U.S. v. Dinwiddie, 95-1803WM

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation76 F.3d 913
Docket NumberNo. 95-1803WM,95-1803WM
PartiesUNITED STATES of America, Appellee, v. Regina Rene DINWIDDIE, Appellant.
Decision Date09 May 1996

On Appeal from the United States District Court for the Western District of Missouri, Joseph Stevens U.S.D.C., Judge.

Michael R. Hirsh of New Haven, KY, argued (Joseph A. Morrey, St. Joseph, MO, on the brief), for appellant.

Stephen L. Hill, Asst. U.S. Atty., Kansas City, MO, argued (Alleen Castellani, Asst. U.S. Atty., on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and FAGG, Circuit Judges.


Regina Rene Dinwiddie appeals from the District Court's order finding that she violated the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 ("FACE"). The order prohibits Mrs. Dinwiddie from further violating FACE and from engaging in a number of other activities whenever she is within 500 feet of a facility that provides reproductive-health services. See United States v. Dinwiddie, 885 F.Supp. 1286 (W.D.Mo.1995). We affirm the District Court's holding that FACE is constitutional and that Mrs. Dinwiddie violated FACE, but remand to the District Court with instructions to modify the injunction.


Regina Rene Dinwiddie is an opponent of abortion who, for many years, has protested outside of Planned Parenthood of Greater Kansas City ("Planned Parenthood"), a clinic where abortions are performed. The government filed a complaint against Mrs. Dinwiddie, alleging that she violated the Freedom of Access to Clinic Entrances Act, which provides criminal and civil penalties against anyone who:

by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.

18 U.S.C. § 248(a)(1). 1 The District Court concluded that Mrs. Dinwiddie violated FACE by obstructing, using physical force against, and threatening to use physical force against a number of Planned Parenthood's patients and members of its staff.

The Court found that Mrs. Dinwiddie directed particularly pointed threats at Dr. Robert Crist, a physician who is the Medical Director of Planned Parenthood. Over a six- to eight-month period beginning in mid-1994, the defendant made approximately 50 comments to Dr. Crist, often through a bullhorn, warning "Robert, remember Dr. Gunn [a physician who was killed in 1993 by an opponent of abortion].... This could happen to you.... He is not in the world anymore.... Whoever sheds man's blood, by man his blood shall be shed...."

The District Court also determined that Mrs. Dinwiddie threatened and, on one occasion, used physical force against other members of Planned Parenthood's staff and some of its patients. On January 28, 1994, the defendant said to Patricia Brous, the Executive Director of Planned Parenthood, "Patty, you have not seen violence yet until you see what we do to you." According to Ms. Brous, whose testimony the Court found credible, "the words that have been thrown, through the bullhorn or otherwise, at staff and patients have become much more violent. There is a higher level of stress. We have had to have counselors deal with stress among the staff." On July 28, 1994, Mrs Dinwiddie physically assaulted Lenard Venable, a Maintenance Supervisor at Planned Parenthood, with an electric bullhorn. Also, she physically obstructed potential patients from entering the clinic.

Dr. Crist, Ms. Brous, and other members of Planned Parenthood's staff testified that Mrs. Dinwiddie's conduct has caused them to fear for their personal safety. Dr. Crist stated that because of his fear of the defendant, he now wears a bullet-proof vest. Planned Parenthood has responded to Mrs. Dinwiddie by placing an armed guard at its front door.

Finally, the District Court noted that Mrs. Dinwiddie is a well-known advocate of the viewpoint that it is appropriate to use lethal force to prevent a doctor from performing abortions. 2 Citing this viewpoint and Mrs. Dinwiddie's conduct towards Planned Parenthood's staff and patients, the Court determined that the defendant is likely to continue to violate FACE and is an imminent threat to public safety.

