Tompkins v. Cyr, 3-94-CV-0973-BD.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
Writing for the CourtKaplan
Citation995 F.Supp. 664
PartiesNorman T. TOMPKINS, M.D. and Carolyn Tompkins, Plaintiffs, v. Thomas CYR, et al., Defendants.
Docket NumberNo. 3-94-CV-0973-BD.,3-94-CV-0973-BD.
Decision Date07 January 1998

Windle Turley, Law Office of Windle Turley, Dallas, TX, Linda Turley, Law Office of Linda Turley, Dallas, TX, for Plaintiffs.

William Charles Bundren, Law Office of William Charles Bundren, Coppell, Kelly G. Rogers, Dallas, TX, Donovan Campbell, Jr., Rader Campbell Fisher & Pyke, Dallas, TX, for Defendants.


KAPLAN, United States Magistrate Judge.

Plaintiffs Norman T. Tompkins and Carolyn Tompkins obtained an $8.5 million verdict against eleven abortion protestors after a jury trial. Three motions remain pending before the Court: (1) defendants' renewed motion for judgment as a matter of law; (2) plaintiffs' motion for judgment on the verdict; and (3) plaintiffs' motion for injunctive relief. For the reasons stated herein, defendants' renewed motion for judgment as a matter of law and plaintiffs' motion for judgment on the verdict are granted in part and denied in part. Plaintiffs' motion for injunctive relief is granted, as modified.


Norman T. Tompkins is a medical doctor who specializes in obstetrics and gynecology. He practiced medicine at various hospitals in the Dallas area for 26 years and served on the faculty of the University of Texas Southwestern Medical School. As a small part of his practice, Dr. Tompkins performed abortions.

Defendants are individuals and organizations who vehemently oppose abortion. Thomas Cyr is the former president of Dallas Pro-Life Action League ("Dallas PLAN"). Phillip Benham is the former director of the Dallas/Fort Worth branch of Operation Rescue. Louis Farinholt is affiliated with an organization called Missionaries to the Pre-Born. The remaining defendantsRichard Blinn, Oldrich Tomanek, Ann Hollacher, Ellen Pavlich, Laura Tellier, and J.R. Dannemiller — all were involved, either formally or informally, with Dallas PLAN.

The acknowledged mission of these pro-life activists was to convince Dallas area doctors to stop providing abortion services. Toward this end, Dallas PLAN devised "Operation John the Baptist." The main thrust of this campaign was to confront doctors who performed abortions and ask them to "repent" for their "sins." Cyr drew up a statement for the doctors to sign.1 Any doctor refusing to sign this agreement would be "exposed" wherever he went until he agreed to stop performing abortions. This "exposure" took a variety of forms, discussed more fully below. Dallas PLAN compiled a list of twenty physicians to target in this manner. Dr. Tompkins was one of those doctors.

In October 1992, Cyr and Hollacher approached Dr. Tompkins in his driveway as he prepared to leave for work. Dr. Tompkins asked them to make an appointment to come to his office at Presbyterian Hospital. Soon thereafter, Dr. Tompkins met with Cyr and Hollacher. Cyr told Dr. Tompkins that he was a Christian, that he was morally opposed to abortion, and that he wanted Dr. Tompkins to conform his behavior accordingly. Cyr asked Dr. Tompkins to sign the agreement and allow Dallas PLAN to take his picture. (See Pl. Exhs. 574, 707). Cyr mentioned that he had organized a protest against Clay Alexander, another local physician, until Dr. Alexander finally agreed to stop performing abortions. Daniel Scott, who was present at the meeting, testified that Cyr threatened to "make [Dr. Tompkins'] practice go away" if he did not sign the pledge. Dr. Tompkins refused this ultimatum and the meeting ended.

