Opinion
99-CV-209A.
July 26, 2000
DECISION AND ORDER
INTRODUCTION
Currently before the Court is plaintiffs' motion for a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65(a), the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. § 248, and state law, establishing limited buffer zones around reproductive health clinics within this District and otherwise preventing defendants from engaging in illegal activities designed to disrupt access to those clinics. For the reasons stated herein, the Court grants plaintiffs' motion for a preliminary injunction. A copy of the preliminary injunction is attached as an appendix to this Decision and Order. The preliminary injunction itself shall be filed under separate cover. The following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a) and 65(d).
FINDINGS OF FACT
A. General Background and Findings
Plaintiffs People of the State of New York are represented by the Attorney General for the State of New York, pursuant to 18 U.S.C. § 248(c)(3) and New York Executive Law § 63. FACE, § 248(c)(3)(A), allows the Attorney General of a State to commence a civil action in the name of that State as parens patriae on behalf of natural persons residing in such State if the Attorney General of such State has reasonable cause to believe that any person or group of persons is being or has been injured by or may be injured by conduct constituting a violation of FACE.
Plaintiffs Buffalo GYN Womenservices ("Buffalo Womenservices" or "Womenservices"), Shalom Press, M.D. and Morris Wortman, M.D. are health care providers located in the Western New York area. They offer various reproductive health services, including abortion, abortion counseling and family planning services.
Plaintiff Planned Parenthood of the Rochester/Syracuse Region ("Rochester Planned Parenthood" or "Planned Parenthood") is an organization that operates a medical facility in Rochester, New York, which provides reproductive health services including abortion, abortion counseling, rape counseling, parenting and family planning services.
Plaintiff Pro-Choice Network of Western New York is a not-for-profit corporation based in Buffalo, New York. Its primary goal is to maintain legal and safe access to family planning and abortion services in the Western New York area. It also organizes some members to serve as escorts for patients seeking access to plaintiff health care providers' facilities.
Defendants include five organizations: Operation Rescue National, Last Call Ministries, Rescue Rochester, Lambs of Christ and Christian American Family Life Association, Inc., and 59 individuals opposed to abortion and dedicated to the "pro-life" movement. Defendants reside in numerous locations throughout this District and several reside outside the District. Each of the defendants is alleged to have planned and/or engaged in conduct that threatened to impede unlawfully or has unlawfully impeded access to abortion related-services in this District.
Most of the defendants have either defaulted or entered into stipulations of settlement. (See Plaintiffs' Exhibit 138). Only 23 of the 64 defendants are still contesting the case: Bonnie Behn, Robert Behn, Last Call Ministries, Eva Boldt, Allen Fricke, Kenneth Harms, Eric Johns, Paul Koehn, Richard Krolewicz, William Michaels, James Missall, Linda Palm, Daniel Przywuski, Jacqueline Rademacher, Gerald Sutter, Roseanne Sutter, Phyllis Walker, Calvin Zastrow, Gerald Crawford, Mary Melfi, Mary Beth Powley, Michael Warren and Rescue Rochester. Four individuals originally named as defendants, John Blanchard, Michael Iluzzi, Dwight Monagan, and Rene Riddle, were dismissed by plaintiffs' motion on April 29, 1999 and should no longer be listed in the caption. Item No. 71.
As discussed in more detail below, the instant case is just the latest chapter in a decade long dispute between abortion providers and anti-abortion protesters regarding the conduct of the protesters outside abortion clinics located in this District. Practically speaking, this case is simply a continuation of a similar case filed in 1990 in this Court. See Pro-Choice Network of Western N.Y. v. Project Rescue Western N.Y., 799 F. Supp. 1417 (W.D.N.Y. 1992), aff'd, 67 F.3d 377 (2nd Cir. 1995), aff'd in relevant part, sub nom, Schenck v. Pro-Choice Network, 519 U.S. 357 (1997). The Pro-Choice case involved many of the same plaintiffs and defendants that are involved in this case, and centered on the conduct of anti-abortion protesters outside abortion facilities located in this District.
