US v. Lindgren

• Decision Date: 01 May 1995
• Docket Number: Civ. No. A3-95-4.
• Citation: 883 F. Supp. 1321
• Parties: UNITED STATES of America, Plaintiff, v. Timothy K. LINDGREN, Kathy Kirkeby, John Brennan, and Ronald D. Shaw, Defendants.
• Court: U.S. District Court — District of South Dakota

883 F. Supp. 1321

UNITED STATES of America, Plaintiff, v. Timothy K. LINDGREN, Kathy Kirkeby, John Brennan, and Ronald D. Shaw, Defendants.

Civ. No. A3-95-4.

United States District Court, D. North Dakota, Southeastern Division.

May 1, 1995.

COPYRIGHT MATERIAL OMITTED

John T. Schneider, Fargo, ND and Iris Goldschmidt, Washington, DC, for plaintiff.

Monty G. Mertz and Peter B. Crary, Fargo, ND, for defendants.

MEMORANDUM AND ORDER FOR PRELIMINARY INJUNCTION

WEBB, Chief Judge.

1. BACKGROUND:

The United States, through the Attorney General, brought this action under the recently enacted Freedom of Access to Clinic Entrances Act ("FACE"). 18 U.S.C. § 248 (1994). The United States alleges the defendants violated FACE during their anti-abortion efforts relating to the Fargo Women's Health Organization ("FWHO") facility in Fargo, North Dakota. The Complaint seeks damages, civil penalties, and injunctive relief.

The United States filed a motion for a preliminary injunction (Docket No. 4). The court received and considered numerous briefs supported by affidavits. Testimony and oral argument were presented at a hearing on the motion held April 13, 1995.

2. REQUEST FOR JUDICIAL NOTICE:

The defendants filed a Request for Judicial Notice (Docket No. 34) seeking to have this court recognize that it is the policy of the North Dakota State Legislature and the North Dakota Supreme Court, based on several state statutes and judicial opinions, that life begins at conception and should be protected from that time within constitutional limits. The defendants argue this establishes a public policy against abortion to be considered under the fourth Dataphase factor, which is discussed below.

The court will not take judicial notice of this alleged public policy. The merits of the abortion debate are not at issue in this proceeding, and the court will resist all attempts to insert them. The FWHO has a legal right to perform abortions. The defendants and others have a constitutional right to state their disagreement with this practice. The public has an interest in seeing both the law and the right to free speech upheld. The court will act to vindicate those public interests. It is not for this court to say which side is right, but rather to ensure that both sides have their legal and constitutional rights protected.

3. WHETHER A PRELIMINARY INJUNCTION SHOULD BE ISSUED:

The case of Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) governs preliminary injunctions in the Eighth Circuit. Under Dataphase, a district court is to consider four factors in deciding whether to issue a preliminary injunction:

(1) The threat of irreparable harm to the movant;

(2) The balance between this harm and the injury that granting the injunction will inflict on other parties;

(3) The probability that movant will succeed on the merits; and

(4) The public interest.

Dataphase at 113, Baker Electric Co-Op., Inc. v. Chaske, 28 F.3d 1466, 1472-74 (8th Cir.1994).

"No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction." Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d 500, 503 (8th Cir.1987); Dataphase, 640 F.2d at 114. However, a party moving for a preliminary injunction is required to show the threat of irreparable harm.

Baker Electric Co-Op at 1472.

A. Elements Of Proving FACE Violation:

The court will treat the third Dataphase factor, the probability that movant will succeed on the merits, as a threshold issue in this motion. To succeed on the merits, the United States will have to prove that each defendant engaged in activity prohibited by FACE.¹ Under 18 U.S.C. §§ 248(a) and (c)(2)(B) the damages, penalties, and injunctive relief sought in this action can only be ordered against individuals who are proved to have engaged in "prohibited activities."²

Section 248(a)(1) provides that a prohibited activity is committed by whomever:

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.

Therefore the following elements must be proven in order to establish a violation of FACE:

1. Force, threat of force, or physical obstruction;

2. Done with the intent to;

3. Injure, intimidate, or interfere with a person, or attempt to do so;

4. Because that person has sought or provided, or is seeking or providing, or will seek or provide, reproductive health services.

