U.S. v. McMillan
| Decision Date | 31 March 1999 |
| Docket Number | No. Civ.A. 3:95-CV633WS.,Civ.A. 3:95-CV633WS. |
| Parties | UNITED STATES of America, Plaintiff, v. Charles Roy McMILLAN, Defendant. |
| Court | U.S. District Court — Southern District of Mississippi |
Mitzi Dease Paige, U.S. Attorney's Office, Jackson, MS, Pamela K. Chen, Margo J. Schlanger, U.S. Department of Justice, Civil Rights Division, Washington, DC, Shelley R. Jackson, U.S. Department of Justice, Special Litigation Section, Civil Rights Division, Washington, DC, for United States of America, plaintiff.
Nathan W. Kellum, Stephen M. Crampton, Brian Fahling, American Family Association Law Center, Tupelo, MS, for Charles Roy McMillan, defendant.
This case is before the court pursuant to the motion of the United States to find the defendant Charles Roy McMillan (hereinafter "McMillan") in contempt of a Consent Decree dated June 27, 1996, wherein McMillan agreed to refrain from "[u]sing force or threats of force to interfere with or intimidate employees or patients of the Jackson Women's Health Organization (hereinafter `JWHO') in violation of the Freedom of Access to Clinic Entrances Act (hereinafter `FACE') statute," Title 18 U.S.C. § 248, et seq.1
On October 10, 1996, Dawn Johnson, an employee of the New Woman's Medical Clinic (a division of JWHO), audio-taped the following phrase uttered by Roy McMillan as he stood on a stool outside the clinic: "Where's a pipebomber when you need him?" According to the United States, the utterance was made several times over a period of weeks, particularly when Dr. John Stoppel, a physician working at the New Women's Medical Clinic, would arrive at the clinic accompanied by a security guard. The United States contends that McMillan's utterance constitutes a violation of the Consent Decree. Thus, says the United States, McMillan should be held in civil contempt. Additionally, the United States contends that McMillan's conduct violates FACE. Therefore, says the United States, McMillan should be enjoined: from coming within fifty (50) feet of the New Women's Medical Clinic, within fifty (50) feet of Dr. Stoppel's house, or within thirty (30) feet of Dr. Stoppel himself or any vehicle in which Dr. Stoppel is riding; ordered to pay Dr. Stoppel $5,000.00 in compensatory damages; directed to pay the costs and other expenses of litigation; and further directed that any future violation of the Consent Decree will result in the imposition of a $1,000.00 fine.
McMillan disputes the assertions of the United States, contending that his comments were nothing more than prayerful utterances directed at no person or persons in particular. Thus, the question to be determined by this court in this proceeding is whether Roy McMillan's actions and utterances constitute a violation of the aforesaid Consent Decree for which McMillan should be held in civil contempt and/or an actionable threat under FACE.
This matter originally was brought before this court pursuant to a motion for injunctive relief brought by the United States against McMillan. This matter was heard on October 26, 27 and 30, 1995. The United States called seven (7) witnesses, most of whom are/were employees of the JWHO, seeking to show that on at least three occasions McMillan violated both the spirit and the particular provisions of FACE. The United States' witnesses testified that McMillan told clinic employees that "ya'll look like a bunch of birds on a telephone wire waiting to be shot off by a man with a shotgun." Then, according to the testimony, McMillan made his hand into the shape of a pistol by extending his index finger, lifting his thumb, and pointing at the employees as if he were shooting, and saying "pow, pow, pow, pow." Additionally, according to the United States, McMillan told a contractor, one Joseph Vestal, who was performing repairs at the JWHO clinic that he should be burning the clinic down instead. Moreover, according to the United States, McMillan asked for the contractor's name and telephone number, ostensibly to discuss the possibility of arranging for the arson of the clinic. Finally, according to the United States, McMillan committed yet another violation of FACE when he warned a patient and her escort as they were leaving the JWHO clinic that in twenty-four hours God was going to destroy the individuals who worked in the clinic. Thus, the patient was being warned not to be at the clinic the next day because the destruction was going to occur.
On December 27, 1996, this court entered its Memorandum Opinion and Order granting the injunctive relief requested. The Memorandum Opinion and Order also found FACE to be validly enacted and constitutional. While the case was pending further proceedings before this court, the parties announced that they had entered into an agreement which enjoined McMillan from violating FACE while permitting McMillan to admit no liability. By the terms of the Consent Decree, this court retains jurisdiction to ensure compliance. The United States, by and through the United States Attorney, retains power to seek enforcement and any appropriate legal remedy in the event McMillan fails to abide by the Consent Decree. McMillan agreed to refrain from uttering threats of force to intimidate employees of the clinic. Essentially, McMillan has agreed to abide by the provisions of FACE; hence, a finding of contempt in the instant case also may constitute a finding that the provisions of FACE have been violated.
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." See Title 18 U.S.C. § 248(a)(1).2 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." See Section 2 of Pub.L. 103-259.3 This statement also embodies the aim of the Consent Decree entered into between the United States and Roy McMillan on June 27, 1996. The movant in a civil contempt proceeding bears the burden of establishing by clear and convincing evidence: (1) that a court order was in effect; (2) that the order required certain conduct by the respondent; and (3) that the respondent failed to comply with the court's order. Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir.1987), cert. denied, Pennington v. McLaughlin, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988); Petroleos Mexicanos v. Crawford Enterprises., 826 F.2d 392, 401 (5th Cir. 1987); and Northside Realty Assocs. v. United States, 605 F.2d 1348, 1352 (5th Cir.1979). Thus, the provisions of the Consent Decree and FACE are intertwined in a manner that in the instant case may lead to the conclusion by the court that both have been violated.
Pursuant to the United States' motion to hold defendant Charles Roy McMillan in contempt, this court held a hearing including all of the parties on March 14, 1997. At that hearing, the United States called only two witnesses: Deputy United States Marshal Rhett W. Anthony who measured the dimensions of the New Women's Medical Clinic; and Dr. John Stoppel. Dr. Stoppel testified that McMillan shouts, "where is a pipebomber when you need one," when Dr. Stoppel arrives at and walks into the clinic. Stoppel stated that he is aware of McMillan's view regarding violence to prevent abortion — that killing a doctor who performs abortions would not be immoral. Thus, says Stoppel, he is intimidated by this utterance and perceives it as a personal threat.
Dr. Stoppel testified that he was intimidated because there have been bombings and shootings at other clinics. Stoppel compared McMillan's comment about needing a pipebomber to one saying that there is a bomb in one's luggage when boarding an aircraft — a remark that would be regarded seriously by airport authorities because bombings of aircraft do occur and are a constant threat. Dr. Stoppel also testified that McMillan was directing his remarks specifically at him, stating as follows:
Dr. Stoppel later clarified on cross-examination that McMillan's utterances caused him to fear...
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