Plaintiffs common to both cases are: Buffalo GYN Womenservices, Inc., Shalom Press, M.D., Planned Parenthood of the Rochester/Syracuse Region, Morris Wortman, M.D., and Pro-Choice Network of Western New York. Defendants common to both cases are: Operation Rescue National, Last Call Ministries, Rescue Rochester, Robert Behn, Bonnie Behn, Eva Boldt, Gerald Crawford, Amy Dorscheid, Robert Dorscheid, Eric Johns, Dennis Marriott, Hettie Pascoe, Nancy Walker and Phyllis Walker. (See Plaintiffs' Exhibit 138).
On February 14, 1992, prior to the enactment of FACE, this Court issued a preliminary injunction in the Pro-Choice case that, among other things, established fifteen-foot buffer zones outside facilities that perform abortions in the Western District. See id. The preliminary injunction permitted no more than two individuals to be present inside the buffer zone for the purpose of "sidewalk counseling consisting of a conversation of a non-threatening nature." Id. at 1440. With slight modification, the Pro-Choice preliminary injunction remained in effect until subsequent events in this case.
In October 1998, defendants stepped up their protest activities, announcing that from April 18-25, 1999, anti-abortion protesters would gather in Buffalo and Rochester for "Operation Save America" ("OSA"). This event was to be a reprise of the "Spring of Life," a large-scale anti-abortion protest that occurred in April 1992, in which hundreds of people were arrested as they blockaded medical facilities that perform abortions in and around Buffalo.
On March 22, 1999, in response to the upcoming OSA, plaintiffs brought the instant action and sought a temporary restraining order ("TRO") and a preliminary injunction. On April 15, 1999, after a four-day hearing, the Court granted plaintiffs' request for a TRO. The TRO issued in this case superceded the Court's preliminary injunction in the Pro-Choice case.
Because the Pro-Choice case serves as the backdrop for the instant case, the Court hereby incorporates by reference the record in the Pro-Choice case.
OSA took place as planned and protesters from around the country gathered outside reproductive health facilities in Buffalo, Rochester and other locations in Western New York. Law enforcement authorities enforced the TRO effectively and there was neither a disruption of plaintiffs' reproductive health facilities nor of the public order.
Plaintiffs now seek to convert the TRO to a preliminary injunction. The Court held a twenty-three-day hearing on plaintiffs' application. For the most part, the evidence offered by plaintiffs at the hearing was uncontested. As discussed in more detail below, plaintiffs offered overwhelming proof to support their claims. Defendants, on the other hand, offered no material evidence to contradict plaintiffs' evidence. In fact, none of the defendants even testified at the hearing. To the extent that defendants did offer evidence, such evidence was, at most, only relevant to collateral issues and in no way challenged the substance or weight of plaintiffs' proof.
The proof offered by plaintiffs showed conclusively that defendants, prior to the TRO, repeatedly interfered with access to reproductive health facilities in ways that not only violate FACE, but also create significant public safety hazards amounting to a public nuisance under New York law. The evidence also demonstrated that changed circumstances have rendered the preliminary injunction issued in the Pro-Choice case insufficient to protect access to reproductive health services and the public well-being in general. The proof showed that defendants have taken advantage of the "sidewalk counselor" provision of the prior preliminary injunction by converting it into a license to enter the buffer zones and create a gauntlet of intimidation outside reproductive health facilities that interferes with access to medical care. Defendants physically obstruct passage through sidewalks and into driveways, and scream at patients until the patients are brought to tears. Certain defendants have made threats of physical violence against clinic staff and escorts, warning them of bombing or premature death. Defendants' conduct renders some women unable to receive the medical care they sought; forces others to delay their care; and interferes with plaintiff health providers' ability to provide reproductive health services.
