US v. Brock, 94-CR-86 (JPS).

• Citation: 863 F. Supp. 851
• Decision Date: 23 September 1994
• Docket Number: No. 94-CR-86 (JPS).,94-CR-86 (JPS).
• Parties: UNITED STATES of America, Plaintiff, v. Ronald Dean BROCK, James Daniel Soderna, Michael Charles Suhy, Dale Robin Pultz, Colin Lester Hudson, and Marilyn Ruth Hatch, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

863 F. Supp. 851

UNITED STATES of America, Plaintiff, v. Ronald Dean BROCK, James Daniel Soderna, Michael Charles Suhy, Dale Robin Pultz, Colin Lester Hudson, and Marilyn Ruth Hatch, Defendants.

No. 94-CR-86 (JPS).

United States District Court, E.D. Wisconsin.

September 23, 1994.

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Matthew L. Jacobs, Asst. U.S. Atty., U.S. Attys. Office, Milwaukee, WI, for plaintiff.

Ronald Dean Brock, pro se.

Eugene R. Pigatti, Pikofsky, Campenni & Pigatti, S.C., Milwaukee, WI, for defendants Soderna, Pultz and Hudson.

Michael Charles Suhy, pro se.

Thomas J. McClure, Osinga & McClure, Milwaukee, WI, Mark J. Beutler, Charlottesville, VA, for defendant Hatch.

Catherine M. Doyle, McCarty, Lenz & Doyle, S.C., Milwaukee, WI, for amicus curiae Milwaukee Women's Medical Services.

Anne Willis Reed, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, WI, Catherine Weiss, Louise Melling, Karen Leiter, Reproductive Freedom Project, American Civ. Liberties Union Foundation, Steven R. Shapiro, American Civ. Liberties Union Foundation, New York City, for amicus curiae American Civ. Liberties Union, American Civ. Liberties Union of Wis.

DECISION AND ORDER

STADTMUELLER, District Judge.

This criminal case comes before the court on several pretrial motions filed by a number of the defendants. They have moved to dismiss the charges, contending that the statute under which they have been charged is unconstitutional.¹ They have also moved for a bill of particulars, including a notice of intent to use evidence, and a jury trial. Each of the motions is now fully briefed² and ready for disposition.

Facts

On June 6, 1994, each of the named defendants was formally charged by complaint with having violated § 3 of the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248(a)(1). The complaint was based upon an affidavit prepared by Special Agent Matthew J. Gibson of the Federal Bureau of Investigation ("FBI"), which discloses the following facts.

On June 4, 1994, Affiliated Medical Services, Inc. ("Affiliated"), a Milwaukee medical clinic, had thirty-seven morning appointments for reproductive services scheduled. When the director of Affiliated arrived for work at 6:30 a.m., however, the two front entrances of the clinic were blocked. A Chevrolet station wagon was parked directly in the recessed area outside the southern doors, and completely blocked access to those doors. Defendant Suhy was lying on the hood of the Chevrolet. A hole had been cut in the hood, and defendant Suhy had placed his two hands through the grill and the hole in the hood. The floor of the Chevrolet had been removed, and defendant Brock was sitting on the ground, with his torso extending into the passenger area of the vehicle. His right hand was placed inside a pipe that was attached to the frame of the vehicle with concrete and chains.

An AMC Hornet parked parallel to the street blocked access to the recessed area adjacent to Affiliated's northern entrance. The door of the Hornet had been welded shut, and the interior had been reinforced with concrete and metal reinforcing rods. Two holes had been cut in the Hornet's floor, and defendants Hudson and Soderna were sitting on the ground, with their torsos extending up into the passenger area of the vehicle. Defendant Hudson's right hand was handcuffed inside a pipe filled with concrete and bolted to an I-beam, which was welded to the Hornet's frame. Defendant Soderna's hand was handcuffed to concrete reinforcing rods welded to the inside of the automobile. His leg was attached by a metal pipe to the leg of defendant Pultz.

