U.S. v. Vazquez, Docket No. 97-6140

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtCALABRESI
Citation145 F.3d 74
PartiesUNITED STATES of America and State of Connecticut, as parens patriae, Plaintiffs-Appellees, v. Carmen E.F. VAZQUEZ, Defendant-Appellant, Stanley G. Scott and Bobby J. Riley, Defendants.
Decision Date12 May 1998
Docket NumberDocket No. 97-6140

Page 74

145 F.3d 74
UNITED STATES of America and State of Connecticut, as parens
patriae, Plaintiffs-Appellees,
v.
Carmen E.F. VAZQUEZ, Defendant-Appellant,
Stanley G. Scott and Bobby J. Riley, Defendants.
Docket No. 97-6140.
United States Court of Appeals,
Second Circuit.
Argued March 23, 1998.
Decided May 12, 1998.

Page 77

Brian Fahling, American Family Association Law Center, Tupelo, MS (Bruce W. Green and Stephen M. Crampton, American Family Association Law Center, Tupelo, MS; Claudia Rich Hojnowski, Plantsville, CT, on the brief), for Defendant-Appellant.

Jennifer C. Jaff, Assistant Attorney General, Hartford, CT (Richard Blumenthal, Attorney General, State of Connecticut; Isabel Katz Pinzler, Acting Ass't Attorney General; John H. Durham, United States Attorney; Sharon E. Jaffe, Assistant U.S. Attorney, Bridgeport, CT, on the brief), for Plaintiffs-Appellees.

Before: FEINBERG and CALABRESI, Circuit Judges, and SEYBERT, District Judge. *

CALABRESI, Circuit Judge:

In a suit arising under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 ("FACE"), defendant Carmen E.F. Vazquez appeals from a judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge ) dismissing her counterclaims for violation of her constitutional rights. In addition, Vazquez challenges the district court's order sealing a portion of the record and preventing her from disseminating certain videotapes. We affirm as to the counterclaims and remand for further proceedings with respect to the videotape order.

I. FACTS AND PROCEDURAL HISTORY

A. Claims and Counterclaims

This case began when the United States and the State of Connecticut jointly filed a civil suit, alleging that the defendants (Vazquez, Stanley G. Scott, and Bobby Riley) had violated FACE in the course of conducting anti-abortion protests outside a clinic in Bridgeport, Connecticut. The plaintiffs sought an injunction prohibiting the defendants from physically obstructing patients who wanted to enter the clinic and from otherwise acting in contravention of FACE.

In her answer to the complaint, Vazquez raised several affirmative defenses, most centering on the First Amendment. Specifically, she argued that her protest activities were constitutionally protected speech, that FACE was unconstitutionally vague as applied to her, and that she had been selectively prosecuted for exercising her free speech rights. She further argued that the court lacked subject matter jurisdiction over the plaintiffs' claims because the joint prosecution by the United States and Connecticut violated the dual sovereignty doctrine and the Guarantee Clause, art IV, § 4 of the Constitution.

In addition, Vazquez asserted various counterclaims, alleging that the plaintiffs had violated her rights under 42 U.S.C. § 1983 and the First, Fifth, and Fourteenth Amendments to the Constitution. In her prayer for relief, Vazquez requested: (a) the dismissal

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of the plaintiffs' complaint; (b) a finding that the plaintiffs' application of FACE to her actions would be unconstitutional; (c) that the plaintiffs be permanently enjoined from applying FACE to her "speech-related" activities; and (d) attorney's fees pursuant to 42 U.S.C. § 1988(b).

The plaintiffs moved before trial to dismiss the counterclaims pursuant to Federal Rule of Civil Procedure 12 for lack of subject matter jurisdiction, insufficiency of service of process, and failure to state a claim. The magistrate judge to whom the motion had been referred (Holly B. Fitzsimmons, Magistrate Judge ) recommended dismissal of the counterclaims for lack of jurisdiction and for failure to state a claim, and the district court adopted her recommendation in a pretrial order.

The litigation proceeded, with each of the parties amending their pleadings. After a nine-day bench trial on the plaintiffs' claims, the district court ruled in favor of Vazquez. 1 See United States v. Scott, 958 F.Supp. 761, 776-77 (D.Conn.1997). The court expressly ruled that her behavior was protected by the First Amendment and did not violate FACE. It held that the evidence--including videotaped clips of encounters between Vazquez and clinic patients--demonstrated that Vazquez had been engaging in protected speech rather than obstructive conduct. Specifically, the court stated

[I]n recognition of Vazquez's First Amendment right to leaflet and comment on matters of public concern, a right that receives the utmost protection when exercised on public sidewalks, the court concludes that Vazquez has not violated FACE.