For each defendant named, and for each type of conduct alleged, the court will first consider the third Dataphase factor: how probable it is that the United States will be able to prove all of these four elements. If the probability appears insubstantial, then no injunction will be issued relating to that conduct by that defendant. If the probability is substantial, then the court will go on to consider the first Dataphase factor: whether the United States has met its burden of proving a threat of irreparable harm. If not, then no injunction will be issued relating to that conduct by that defendant. If the burden has been met, then the court will go on to consider those two factors along with the remaining two Dataphase factors — the public interest and the balance of potential injury to the parties — to determine whether a preliminary injunction should be issued.

The United States offered proof in four areas. First, the conduct of the defendant Brennan during the summer of 1994, consisting mainly of statements by Brennan to several individuals. Second, the conduct of the defendants Lindgren and Shaw on November 22, 1994, when they sealed themselves in two disabled cars in front of the FWHO facility. Third, the ongoing conduct of the defendants Lindgren, Kirkeby, and Brennan in front of the facility and at the airport. Fourth, the alleged conduct of Lindgren following a FWHO employee from the facility to her home in the summer of 1994.³

B. Brennan's Conduct:

1. Factual Allegations:

United States Deputy Marshal John Werner testified that he became familiar with Brennan in the summer of 1994, when he was one of six deputies assigned to the FWHO facility to enforce FACE. This duty was initially on a 24 hour basis. Late that summer, he and another deputy were in their parked cars across the street from the clinic at 3:00 a.m. He saw a person run toward the facility to the fence on the clinic's property line. The person hoisted himself up on the fence, gazed at the area where the deputies usually parked, and then dropped back to the ground. The person then saw the deputies across the street and ran toward them. The deputy then recognized the person as Brennan. Brennan was wearing a dark hat and a long dark raincoat on a warm night. The impact of Brennan's conduct is revealed by the fact that Werner, a calm and experienced law enforcement officer, was concerned enough that he drew his weapon inside his car. Brennan arrived at the car and conversed with the deputies. Werner testified that Brennan's statements "started normal" but then "went in all directions." Brennan indicated that he did not want the deputy marshals to be there. The conversation concluded without incident.

Werner also testified that in late summer of 1994 Brennan stated that if someone would shoot out the transformer on the power line to the clinic, the clinic would be out of business for a day. When Brennan made this statement he seemed agitated.

Fargo Police Lieutenant John Sanderson testified that in the middle and late summer of 1994 Brennan regularly visited the police station. Brennan's strange comments caused concern among desk officers. A policy was instituted to call a supervisor to the lobby when Brennan visited. Sanderson was once called to the lobby for that reason. Brennan was upset, and was discussing the FWHO facility. During this discussion, Brennan stated: "Some people think I am a psycho. I am a psycho. I'm a dangerous man." Sanderson believed him.

Jane Bovard is the Administrator of the FWHO. She testified that on June 30, 1994 she was awakened at 3:00 a.m. by ringing and pounding at the front door of her home. She went to the window and asked: "Who is it, what do you want?" Brennan responded: "Come out here, why won't you talk to me?" Brennan rang the bell and pounded on the door persistently. Bovard's husband got out his shotgun and loaded it. She called the police. Brennan was arrested, pleaded guilty to disorderly conduct, and was ordered to stay 100 feet from Bovard's home. Bovard testified he has violated that order twice.

Fargo Police Officer Tammy Lynk testified that she has known Brennan since 1991. She was working a night shift as the desk officer. Brennan would come into the police station at 2:00 or 3:00 a.m. and try to talk about abortion, which Lynk declined to discuss. Brennan once asked: "Do you think I'm nuts? I am nuts. I'm supposed to be taking medication."

Lynk went to the clinic on November 22, 1994, in connection with the car blockade, which is discussed below. Brennan was at the scene. An injunction issued by the North Dakota District Court in Cass County permitted only two anti-abortion individuals at a time within a 100 foot zone around the FWHO facility. The two individuals within the disabled cars filled that quota. Brennan came within the zone and Lynk told him to move out of it. Brennan became upset and angry, screaming and yelling. He said there might be a bomb in one of the cars, and there might be someone in the area with a remote detonator. Several times he shouted "boom!" and threw his hands in the air. Lynk was shocked, and informed the other personnel on the scene. Brennan later came back within the zone and was arrested. No bomb was...