of New York at Buffalo, Buffalo, Ny, for Appellees Buffalo Gyn Womenservices, Inc., Shalom Press, M.D., Planned Parenthood of the Rochester/Syracuse Region, Pro-Choice Network of Western New York, and Morris Wortman, M.D.

Before: McLaughlin, Parker, and Straub, Circuit Judges.

Straub, Circuit Judge.

Defendants-Appellants Mary Melfi and Rev. Michael Warren appeal from a preliminary injunction entered in the United States District Court for the Western District of New York (Richard J. Arcara, Judge) which, inter alia, imposes no-protest "buffer zones" at a broad range of health care facilities that offer reproductive health services in the Western District of New York, provides for expanded zones at two particular clinics in the Western District of New York, modifies the zones to eliminate exceptions for "sidewalk counselors," and prohibits the use of sound amplification systems at protests near all covered facilities. The plaintiffs charged Melfi and Warren with violating the Freedom of Access to Clinic Entrances Act, as well as state laws prohibiting trespass and public nuisance. Melfi and Warren, the only defendants pursuing this appeal, are pro-life activists who claim that they have not violated any of those laws and that even if they had, the injunction violates their First Amendment rights to free speech.

Regarding liability, we hold that Melfi's conduct likely constituted a violation of F.A.C.E., and justified preliminary injunctive relief against her. The record against Warren, however, is considerably weaker. We vacate the injunction against him, but remand for additional proceedings concerning Warren's actions in violation of an earlier temporary restraining order. Turning to the constitutionality of the injunction against Melfi, we hold that the provision of the injunction that expands the buffer zones beyond fifteen feet at two clinics is unconstitutional, but we otherwise uphold the buffer zone provisions, including the elimination of the "sidewalk-counselor" exception and some other slight modifications. We vacate the provision that bans Melfi from using sound amplification equipment at protests near covered health facilities and remand for additional findings and refinement.

BACKGROUND

Plaintiffs-Appellees include the State of New York, Drs. Shalom Press and Morris Wortman, and reproductive health facilities Buffalo Gyn Womenservices ("BGW") and Planned Parenthood of the Rochester/Syracuse Region ("PPR"). Together, they seek injunctive relief regulating the conduct of protests outside of reproductive health facilities in the Western District of New York. Defendants Melfi and Warren, active pro-life protestors, appeal from the District Court Order granting a preliminary injunction, on the grounds that (1) they have violated no law justifying injunctive relief and (2) the injunction infringes their First Amendment free speech rights.

The Western District of New York has been the site of ongoing anti-abortion protests going back at least a decade. On February 14, 1992, the District Court issued an injunction ("1992 Injunction") that set the legal and factual background of the current case, and familiarity with the related decisions is assumed.1 Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F. Supp. 1417 (W.D.N.Y. 1992), aff'd in part & rev'd in part, 67 F.3d 359 (2d Cir. 1994), aff'd in banc, 67 F.3d 377 (2d Cir. 1995), aff'd in part and rev'd in part sub nom. Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997). The salient provision of the earlier injunction established a fifteen-foot buffer zone outside the entrances and driveways of facilities that perform abortions in the Western District of New York. The 1992 Injunction included a "sidewalk-counselor" exception that permitted two protestors to enter the buffer zones and approach patients entering or leaving the facilities for the purpose of "sidewalk counseling consisting of conversation of a non-threatening nature." The District Court issued the 1992 Injunction in anticipation of the perceived threat of mass disturbances at abortion facilities resulting from the "Spring of Life" protest, a planned mass demonstration scheduled for April of that year.

Between the issuance of the 1992 Injunction and the initiation of this action, protest activities at reproductive health facilities in the Western District of New York continued on a regular basis, but with less intensity. In October 1998, those activities promised to take a serious turn: members of the pro-life protest movement, including some of the defendants in this action, announced "Operation Save America"-a large scale protest in Buffalo and Rochester planned for April 18-25, 1999, and purportedly modeled after the 1992 "Spring of Life" protests. In anticipation of the planned protest, the plaintiffs brought this action on March 22, 1999, seeking a temporary restraining order and a preliminary injunction. The plaintiffs asserted violations of the Freedom of Access to Clinic Entrances Act of 1994 ("F.A.C.E."), 18 U.S.C. § 248, and state law claims of nuisance and trespass.

On April 15, 1999, after a four-day hearing, the District Court granted a temporary restraining order ("T.R.O.") to protect access to reproductive health care facilities. The planned protests occurred, the T.R.O. was enforced, and the plaintiffs' facilities were not disrupted. Unlike the 1992 "Spring of Life" demonstration, which involved thousands of protestors and widespread clinic blockades, "Operation Save America" drew only about one hundred protestors and, apparently, no blockades.

The plaintiffs subsequently sought to convert the T.R.O. into a preliminary injunction. During an extensive twenty-three-day hearing, the District Court received evidence which it described as, for the most part, "uncontested" and "overwhelming." The District Court found that the defendants repeatedly interfered with access to reproductive health facilities in violation of F.A.C.E. and also created significant public safety hazards amounting to a public nuisance and trespass pursuant to New York law.

The District Court determined that the protestors likely violated F.A.C.E. by threatening violence, engaging in minor acts of violence, and imposing a "constructive obstruction" that amounted to physical obstruction. The threats included directed warnings of impending death and violence. The protestors physically obstructed clinic entrances by "crowding" patients and their escorts as they enter and exit clinics and by walking very slowly in front of driveways. The crowding sometimes caused approaching individuals...

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