The District Court issued a permanent injunction that orders Mrs. Dinwiddie not to violate FACE and "not [to] be physically located within 500 feet of the entrance of any facility (a 'buffer zone') in the United States that provides reproductive health services as contemplated by [FACE]." 885 F.Supp. at 1296. There is an exception to this 500-foot buffer zone. Mrs. Dinwiddie may be "physically located within 500 feet of the entrance of any facility in the United States that provides reproductive health services as contemplated by [FACE] solely for the purpose of engaging in legitimate personal activity that could not be remotely construed to violate [FACE]." Ibid. The Court then provided examples of what constitutes "legitimate personal activity":

Legitimate personal activity would include, for example, activity such as: (1) acquiring routine personal health services; (2) accompanying an immediate family member who is both in need of assistance and is acquiring health services; (3) receiving personal health services in an emergency situation; (4) shopping at a retail store or pharmacy adjacent to a reproductive health facility; (5) travelling within a buffer zone while engaged in activity unrelated to any service provided by a reproductive health facility; (6) peacefully carrying a placard in a manner that would not constitute intimidation, interference, or physical obstruction; (7) peacefully distributing literature in a manner that would not constitute intimidation, interference, or physical obstruction; or (8) unamplified speaking in a manner that would not constitute intimidation, interference, physical obstruction, or violation of a local noise ordinance.

Legitimate personal activity would not include, for example, activity that: (1) is described in part III.A. [i.e. 885 F.Supp. at 1290-94] of this permanent injunction; (2) constitutes intimidation, physical obstruction, interference, force, or threats of force; (3) involves any use whatsoever of a bullhorn, megaphone, or other sound or voice amplifying device; (4) brings defendant in violation of any local noise ordinance; or (5) brings defendant in violation of laws related, but not limited, to assault, battery, trespass, harassment, vandalism, disturbing the peace, destruction of property, or unlawful possession of weapons, when such activity also has the effect of violating FACE.

Id. at 1296-97. 3

Mrs. Dinwiddie raises several arguments on appeal. First, she argues that FACE is unconstitutional. Second, Mrs. Dinwiddie asserts that she did not violate FACE. Finally, she claims that the permanent injunction is vague and overbroad.


Mrs. Dinwiddie contends that FACE is unconstitutional because Congress lacked the authority to enact FACE and because FACE violates the Free Speech Clause of the First Amendment. We hold that FACE is within Congress's commerce power and is not facially inconsistent with the First Amendment.


The Constitution grants to Congress the power "[t]o regulate Commerce ... among the several States...." U.S. Const., Art. I, § 8, cl. 3. Congress may use this commerce power: to regulate the channels of interstate commerce, to regulate or protect the instrumentalities of interstate commerce or people or things involved in interstate commerce, and to regulate conduct that has a substantial effect on interstate commerce. United States v. Lopez, --- U.S. ----, ---- - ----, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995). FACE falls within both the second and third of these categories of commerce power.


The Commerce Clause permits Congress to "protect ... persons or things in interstate commerce, even though the threat may come only from intrastate activities." Id. at ----, 115 S.Ct. at 1629. See Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971) (Congress may prohibit thefts from interstate shipments); United States v. Coombs, 12 Pet. 72, 77, 9 L.Ed. 1004 (1838) (Congress may punish conduct that "interferes with, obstructs or prevents" interstate commerce). Thus, if Planned Parenthood of Greater Kansas City, its staff, or its patients are "in interstate commerce," FACE's protection of them from Mrs. Dinwiddie's disruptive activities is a valid exercise of the commerce power.

Planned Parenthood has a number of patients and staff who do not reside in Missouri and who, therefore, engage in interstate commerce when they obtain or provide reproductive-health services. Substantial numbers of women travel across state lines to obtain reproductive-health services. S.Rep. No. 117, 103d Cong., 1st Sess. 13-14, 31 (1993); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 333, 113 S.Ct. 753, 792, 122 L.Ed.2d 34 (1993) (Stevens, J., dissenting) (between 20 and 30 per cent. of patients at a Virginia abortion clinic were from outside Virginia, and a majority of a Maryland clinic's patients were from outside Maryland); Women's Health Care Services v. Operation Rescue, 773 F.Supp. 258, 266-67 (D.Kan.1991), rev'd on other grounds, 24 F.3d 107 (10th Cir.1994) (between 8 and 10 per cent. of the patients at one Wichita, Kansas, clinic were from outside of Kansas, and 44 per cent. from another Wichita clinic were from out of state). The interstate nature of Planned Parenthood's clientele is particularly evident because Planned Parenthood is located in a metropolitan area that encompasses more than one state. Also, some of Planned Parenthood's staff are not from...

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