Dallas PLAN made good on its threat and organized a demonstration at plaintiffs' home. Dr. Tompkins and his wife lived on the corner of Forest Lane, a busy six-lane street, and Forest Lakes, a cul-de-sac. Plaintiffs introduced a videotape of one of the pickets. (Pl.Exh. 721). It showed a group of people standing in the driveway, holding signs and chanting. Mrs. Tompkins testified that the demonstrators often amassed in this small area in front of her garage. The picketers would also "mill around" and march up and down the street. The evidence showed that the protestors held at least eight full neighborhood marches.

The first demonstration drew approximately ninety people. Thereafter, the numbers dwindled, but protestors still gathered at plaintiffs' home every Saturday morning and Sunday afternoon for at least two hours. A small group of activists appeared at the house every morning when Dr. Tompkins and his wife left for work and every evening when they returned. Several witnesses identified Tomanek, Benham, Cyr, Farinholt, Hollacher, and Tellier as some of the more frequent participants in these protests.

The protestors carried signs calling Dr. Tompkins a "murderer," "abortionist," and "tool of Satan." Other signs showed graphic pictures of dismembered fetuses. Dallas PLAN posted fliers around the neighborhood with Dr. Tompkins' picture and the words "Not Wanted" underneath. The picketers would often chant, sing, and pray during their protests. They sometimes called out to passing cars and tried to force literature on plaintiffs' neighbors as they entered or left their homes. In addition, Benham frequently used a bull-horn to preach to the crowd. However, other than a few citations for blocking traffic, the demonstrations were not violent.

The picketing was not confined to plaintiffs' residence. Dallas PLAN also organized demonstrations at Presbyterian Hospital and the Boy Scouts of America headquarters where Mrs. Tompkins worked. Several protests also were staged at Highland Park Methodist Church where plaintiffs worshiped. From October 1992 until a preliminary injunction was issued in July 1993, protestors picketed at plaintiffs' home, work, or church for at least two hours every day. Dallas PLAN established a telephone hotline and left information about the date, time, and location of the demonstrations targeted against plaintiffs.

Operation John the Baptist was not merely a picketing campaign, however. Dallas PLAN also devised a variety of other tactics to increase the pressure on Dr. Tompkins to stop performing abortions. Cyr testified that he often discussed these tactics with Benham, Farinholt, Tomanek, Hollacher, Blinn, and Tellier. Dallas PLAN published plaintiffs' address and telephone number in its newsletter and encouraged readers to contact them at least twice a week. (Pl.Exh. 558). Consequently, plaintiffs were deluged with literally hundreds of postcards and letters exhorting them to "stop the killing." (See Pl.Exhs. 575A-J, 576A-B, 587, 592, 595, 610, 613-638, 641-648, 698, 720). Some of the postcards bore a picture of plaintiffs' home, including one showing the Tompkins standing outside their residence. Dallas PLAN produced and distributed these cards. Several anonymous letters indirectly threatened plaintiffs with physical harm.2 In addition, Cyr sent a letter to plaintiffs advising them to "[m]inimize your losses." Benham, Tomanek, and Hollacher also sent letters or postcards.

Plaintiffs received numerous phone calls at all hours of the day and night. Several anonymous callers made death threats.3 Tomanek left Dr. Tompkins a message threatening to "get him." Cyr and Tomanek called so frequently that plaintiffs recognized their voices. Plaintiffs also received phone calls from Hollacher, although she recalled only placing two such calls. About one month after this telephone campaign began, Dallas PLAN's newsletter scolded its readers: "Tompkins' home phone is still in operation. That only means he is not being contacted enough about his killing." (Pl.Exh. 558).

Dallas PLAN also organized a surveillance of plaintiffs' residence.4 Several defendants parked their cars in a cul-de-sac that runs behind the house and kept a near-constant watch of plaintiffs inside their home. Cyr, Tomanek, and Farinholt all participated in this surveillance. Plaintiffs' neighbor, Linda Pennington, testified that these defendants often had binoculars and a camera with them while they sat in the car. Tomanek sent several postcards to plaintiffs indicating that he had been watching them. (Pl.Exhs. 575A, 575E, 595).

