Planned Parenthood v. American Coalition, Civil No. 95-1671-JO.
| Decision Date | 18 September 1996 |
| Docket Number | Civil No. 95-1671-JO. |
| Parties | PLANNED PARENTHOOD of the COLUMBIA/WILLIAMETTE, INC.; et al., Plaintiffs, v. AMERICAN COALITION OF LIFE ACTIVISTS; et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
Stephen S. Walters, Stoel Rives, Portland, OR, Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Roger K. Evans, Legal Action for Reproductive Rights, Planned Parenthood Federation of America, Inc., New York City, for Plaintiffs.
William D. Bailey, Bailey & Wolfe, Portland, OR, David T. Daulton, Berean Law Group, P.C., Norfolk, VA, Mark Belz, Belz & Jones, P.C., St. Louis, MO, Norman L. Lindstedt, Lindstedt Buono & Gordon, Portland, OR, Michael P. Tierney, John M. McSherry, Legal Center for the Defense of Life, New York City, Chris Ferrara, American Catholic Lawyers Association, Fairfield, NJ, for Defendants.
Michael H. Simon, Andrew J. Bowman, Chin See Ming, Perkins Coie, Portland, OR, for Amicus Curiae.
Plaintiffs filed this lawsuit against Defendants,1 alleging violations of the Freedom of Access to Clinics Act of 1994 ("FACE"), 18 U.S.C.A. § 248 (1996), the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962 (1988), Oregon RICO ("ORICO"), Oregon Revised Statutes ("ORS") 166.720 (1995), and Oregon state tort law. This action is before this Court on Defendants' Motion to Dismiss Plaintiffs' Complaint (# 103, # 104, # 112), and Motion for Judgment on the pleadings (# 114).
Plaintiffs allege that the Individual Defendants formed the American Coalition of Life Activists ("ACLA") with the intention to use "harassment, intimidation and threats of violence in order to cause violent acts and to drive plaintiffs out of business." Compl. ¶ 38. ACLA causes violent acts primarily through publication of "wanted" or "unwanted" posters which mimic law enforcement posters seeking the arrest of criminals. Id. ¶ 39. Specifically, in January 1995, ACLA and the Individual Defendants released a "wanted" poster (the "Deadly Dozen List") which listed names, home addresses, and some telephone numbers of thirteen physicians, including three Plaintiffs Hern, Elizabeth Newhall, and James Newhall, who perform abortions. Id. ¶ 40-41, Ex. A.
The Deadly Dozen List states that the individuals listed are "Guilty of Crimes Against Humanity" and offers a "$5,000 Reward for information leading to arrest, conviction and revocation of license to practice medicine." Id., Ex. A. Plaintiffs claim that the Deadly Dozen List "suggests an objective that requires the capture and punishment of the individuals named in the poster." Id. ¶ 41. Moreover, Plaintiffs state that the Deadly Dozen List is reasonably perceived by Plaintiffs to be a threat of force against Plaintiffs, as demonstrated by the following: (1) Defendants made threatening statements in connection with release of the Deadly Dozen List; (2) in response to release of the Deadly Dozen List, the Federal Bureau of Investigation and United States Department of Justice offered the doctors on the Deadly Dozen List protection 24 hours a day; and (3) attacks on physicians occurred after release of similar type posters. Id. ¶ 43. Indeed, Plaintiffs' allegations show a sustained temporal pattern in which a physician is shot to death shortly after his picture appears on a "wanted" poster (Exs. C, D, and E; as alleged Id. ¶¶ 53, 55; 56, 58; and 60, 68). Exhibits A and B, like Exhibit E, the distribution of which preceded the shooting of Dr. Britton, his wife, and volunteer escort, contain the specific language "crimes against humanity." All five posters contain descriptions which specifically identify each physician.
After the Deadly Dozen List was distributed, Defendant McMillian publicly encouraged violence against abortionists on March 27, 1995:
Id. ¶ 45 (quoting Defendant McMillian). In addition, Defendant Bray sells bumper stickers that read, "`Execute Murderers-Abortionists.'" Id. (quoting Defendant Bray's Bumper Stickers). Both Defendants Crane and Ramey also sported these bumper stickers.
Furthermore, an illustration in the July 1995 issue of the Life Advocate2 depicted a pot of thick liquid on which is drawn a map of four cities where abortionists have been killed. The illustration also depicted several cans, each bearing the name of an abortionist, from which the contents were being poured into the pot. Next to the illustration is a biblical quote referring to the shedding of blood. Id. ¶ 46. Plaintiff alleges that "[t]his picture obviously is intended to be an endorsement of the prior murders and shootings of abortion providers and to cause further violence against members of the plaintiff classes."3 Id.