Defendant Pultz, defendant Hatch, and a juvenile were seated in the recessed area between the Hornet and the north entrance. In addition, a fifty-five gallon drum filled with concrete and metal reinforcing rods was placed in that recessed area.

Despite being ordered to do so by Milwaukee police officers, the defendants refused to move away from the clinic entrances. Their positions and the positions of the other obstacles prevented Affiliated staff from gaining access to the clinic. They were not able to gain access until 9:15 a.m., after Milwaukee police had forcibly removed two of the individuals blocking the northern entrance to the clinic. After staff gained access to the clinic, they were able to open a fire escape entrance that had not been blocked, to provide an entrance to the clinic.

Only twenty of the thirty-seven patients with appointments actually received reproductive health services at Affiliated that morning.

On June 10, 1994, the United States Attorney in this district filed an information charging each of the defendants as follows:

On June 4, 1994, at Affiliated Medical Services, 1428 North Farwell Avenue, a facility that provides reproductive health services ... the defendants herein, did by physical obstruction intentionally intimidate and interfere, and attempt to intimidate and interfere, with persons because they were obtaining reproductive health services, and persons because they were providing reproductive health services, and in order to intimidate any persons from obtaining and providing reproductive health services;

All in violation of Title 18, United States Code, Section 248(a)(1).

The Statute

FACE provides for the imposition of civil and criminal penalties against anyone who

by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes 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). "Interfere with" is defined as "to restrict a person's freedom of movement." Id. § 248(e)(2). A person "intimidates" another person when that person is placed "in reasonable apprehension of bodily harm to him or herself or to another." Id. § 248(e)(3). "Physical obstruction" means "rendering impassable ingress to or, egress from a facility that provides reproductive health services ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous." Id. § 248(e)(4). "Reproductive health services" refers to "reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." Id. § 248(e)(5). "`Facility' includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located." Id. § 248(e)(1).

Violations of FACE involving exclusively nonviolent physical obstruction³ carry penalties of up to six months incarceration and a fine of not more than $10,000.⁴ FACE also provides for civil remedies. Id. § 248(c).

Finally, FACE includes a First Amendment saving clause:

... Nothing in this section shall be construed —

(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected by the First Amendment to the Constitution ...

Id. § 248(d).

Discussion

The defendants argue that FACE is constitutionally infirm because it is a content-based or viewpoint-based regulation of expressive activity and because it is vague and overbroad.⁵ They also argue that they are entitled to a bill of particulars, notice of intent to use evidence, and a jury trial. I will address each of these arguments in turn.

I

A government regulation that limits communication because of the message it conveys is considered a "content-based" regulation, and is subject to the strictest judicial scrutiny. The defendants argue that FACE is such a regulation.⁶

A

Initially, I must determine whether the defendants' activity, as described in the June 10 information, is protected by the First Amendment.

The Supreme Court has rejected the "view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." Wisconsin v. Mitchell, ___ U.S. ___, ___, 113 S.Ct. 2194, 2199, 124 L.Ed.2d 436 (1993) (citing United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); R.A.V. v. City of St. Paul, ___ U.S. ___, ___, 112 S.Ct. 2538, 2544, 120 L.Ed.2d 305 (1992); Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam); Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464-65, 13 L.Ed.2d 471 (1965)). As a result, the First Amendment does not protect the use of force or threats of force.⁷See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982) ("The First Amendment does not protect violence."); Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (18 U.S.C. § 871(a), which criminalizes threats against the President, is constitutional on its face); United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir.) ("The First Amendment affords no protection to those who utter direct threats of force and violence toward other persons."), cert. denied, ___ U.S. ___, 114 S.Ct. 337, 126 L.Ed.2d 282 (1993); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990) (upholding conviction under 18 U.S.C. § 876, mailing threatening communications).

FACE, however, prohibits more than just force and threats of force. It also proscribes certain nonviolent forms of "physical obstruction." 18 U.S.C. 248(a). In fact, the information in this case is based on such "physical obstruction." Thus, I must decide whether nonviolent physical obstruction, as practiced by the defendants in this case, can constitute protected activity under the First Amendment.

In deciding...