U.S. v. Burke
| Decision Date | 31 July 1998 |
| Docket Number | No. 98-2319-JWL.,98-2319-JWL. |
| Citation | 15 F.Supp.2d 1090 |
| Parties | UNITED STATES of America, Plaintiff, v. Thomas J. BURKE, Defendant. |
| Court | U.S. District Court — District of Kansas |
Melanie D. Caro, Office of United States Attorney, Kansas City, KS, for U.S.
Thomas J. Burke, Kansas City, KS, pro se.
The United States of America brought this action seeking a permanent injunction against Thomas J. Burke pursuant to the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, which authorizes suits for injunctive relief by the Attorney General of the United States. 18 U.S.C. § 248(c)(2). Plaintiff seeks to enjoin certain activity by Mr. Burke, an abortion protester, at Comprehensive Health of Planned Parenthood (CHPP), an Overland Park clinic providing reproductive health services.
After an initial hearing held on July 17, 1998, the court granted plaintiff's motion for a preliminary injunction. A hearing on the merits was held on July 30, 1998.1 This Memorandum and Order constitutes the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). After considering all of the evidence, as well as the arguments of both parties, the court enters judgment for plaintiff as set forth in more detail below.
From 1981 to April 1997, Comprehensive Health for Women (CHW) was a privately owned and operated reproductive health care center, located at 4401 W. 109th Street, Overland Park, Kansas. In April 1997, CHW was acquired by Planned Parenthood of Mid-Missouri and Eastern Kansas. The clinic is now known as Comprehensive Health of Planned Parenthood (CHPP). CHPP provides, as did CHW before it, both family planning and surgical services. CHPP's family planning services include gynecological examinations, Pap tests, birth control, pregnancy testing and counseling, emergency contraception, HIV testing, testing and treatment of sexually transmitted infections, and menopausal services. Surgical services include abortion services (up to 24 weeks), tubal ligation, cryotherapy, and colposcopy.
CHPP is located in a two-story building situated in a complex of other office buildings. There is a driveway entrance on the northwest side of the building which leads to a parking lot on the south side of the building. There is a second entrance to the parking lot on the southeast side of the building. The clinic has one public entrance on the south side of the building. This entrance can be reached by crossing the parking lot then walking down the sidewalk to the door. The door to this entrance is kept locked and visitors are admitted by a security guard.
Maureen Casey has been employed by CHPP or its predecessor, CHW, since March of 1981. From 1987 to May of 1997, she held the position of Security Director. She currently works part-time at the clinic as a receptionist. Ms. Casey has encountered Mr. Burke on numerous occasions over the course of her employment at the clinic and testified at some length with respect to Mr. Burke's conduct at the clinic.
According to Ms. Casey, Mr. Burke interfered with reproductive care at CHW on numerous occasions. On December 16, 1989, Mr. Burke was among a group of protesters arrested and charged with criminal trespass for blocking the main entrance to the clinic. Mr. Burke and the other protesters were standing in front of the main door with their arms locked together, preventing people from entering the clinic.
On January 18, 1992, Mr. Burke entered CHW, threw a wall-mounted television to the floor and physically attacked three female employees, including Ms. Casey and the receptionist. Ms. Casey testified that Mr. Burke hit her "hard" in the face and hit the receptionist several times, breaking her jaw.2 Several men in the waiting area eventually restrained Mr. Burke and took him outside until the police arrived. Mr. Burke was arrested for battery and criminal property damage. Although Ms. Casey filed a complaint against Mr. Burke with the Overland Park Police, the Johnson County District Attorney declined prosecution for lack of evidence and Mr. Burke was subsequently released.
On August 28, 1993, Mr. Burke approached cars in the parking lot of CHW and told the patients inside the cars that "what they were doing was wrong." He refused to leave the property when asked and was arrested and charged with criminal trespass. After Ms. Casey filed a complaint with the Overland Park Police, Mr. Burke was convicted and sentenced to six months in jail.
On February 26, 1994, Mr. Burke was arrested at CHW and charged with criminal trespass after blocking the front door to the clinic, preventing a patient and her escort from entering, and refusing to leave the property. Mr. Burke was subsequently found guilty and sentenced to six months in jail.
On June 10, 1995, Mr. Burke blocked the clinic entrance by sitting on a bench in front of the door and refused to leave when asked by security. When a car arrived with patients, Mr. Burke started to approach the car. The security guard blocked his way and Mr. Burke tried to go around him. When the security guard placed Mr. Burke in an arm lock and started walking him off the property, Mr. Burke fell limp. Mr. Burke was arrested by the Overland Park Police for criminal trespass and Ms. Casey filed a complaint against him. Mr. Burke was subsequently found guilty of the offense and sentenced to four months in jail.