This conclusion is not, nor should it be construed as, a ratification of Vazquez's view or methods of protest. In fact, the court notes that Vazquez has, on occasion, engaged in conduct which bordered on a violation of FACE. If Vazquez, independently or in response to this ruling, should heighten the level of her activity and render passage by clinic escorts or clients any more difficult than it already is, the court may, in a future proceeding, find that her conduct violates the provisions of FACE.

Id. at 777 (citation omitted).

B. Videotape Order

In the months before this lawsuit was filed, both the plaintiffs and the defendants videotaped encounters between the protestors and clinic visitors. During the course of the litigation, many of these videotapes were exchanged in discovery, and some were introduced at trial.

The plaintiffs were concerned that dissemination of these videotapes to the public could lead to harmful repercussions for the women shown entering the clinic, and therefore requested that the court prevent such public disclosure. In an order affirmed by Judge Nevas, the magistrate judge noted that the plaintiffs' request for an order prohibiting the reproduction and dissemination of "all videotapes in this action" was extremely broad and "could be construed as covering materials not exchanged during the course of discovery in this action." The court therefore entered a "temporary" order that only extended to the videotape material that was exchanged in discovery and that depicted patients entering and exiting the clinic. The order required the parties to seek the court's permission before disseminating these videotapes, and to inform the court of any individuals to whom the videos had already been given. The court then asked for further briefing on the issue of dissemination of the videotapes after trial.

In response to the trial court's request for further briefing on the appropriate scope of a permanent, post-trial order, the plaintiffs filed a supplemental brief. Defendant Vazquez did not. The district court did not subsequently revisit the issue or enter a permanent order. As far as we can discern, the court's original order remains in place.

Page 79

II. DISCUSSION

Vazquez appeals, challenging the dismissal of her counterclaims and the order sealing the videos. Before we reach the merits of Vazquez's arguments, we must address a number of procedural arguments advanced by the plaintiffs.

A. Vazquez's Counterclaims

1. Procedural Bars

a. Is Vazquez "Aggrieved" by the District Court's Judgment?

The plaintiffs argue that Vazquez received all the relief she wanted when the district court found in her favor on the plaintiffs' FACE claims. They therefore contend that she is not "aggrieved" by the district court's decision and cannot appeal from it. See, e.g., Spencer v. Casavilla, 44 F.3d 74, 78 (2d Cir.1994) ("A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.") (internal quotation marks and citation omitted). Vazquez responds that the lower court's judgment in her favor "simply established that the Governments failed to prove that she violated FACE at discrete points in the past." Such a ruling, she claims, does nothing to protect her against "future schizophrenic and unconstitutional restrictions and applications of FACE by the Governments."

Moreover, in her counterclaims, Vazquez had requested that the district court "[p]ermanently enjoin Plaintiffs from applying FACE to [her] speech-related activities...." And she did not get this relief. The district court's opinion, in fact, suggested that

Vazquez has, on occasion, engaged in conduct which bordered on a violation of FACE. If Vazquez, independently or in response to this ruling, should heighten the level of her activity and render passage by clinic escorts or clients any more difficult than it already is, the court may, in a future proceeding, find that her conduct violates the provisions of FACE.

Scott, 958 F.Supp. at 777. Accordingly, we hold that Vazquez was sufficiently aggrieved by the district court's dismissal of her First Amendment counterclaim to permit her to bring an appeal. 2

b. Was Vazquez's Notice of Appeal Defective?

The plaintiffs also argue that Vazquez's notice of appeal was defective. Vazquez's counterclaims were dismissed in a pre-trial order entered on December 24, 1996. In her answer to the plaintiffs' amended complaint, filed in January 1997, she restated all of her counterclaims. Based on its earlier ruling, the district court struck her attempt to resurrect the counterclaims on February 20, 1997. In her notice of appeal, Vazquez stated that she was appealing from this February order. The plaintiffs argue that, in challenging the February 20 ruling, Vazquez cannot attack the underlying December 24 opinion. This argument is without merit. It is clear that Vazquez was trying to appeal the dismissal of her counterclaims, and she appropriately appealed from the final order disposing of them. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir.1995) (notices of appeal are to be construed liberally, taking the parties' intentions into account).

c. Does Sovereign Immunity Shield the United States from this Suit?

The United States contends that the claims against it should be dismissed because of sovereign...

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