Finally, in August 1995, during a convention in St. Louis, Missouri, "defendants, acting in furtherance of their conspiracy, unleashed a new wave of threatening posters into interstate commerce * * * that target for violence physicians who provide abortions * * *." Id. ¶ 47-48. One of the posters targets Plaintiff Crist by including his name, home and work addresses, and his photograph. Id. ¶ 48, Ex. B. In addition, during the convention, Defendants released several posters which targeted abortion clinics. Id. ¶ 49.
To provide context to Defendants' activities, Plaintiffs also allege several violent incidents involving abortionists and clinics:
(1) in March 1993, Dr. David Gunn was murdered after his name, physical description, address, and description of his car, appeared on an "unwanted" poster, Id. ¶¶ 53-55, Ex. C;
(2) in August 1993, Dr. George Patterson was murdered after release of a "wanted" poster containing a description of himself and his car, Id. ¶¶ 56-58, Ex. D;
(3) in May 1993, after Defendant Treshman stated that "we have been assured that [Dr. Crist] will be monitored and appropriate action will be taken," a shot gun was fired several times into the children's play-room at Plaintiff Crist's home, Id. ¶¶ 59-60;
(4) in August 1993, a member of ALM shot Dr. George Tiller after the Life Advocate published several articles about him, and Defendants Bray and Stover praised the shooting, Id. ¶¶ 61-62;
(5) in July 1994, Dr. James Barrett was murdered after publication of an "unwanted" poster featuring his name, photograph, home address, work and home telephone numbers, and date of birth, Id. ¶¶ 66-68, Ex. E;
(6) in November 1994, after Defendant McMillan stated publicly, "Why would a person [assassinate] publicly, when maybe he could have done it clandestinely, with a high-powered rifle * * *," Dr. Garson Romalis was shot in the leg by a sniper with an assault rifle, Id. ¶¶ 73-74;
(7) in December 1994, after the Life Advocate noted that Dr. Britton's murder caused other abortionists to resign, a gunman killed two clinic workers at the Planned Parenthood and Preterm Abortion Clinics in Brookline, Massachusetts, as well as fired shots into the Hillcrest Clinic in Norfolk, Virginia, Id. ¶¶ 77-78.
Plaintiffs contend that "Defendants' unrelenting threats, including and in connection with the repeated distribution of `unwanted'-style posters, as noted above, has [sic] aggravated the past violence and has [sic] instilled fear in all plaintiffs that more violence is yet to come if defendants are not stopped." Id. ¶¶ 80.
Based on the above allegations, Plaintiffs assert the following seven causes of action:
(1) Defendants have conspired to violate FACE, 18 U.S.C.A. § 248(a)(1), by intending to injure, threaten and intimidate Plaintiffs through the dissemination of "unwanted"-style posters which target abortion providers like Plaintiffs who are aggrieved persons within the meaning of 18 U.S.C.A. § 248(c)(1)(a);4 (2) Defendants violated FACE, § 248(a)(1), by threatening, injuring, and intimidating Plaintiffs because they are providing "reproductive health services";
(3) Defendants, except ACLA, violated RICO, 18 U.S.C. § 1962(c), by participating and agreeing to participate in the operation or management of ACLA's affairs through a pattern of racketeering activity that involves at least two predicate acts which include publication of the Deadly Dozen List and similar oral or written publications containing threats of force against Plaintiffs;5
(4) Defendants, except ACLA, violated 18 U.S.C. § 1962(d) by conspiring to violate RICO as a result of agreeing to the commission of two or more of the predicate acts;6
(5) Defendants violated ORICO, ORS 166.720(3), for the same reasons evinced under Plaintiffs' federal RICO claims;7
(6) Defendants violated ORS 166.720(4) by conspiring to violate ORICO;8 (7) Finally, Defendants' intentional conduct transgresses the bounds of socially tolerable conduct and caused Plaintiffs to suffer emotional distress which is actionable under Oregon tort law.
Plaintiffs request a declaration that Defendants' conduct violates FACE, RICO, ORICO, and state law, and is not protected by the First Amendment of the United States Constitution. Furthermore, Plaintiffs seek an injunction preventing Defendants from continuing to violate FACE, ORICO, and any other laws by publishing the Deadly Dozen List and similar posters. In sum, Plaintiffs demand compensatory damages of at least $200 million, punitive damages of at least $300 million, and treble damages of at least $300 million.
In response to Plaintiffs' allegations, Defendants moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction, under Rule 12(b)(6) for failure to state a claim, and under Rule 12(c) for judgment on the pleadings. I examine these motions below.
On a Rule 12(b)(2) motion...
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