Cyr, Tomanek, Benham, and Farinholt, alone or in various combinations, routinely followed plaintiffs when they left the house. Cyr took pictures of plaintiffs' license plates for that purpose. Dr. Tompkins often knew he had been followed because he would find a Dallas PLAN pamphlet or flier under the windshield of his car. He said that he was followed nearly every time he left the garage. Mrs. Tompkins was often followed to work. On one occasion, Cyr, Tomanek, and Farinholt followed Dr. Tompkins to a restaurant. They confronted him while he was eating lunch and forced him to leave. Cyr taped this incident and it was shown to the jury. (Pl.Exh. 708). On December 11, 1992, Cyr and Tomanek followed plaintiffs as they were on their way to a party. Plaintiffs tried to elude the defendants and a high speed chase ensued. Cyr and Tomanek were stopped by the police after plaintiffs called for help on their car phone. (See Pl.Exh. 577).

Benham and Tomanek trespassed on plaintiffs' property during the pickets and at other times. Witnesses testified that Tomanek would cross plaintiffs' property line "every chance he got" to place posters on their house and gate. Tomanek disturbed plaintiffs' Thanksgiving dinner by rattling their front gate and yelling at them. On another occasion, plaintiffs returned home to find dozens of small white crosses planted in their yard. They noticed Benham sitting on their front porch.

Finally, Mrs. Tompkins had two frightening confrontations with Tomanek. On the evening of November 17, 1992, Tomanek rushed at Mrs. Tompkins as she opened the garage door to take out the garbage. H...

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6 cases
  • Peavy v. Harman, Civ.A. 3:96CV1506-R.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 18 Febrero 1999
    ...if he "participated" in an underlying tort for which the plaintiff seeks to hold at least one defendant liable. Tompkins v. Cyr, 995 F.Supp. 664, 685 (N.D.Tex.1998); Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996). "Participation" includes planning, assistance, or encouragement of anothe......
  • Ross v. Early, Civil No. JFM–09–3255.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 8 Diciembre 2010
    ...scrutiny under Madsen to a “Notice Against Trespass,” issued by court security personnel to a protester); cf. Tompkins v. Cyr, 995 F.Supp. 664, 678 (N.D.Tex.1998) (considering underlying policy concerns and determining that heightened scrutiny should not apply to common law torts because th......
  • Osterberg v. Peca, 97-1027
    • United States
    • Supreme Court of Texas
    • 8 Febrero 2000
    ...not an opposing party, who decides whether the Osterbergs acted unlawfully and thus could be subject to liability. Cf. Tompkins v. Cyr, 995 F. Supp. 664, 676-77 (N.D. Tex. 1998) (deciding whether the jury's verdict -rather than the plaintiff's motive -was content neutral). The Osterbergs do......
  • Worldwide Forest Products, Inc. v. Winston Holding Co., Civil Action No. 1:96CV178-A (N.D. Miss. 1/8/1999), Civil Action No. 1:96CV178-A.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 8 Enero 1999
    ...damages . . . [and a]ctual damages may not be presumed merely because the defendants engaged in a conspiracy." Tompkins v. Cyr, 995 F. Supp. 664, 686 (N.D. Tex. 1998) (citing Nabours v. Longview Savings & Loan Association, 700 S.W.2d 901 (Tex. 1985)). Interpreting Mississippi law, this cour......
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1 books & journal articles
  • Freedom of speech and true threats.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 25 No. 1, September 2001
    • 22 Septiembre 2001
    ...States v. Alkhabaz, 104 F.3d 1492, 1498 (6th Cir. 1997); Simpson v. Burrows, 90 F. Supp. 2d 1108, 1121 (D. Or. 2000); Tompkins v. Cyr, 995 F. Supp. 664, 673-74 (N.D. Tex. (23.) See, e.g., GREENAWALT, supra note 11, at 290 ("When direct threats to high government officials are made, extensiv......

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