U.S. v. Wilson

• Decision Date: 06 August 1998
• Docket Number: Nos. 97-2904,97-2946,s. 97-2904
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George L. WILSON and Colin L. Hudson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 658

154 F.3d 658

UNITED STATES of America, Plaintiff-Appellee, v. George L. WILSON and Colin L. Hudson, Defendants-Appellants.

Nos. 97-2904, 97-2946.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1998.

Decided Aug. 6, 1998.

Eric J. Klumb (argued), Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Thomas M. Barrett (argued), Wauwatosa, WI, for Defendant-Appellant Wilson.

James R. Donohoo (argued), Milwaukee, WI, for Defendant-Appellant Hudson.

Before CUMMINGS, KANNE and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

Defendants George Lyman Wilson and Colin Lester Hudson appeal from their convictions for violating the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 ("FACE"), raising a facial challenge to the Act's constitutionality. Specifically, defendants claim that FACE violates their First Amendment right of freedom of speech by deterring the expression of a particular point of view and their right of freedom of association. They further allege that their convictions for conspiring to engage in conduct prohibited by FACE violate the First Amendment. In addition, defendant Hudson claims that the district court abused its discretion in requiring him to participate in a mental health program as a condition of his supervised release.

Based on this Court's decision in United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), certiorari denied, --- U.S. ----, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996), and the Supreme Court's decision in Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), we sustain the constitutionality of FACE and affirm defendants' convictions. We also find that the district court did not abuse its discretion in requiring defendant Hudson to participate in a mental health program as a condition of his supervised release.

I. Facts

Defendants are abortion protestors. On September 20, 1996, defendants blockaded the two entrances to the Wisconsin Women's Health Care Center ("the Clinic") in Milwaukee. The Clinic is in the business of providing reproductive health care services, including abortions.

In order to block the entrances, defendants encased themselves in cars, defendant Hudson in a brown Buick at the front entrance and defendant Wilson in a dark blue Oldsmobile at the rear. Specifically, defendants sat on the ground underneath the cars with their bodies extending upright into the cars through holes cut in the floor. The defendants, facing the rear of the cars, were restrained by two I-beams sandwiched together with a circle cut out around each defendant's neck. The I-beams were fastened together by a slide bolt mechanism and were filled with different sizes of pipe in order to conceal the release mechanism. ¹ Signs and flyers in the area and on the cars contained the following warnings:

As soon as it is clear that no babies will be murdered in this building today, arrangements will be made for their release * * *. Please do not recklessly endanger the lives of the persons in these vehicles for the purposes of opening a building where preborn babies will be brutally murdered.

I have made arrangements to be released at the end of the day, when the killing center is closed. Any attempts to free me from this device would needlessly endanger my life, and cause certain death for as many as 20 children.

When a receptionist for the dental office located in the building arrived at 7:45 a.m., she saw a tan-colored car situated in front of the main entrance to the office building. She called the police and did not attempt to enter the building. At 8:00 a.m., Maureen Taylor, a counselor at the Clinic, arrived for work, and patients with appointments at the Clinic began to arrive shortly thereafter. Patients were scheduled to be seen beginning at 8:30 a.m. The Clinic could be entered in only two ways: a main entrance and a rear exit. The car occupied by defendant Wilson completely obstructed the rear entrance. The car situated at the front entrance, however, had not been placed directly against the front door but rather was placed at an angle with its right-front corner wedged up against the bricks that extended out into the vestibule, leaving an opening on the left side of the car. Thus individuals could enter the building if they turned sideways and squeezed past the car.

Between 9:00 and 9:30 a.m., officers from the Milwaukee Police Department arrived at the scene followed by firefighters, and at 9:45 a.m., the first patients entered the Clinic. The fire department, unable to tow the cars for fear of injuring defendants, spent approximately four hours in order to extricate defendants from the cars. ² As firemen were working, several abortion opponents engaged in protest and sidewalk counseling in front of the Clinic.

On October 1, 1996, defendants were charged with using physical obstruction to intentionally intimidate and interfere with persons because they were trying to provide or obtain reproductive health services under 18 U.S.C. § 248. On November 19, 1996, a conspiracy charge under 18 U.S.C. § 371 was added, charging defendants with conspiracy to commit a violation of 18 U.S.C. § 248. The government sought to include a conspiracy charge because under the substantive count, proof of an actual "physical obstruction" was required, whereas under the conspiracy charge, all that was required was proof that the defendants intended such an obstruction, whether or not successful. On April 24, 1997, a jury convicted defendants on all counts. Defendant Wilson was sentenced to 120 days in prison and ordered to pay a fine of $1,500 and restitution of $454.97. Defendant Hudson was sentenced to 24 months in prison and ordered to pay a fine of $3,000 and restitution of $454.97. The court also imposed upon defendant Hudson a three-year term of supervised release, beginning upon his release from prison. As a special condition of his supervised release, the court ordered Hudson to "participate in a mental health treatment program and * * * take any and all prescribed medications as may be directed by the treatment provider and participate in any psychological and/or psychiatric evaluations and counseling as may be directed by [his] supervising probation officer." Defendants appeal. We affirm.

II. Freedom of Access to Clinic Entrances Act

In 1994, reacting to a nationwide problem of violent protests and blockades aimed at both abortion clinics and their patients and employees, "Congress enacted the Freedom of Access to Clinic Entrances Act, an act making it a federal crime to engage in certain prohibited activities interfering with the provision or obtainment of 'reproductive health services.' " United States v. Bird, 124 F.3d 667, 670 (5th Cir.1997), certiorari denied, --- U.S. ----, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998). "Between 1977 and early 1993, more than 1,000 acts of violence against abortion providers and more than 6,000 clinic blockades were reported in the United States." American Life League, Inc. v. Reno, 47 F.3d 642, 646 (4th Cir.1995), certiorari denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). The wave of violence, intimidation, and interference included "[m]urder, arson, kidnappings, bombings and bomb threats, assaults, death threats, trespasses, vandalism, gas attacks, military-style assaults, and blockades of entrances to clinics." United States v. Soderna, 82 F.3d 1370, 1372 (7th Cir.1996), certiorari denied, --- U.S. ----, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996). Because the local law enforcement agencies were unable or sometimes unwilling to take action to protect the patients and staffs of these facilities, Congress concluded that the Act was necessary to protect and promote public safety and health. American Life, 47 F.3d at 646.

The Act "forbids the use of force or threats of force or physical obstruction deliberately to injure, intimidate, or interfere with people seeking to obtain or to provide any reproductive medical or other health services, not just abortion, and also people seeking to exercise their religious rights in a church or other house of worship." Soderna, 82 F.3d at 1372-1373. Specifically, the Act provides criminal and civil penalties against anyone who:

(1) 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).

The Act defines "interfere" as "to restrict a person's freedom of movement." § 248(e)(2). "Intimidate" is defined as placing "a person in reasonable apprehension of bodily harm to him- or herself or to another." § 248(e)(3). The statutory definition of "physical obstruction" is "rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous." § 248(e)(4). The Act also provides that "[n]othing in this section shall be construed--(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution." § 248(d).

The criminal penalties prescribed by the Act vary with the nature of the violation, depending on whether the offense was violent or not, and whether the offender was a first-time or repeat offender. A first offense involving a nonviolent physical obstruction carries a penalty of imprisonment of not more than six months and a fine of not more than $10,000. § 248(b).

III. Analysis

A. FACE Does Not Violate the Free Speech Clause of the First Amendment

Defendants claim that FACE facially...