U.S. v. McMillan

Decision Date22 November 1995
Docket NumberCivil Action No. 3:95-cv-633WS.
Citation946 F.Supp. 1254
PartiesUNITED STATES of America, Plaintiff, v. Charles Roy McMILLAN and John Doe, Defendants.
CourtU.S. District Court — Southern District of Mississippi

Stephen M. Crampton, Brian Fahling, American Family Association Law Center, Tupelo, MS, Nathan W. Kellum, American Family Association Law Center, Tupelo, MS, for defendant Charles Roy McMillan.


WINGATE, District Judge.

Before the court is plaintiff's motion for injunctive relief against the defendant Charles Roy McMillan. Submitted pursuant to Rule 65,1 Federal Rules of Civil Procedure, the United States of America, plaintiff, claims that the defendant has violated the Freedom of Access to Clinic Entrances Act (hereinafter "FACE"), Title 18 U.S.C. § 248, et seq.2 By its motion for injunctive relief, the plaintiff asks this court to find that the defendant has violated the statute and to issue a preliminary injunction prohibiting the defendant from being within twenty-five feet of the Jackson Women's Health Organization. This court has jurisdiction over this dispute under Title 28 U.S.C. § 1331.3

On the dates of October 26, 27 and 30, 1995, this court heard evidence and arguments of counsel on plaintiff's motion. Plaintiff called seven (7) witnesses, most of whom are/were employees of the Jackson Women's Health Organization ("JWHO"). Defendant called five (5) witnesses. By its evidence, plaintiff sought to show that on at least three occasions defendant has violated both the spirit and expressed strictures of FACE. According to plaintiff's proof, on May 3, 1995, McMillan, by threat of force, told clinic employees words to the effect "ya'll look like a bunch of birds on a telephone wire waiting to be shot off by a man with a shotgun." Then, McMillan made his hand into the shape of a pistol by extending his index finger and lifting his thumb, proceeded to point his finger at them, as if he were shooting, and said "Pow, pow, pow, pow." Also, according to plaintiff's proof, on May 9, 1995, McMillan, by both threat of force and an attempt to damage or destroy the clinic, told a contractor who was repairing the clinic not to fix the building but to burn it down and asked for the contractor's name and telephone number to arrange this. Finally, according to plaintiff's proof, on September 5, 1995, McMillan committed yet another violation of FACE when, by threat of force, he warned a patient and her escort as they were leaving JWHO that in twenty-four hours God was going to destroy the individuals who worked in the clinic so they should not be there when the explosion occurred.

Defendant McMillan takes issue with each of the above accusations. Indeed, portraying himself as but a peaceful demonstrator on a mission of righteousness, McMillan flatly denies the statements and conduct attributed to him by the plaintiff's witnesses.


Before ruling on plaintiff's motion for injunctive relief, this court first must address defendant's motion to dismiss which attacks the constitutional authority of the United States Congress to enact FACE pursuant to the Commerce Clause4 and Section 5 of the Fourteenth Amendment to the United States Constitution.5 Defendant claims that Congress unconstitutionally exceeded the scope of its enumerated powers under these provisions and, in so doing, transgressed the restrictions on the Congressional power found in the Tenth Amendment to the United States Constitution.6 Plaintiff takes the opposite position.


Enacted May 26, 1994, FACE prohibits, among other things, 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." Title 18 U.S.C. § 248(a)(1). The aim of FACE is:

... to protect and promote the public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive, and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services.

Section 2 of Pub.L. 103-259. The criminal penalties include fines from $10,000 to $25,000 and terms of imprisonment ranging from 18 months to 10 years. Among the civil remedies provided by FACE are temporary, preliminary and permanent injunctive relief. Title 18 U.S.C. § 248(c)(2)(B).

According to the defendant, FACE has no constitutional moorings to the Commerce Clause because, through application of the Act, Congress seeks to regulate a private activity entirely intrastate in character, without any commercial aspect, and which has no direct effect on interstate commerce. Defendant principally champions the holding in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), claiming that its limit of Congressional power under the Commerce Clause reaches to this case and these facts. In Lopez, a high school student was charged with violating the Gun-Free School Zones Act of 1990, Title 18 U.S.C. § 922(q)(1)(A), when he carried a concealed handgun into his high school. Id. at ___, 115 S.Ct. at 1626. The United States Supreme Court affirmed the finding of the United States Court of Appeals that Title 18 U.S.C. § 922(q)(1)(A) was not supported by sufficient congressional findings and legislative history. Furthermore, the Supreme Court concluded that § 922(q) did not regulate activity that substantially affected interstate commerce. Instead, the Supreme Court stated that § 922(q) was a criminal statute which, by its terms, had nothing to do with commerce or any sort of commercial activity. Id. at ___ - ___, 115 S.Ct. at 1630-31. Thus, § 922(q) was found to be invalid as beyond Congress' power under the Commerce Clause. Id.

Further, argues defendant, neither does Section 5 of the Fourteenth Amendment safely harbor the Act because Congressional authority under Section 5 of the Fourteenth Amendment is limited to protecting individuals against state action, not against wrongs done by individuals. Defendant cites United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) ("`The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' This has been the view of the Court from the beginning. It remains the Court's view today."); Murphy v. Mount Carmel High School, 543 F.2d 1189, 1193 (7th Cir.1976) (the Fourteenth Amendment erects no shield against merely private conduct, however discriminating or wrongful); and United Brotherhood of Carpenters and Joiners, Local 610 v. Scott, 463 U.S. 825, 830, 103 S.Ct. 3352, 3357, 77 L.Ed.2d 1049 (1983) (noting that plaintiff must show some state involvement to state a claim under the Fourteenth Amendment). Here, says defendant, Congress has stepped over the boundary line separating the two since FACE simply aims to regulate individual invasions of individual rights.

Plaintiff responds that in enacting FACE, Congress exercised powers at the heart of its commerce authority, namely, the powers to protect both persons and things in interstate commerce and to regulate activities that have a substantial effect on interstate commerce, citing Cheffer v. Reno, 55 F.3d 1517, 1519 (11th Cir.1995), adopting the reasoning of American Life League, Inc. v. Reno, 47 F.3d 642, 647 (4th Cir.1995). Overwhelming evidence, says plaintiff, supported Congress' findings that the conduct prohibited by FACE directly interferes with the free flow of commerce, in which patients, providers and goods used and dispensed by reproductive health care facilities travel.

Additionally, says plaintiff, the Fourteenth Amendment provides independent constitutional authority for FACE. Under Section 5, Congress is empowered to enforce the various provisions of the Fourteenth Amendment, including the rights to liberty and equal protection of the laws. Pursuant to this empowerment, argues plaintiff, Congress passed FACE to enforce protection of both the substantive right of women to obtain abortion-related health services and equal protection of the law where state officials are either unable or unwilling to provide that protection. Accordingly, concludes plaintiff, the enactment of FACE was a valid exercise of Congress' authority under Section 5 of the Fourteenth Amendment, relying upon District of Columbia v. Carter, 409 U.S. 418, 423 n. 8, 93 S.Ct. 602, 606 n. 8, 34 L.Ed.2d 613 (1973); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).


"[I]n passing on a motion to dismiss, whether on grounds of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992). Furthermore, the court should accept as true the factual allegations of the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, et al., 42 F.3d 925, 931 (5th Cir. 1995), citing Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994). Finally, "a complaint should not be dismissed ... unless it appears beyond a reasonable doubt that the plaintiff can prove no set of...

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