On December 16, 1995, Mr. Burke stood at the front door of the facility and refused to allow personnel out of the clinic. Ms. Casey told Mr. Burke that he had to leave the premises. In response, Mr. Burke told Ms. Casey that she should "stop killing babies; this may be your last chance." Ms. Casey advised him a second time to leave the premises. Again, Mr. Burke replied "This may be your last chance to stop, God is getting tired of it, and this may be your last chance." According to Ms. Casey, she felt threatened by Mr. Burke's statements and believed that he was capable of inflicting physical harm. Mr. Burke was subsequently arrested for criminal trespass, found guilty of the offense, and sentenced to six months in jail.
On June 22, 1996, Mr. Burke sat on the ground with his back against the front door of CHW and refused to move. Ms. Casey asked Mr. Burke to leave the premises and he refused. She then notified the Overland Park Police, who arrived shortly thereafter. The police asked Mr. Burke to move and not block the door. He refused to cooperate and the police had to physically remove Mr. Burke from the premises. After Ms. Casey filed a complaint, Mr. Burke was found guilty of criminal trespass and sentenced to six months in jail.
On September 10, 1996, CHW received a letter from "Brother Martin Francis," a common alias used by Mr. Burke. The letter was addressed to the clinic's doctors, Ms. Casey, and all other employees of the "Fox Hill Murder Mill." Due to its suspicious nature, Ms. Casey called the Overland Park Police. When the police arrived, the letter was opened by personnel. The letter stated: The letter was signed by Mr. Burke. Ms. Casey told the police she believed Mr. Burke would carry out his threat due to his past history of criminal behavior towards the employees of CHW.
On January 11, 1997, Mr. Burke blocked the entrance to CHW with his body and refused to allow anyone to enter or exit the facility. After being asked to leave four times by Tom Bradley, a security guard, Mr. Burke laid down on the sidewalk in front of the door to block the entrance. Ms. Casey testified that a woman and her escort came to the door and had to walk around Mr Burke to enter. The woman had tears in her eyes and appeared very upset.
James Ho, a police officer with the Overland Park Police Department, testified that when he arrived at the clinic, he observed Mr. Burke on the sidewalk in front of the clinic door with his hands handcuffed behind him. When Officer Ho asked Mr. Burke to stand up and walk to the patrol car, Mr. Burke refused. At that point, Officer Ho, Officer Lacey (another officer with the Overland Park Police Department who had arrived at the facility) and Mr. Bradley picked up Mr. Burke, carried him to the patrol car, and placed him inside.
Officer Ho proceeded to transport Mr. Burke to the police department. After advising Mr. Burke of his Miranda rights and receiving Mr. Burke's waiver of those rights, Officer Ho asked Mr. Burke whether it was his intention to block the front door of CHW in an effort to prevent people from entering and existing the facility. Mr. Burke replied, "Yes." Officer Ho asked him whether Mr. Bradley had asked Mr. Burke to leave the premises. Mr. Burke replied, "Yes," and acknowledged that he did not leave the premises when asked. Finally, Officer Ho asked Mr. Burke to relate what happened after Mr. Bradley asked him to leave the premises. Mr. Burke stated, "I laid down in front of the door to block the entrance." Mr. Burke was charged with criminal trespass, subsequently found guilty of the offense, and sentenced to six months in jail.
While Mr. Burke was incarcerated for this incident, Federal Bureau of Investigation (FBI) Special Agent Tony E. Triplett interviewed Mr. Burke in connection with the FBI's responsibilities to investigate possible violations of FACE.3 During the interview, Mr. Burke told Special Agent Triplett that he was familiar with FACE and was aware that he had violated the Act in the past. Mr. Burke further advised Special Agent Triplett that he "would follow the laws of God and not the laws of men." Finally, Mr. Burke informed Special Agent Triplett that he intended to violate the Act again.
On January 17, 1998, Mr. Burke again appeared at CHPP. Carl Trober, a security guard at CHPP, testified to the following events....
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...demonstrate a likelihood of success in proving that FACE violations will occur, irreparable harm is presumed. United States v. Burke, 15 F. Supp. 2d 1090, 1095 (D. Kan. 1998) ("the evidence presented here clearly establishes that [defendant] engaged in conduct prohibited by FACE on numerous......