US v. White, CV 95-2760 RAP (GHKx).

• Citation: 893 F. Supp. 1423
• Decision Date: 23 June 1995
• Docket Number: No. CV 95-2760 RAP (GHKx).,CV 95-2760 RAP (GHKx).
• Parties: UNITED STATES of America, Plaintiff, v. Jeffrey Lee WHITE, et al., Defendants.
• Court: U.S. District Court — Central District of California

893 F. Supp. 1423

UNITED STATES of America, Plaintiff, v. Jeffrey Lee WHITE, et al., Defendants.

No. CV 95-2760 RAP (GHKx).

United States District Court, C.D. California.

June 23, 1995.

James Rainboldt, Rainboldt & McIntyre, Cypress, CA, Michael Hirsh, Ross Heckman, Ross Steven Heckman Law Offices, Glendale, CA, for defendants.

Pamela L. Johnston, Asst. U.S. Atty., Los Angeles, CA, Robert J. Moossy, Dept. of Justice, Washington, DC, Mellie Nelson, U.S. Atty. Gen., Special Litigation Section, Civil Rights Div., Washington, DC, for plaintiff.

MEMORANDUM RE PRELIMINARY INJUNCTION AND ORDER DENYING MOTIONS TO DISMISS

PAEZ, District Judge.

Plaintiff United States of America moved this Court for a preliminary injunction pursuant to the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248, Fed.R.Civ.P. 65, and Local Rule 7.17. The United States requested that the Court enjoin defendants Jeffrey White, Joseph Foreman, Bryan Kemper, their agents, servants, employees, and all individuals acting in concert with them from, among other things, using force or threats of force to interfere with or intimidate Dr. Michael Morris or his wife, Sarah Morris, in violation of the FACE statute.

Defendants opposed the motion based on Congress' lack of authority to enact FACE under the Commerce Clause of the Constitution and Section 5 of the Fourteenth Amendment, as well as on First Amendment grounds. Defendants also moved to dismiss the complaint for failure to name as indispensable parties Attorney General Janet Reno and Dr. Michael Morris. In addition, defendants moved to dismiss for failure to state a claim on the same Commerce Clause and Fourteenth Amendment grounds set forth in their opposition to the motion for a preliminary injunction, as well as on the purported absence of allegations in the complaint that would justify injunctive relief.

On June 15, 1995, the Court heard and denied defendants' three motions to dismiss. The Court also heard oral testimony on the preliminary injunction.

On June 19, 1995, the Court heard oral argument on the motion for a preliminary injunction. The Court considered fully the moving, opposition, and reply papers, the authorities cited therein, the declarations, exhibits, and oral arguments of counsel, as well as the witnesses' credibility. As stated at the conclusion of the hearing, the United States demonstrated it is substantially likely to prevail on the merits and that the balance of hardships tips in its favor. The Court thus issued the preliminary injunction on June 19, 1995, setting forth findings of fact and conclusions of law orally which are amplified herein. In addition, the Court formally denies defendants' three motions to dismiss, denied previously at the hearing on June 15, 1995.

I INTRODUCTION

On April 26, 1995, plaintiff United States of America filed a Civil Complaint for Injunctive Relief against defendants Jeffrey Lee White, Joseph Foreman, Bryan Scott Kemper (together, "the individual defendants"), Operation Rescue of California, and John Doe I, alleging violation of the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248. The U.S. filed a motion for preliminary injunction on the same date.

On May 22, 1995, Operation Rescue and the individual defendants each filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(7) on the grounds that Attorney General Janet Reno is an indispensable party and the only proper party authorized to bring this action. The individual defendants then filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenging the constitutionality of FACE on June 2, 1995. They also moved for joinder of a party (Dr. Morris) pursuant to Fed. R.Civ.P. 12(b)(7) and 19(a) the same date. On June 5, 1995, Operation Rescue filed a notice of joinder in the individual defendants' motions, although it subsequently withdrew its motion regarding the Attorney General.

II THE FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994

Congress stated the purpose of the Freedom of Access to Clinic Entrances Act as follows:

Pursuant to the affirmative power of Congress to enact this legislation under section 8 of article I of the Constitution, as well as under section 5 of the fourteenth amendment to the Constitution, it is the purpose of this Act enacting this section and provisions set out as notes under this section 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.

Pub.L. 103-259, § 2. Although the conference committee deleted the findings from the Senate Bill, instead incorporating a portion of them in the above Purpose section, the "Conferees noted that Congress has found:

(1) An interstate campaign of violent, threatening, obstructive and destructive conduct aimed at providers of reproductive health services across the nation has injured providers of such services and their patients, and the extent and interstate nature of this conduct place it beyond the ability of any single state or local jurisdiction to control;

(2) Such conduct, which has included blockades and invasions of medical facilities, arson and other destruction of property, assaults, death threats, attempted murder and murder, infringes upon the exercise of rights secured by federal and state law, both statutory and constitutional;

(3) Such conduct also burdens interstate commerce by forcing patients to travel from states where their access to reproductive health services is obstructed to other states, and by interfering with the interstate commercial activities of health care providers, including the purchase and lease of facilities and equipment, sale of goods and services, employment of personnel and generation of income, and purchase of medicine, medical supplies, surgical instruments and other supplies from other states;

(4) Prior to the Supreme Court's decision in Bray v. Alexandria Women's Health Clinic, ___ U.S. ___ 113 S.Ct. 753 122 L.Ed.2d 34 (1993), the conduct described in paragraphs (1) through (3) above was frequently enjoined by federal courts in actions brought under 42 U.S.C. 1985(3), but in that case the Court denied a remedy under such section to persons injured by the obstruction of access to abortion-related services; and

(5) Violent, threatening, obstructive and destructive conduct aimed at providers of reproductive health services can be prohibited, and the right of injured parties to seek redress in the courts can be established, without abridging the exercise of any rights guaranteed under the First Amendment to the Constitution or under any other law."

H.R.Conf.Rep. No. 103-488, 103d Cong., 2d Sess. 1994, 1994 WL 168882 (May 2, 1994), p. 5, U.S.Code Cong & Admin.News 1994, pp. 699, 724. The Senate Report from the Committee on Labor and Human Resources described the need for the legislation:

From 1977 to April 1993, more than 1,000 acts of violence against abortion providers were reported in the United States. These acts included at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic invasions, and one murder. In addition, over 6,000 clinic blockades and other disruptions have been reported since 1977. The record before the Committee establishes that state and local law enforcement is inadequate to handle this situation, and that Federal legislation is urgently needed.

Sen.Rep. 103-117, 103d Cong., 1st Sess. (July 29, 1993), p. 3. The Report recounted information and testimony regarding the increasing severity of anti-abortion activities, including the murder of Dr. David Gunn. The Operation Rescue coordinator in the Washington, D.C. area even testified that killing someone involved in the delivery of abortion services would be appropriate. Id., p. 4. The Senate Report also reviewed the attacks on facilities and destruction of property since 1977, resulting not only in risks to people's lives but "sharply curtailing access to health care for many women, particularly women living in rural areas." Id. As clinics often provide general health services as well as those related to pregnancy, these attacks impact a considerably larger group. The Report added:

Anti-abortion extremists have recently added to their arsenal the introduction of noxious chemicals into clinic facilities in an effort to render them unusable. Since January, 1992, 71 chemical attacks have been reported in at least 15 states, causing at least $500,000 in damage. One chemical used with increasing frequency is butyric acid, which creates an intolerable stench and causes nausea, vomiting, headaches, dizziness, inflamed eyes and skin, and difficulty in breathing. Butyric acid has been poured through holes drilled in clinic walls, sprayed through locks and under doors, and left in bathrooms by people entering the facilities posing as patients.

Id., p. 6. Clinics are not the only locus for the attacks:

Dr. Pablo Rodriguez, Medical Director of Planned Parenthood of Rhode Island, testified that he discovered over 40 nails in his tires after his car began steering poorly on the highway. Subsequently, he said, his wife `painfully discovered with her foot that the driveway was "boobytrapped" with roofing nails cleverly buried under the snow.' ... Anti-abortion activists have also blocked the driveways of staff and physicians with cement-filled barrels.

Id., p. 7. The Report also cited the many death threats that abortion providers have received. Id., pp. 10-11.

The increasing violence surrounding clinics is nationwide in focus, the Report documented. "Many of the activities ... have been organized and directed across State lines." Id., pp. 13-14. Moreover, the adverse effects include harm to patients and providers. The Report further...