The evidence adduced at the hearing also demonstrated that defendants' presence within the buffer zones around driveways makes ingress to and egress from these facilities unreasonably difficult and dangerous. Defendants' conduct creates significant traffic and safety hazards for clinic staff, personnel, and the general public. Defendants block public sidewalks, forcing passersby into the street, and have even assaulted pedestrians outside clinic facilities. They invade the driveways of neighboring businesses and the public streets, carrying signs that obstruct traffic and regularly cause near accidents. To mitigate these hazards to clinic access and public safety, the Court finds that defendants must be excluded from the buffer zones entirely and, in two cases, the buffer zones must be expanded.
Defendants have also expanded the targets of their activity to include reproductive health facilities that do not provide abortions, such as some Planned Parenthood clinics. Defendants' activities at these facilities endanger access to health care and create the same public safety concerns as those present at the clinics where abortions are provided.
The uncontested evidence showed that the TRO has virtually eliminated the impediments to clinic access and the threats to public safety created by defendants' pre-TRO conduct, and that it is a valuable law enforcement tool. Moreover, at the hearing, defendants did not challenge the evidence that the TRO's restrictions still leave them free to communicate their message forcefully and effectively at reproductive health facilities.
B. Defendants' Pre-TRO Conduct
Defendants regularly protest at several reproductive health facilities in Western New York, including GYN Womenservices in Buffalo, Planned Parenthood at 114 University Avenue in Rochester, Planned Parenthood in Greece, the office of Dr. Morris Wortman in Brighton, and the office of Dr. Shalom Press in Amherst. Defendants' ongoing conduct at these facilities can be placed in two broad categories, both of which establish plaintiffs' entitlement to injunctive relief under FACE and state law. First, defendants make aggressive and frightening approaches to patients, staff and clinic escorts. Several defendants have threatened bodily harm to medical staff or escorts and there have even been assaults. The testimony showed that these approaches in some cases physically impede patient access to medical care; while in others, defendants' conduct disrupts, delays, or increases the risks of the medical care patients seek. Second, defendants engage in conduct on the sidewalks, in the streets and in the driveways around reproductive health facilities that limits access to these facilities; creates dangers to patients, staff and the general public; and interferes with the public use of the sidewalks and streets near the facilities.
1. Aggressive and Frightening Approaches to Patients and Staff
The evidence shows that defendants force patients and staff of reproductive health facilities through a gauntlet of aggressive and frightening approaches that has a harmful impact on patients and impedes their access to medical care. These approaches include physically crowding patients as they arrive, either on foot, in their vehicles, or by bus, and at the same time shouting and screaming at them. In addition to distressing patients so greatly that their medical care must sometimes be delayed, the excessive noise defendants create is sometimes also audible inside the facilities, where it further interferes with medical services. a. Contacts with Patients, Staff and Escorts (1) Face-to-Face Contact with Patients
At Buffalo Womenservices, where about one-fourth of the patients arrive by foot, patient are often initially approached by one or two protesters who attempt to give them literature. As the patients near Womenservices, three to four more protesters confront them. The protestors approach patients in serial relays with as many as six protestors ultimately trying to give them literature and standing in front of them. This conduct often makes access to the clinic extremely difficult, and occasionally even hazardous, for the patients.
The Court uses the terms "protestors" and "defendants" interchangeably herein.
The protesters assume a position only a few inches from the patient, side-by-side, just ahead or just behind her. For example, defendants Eva Boldt and Phyllis Walker are often so close that their shoulders touch the shoulders of the patient. Protestors routinely make physical contact with arriving patients.
Patients often have difficulty getting through the protesters. The protestors sometimes step in front of the patients, thus impeding or blocking their progress on the sidewalk. Patients are often "accosted, jostled, screamed at or chased" by the protestors. (Tr. at 789). Defendants commonly disregard the patient's expressed desire to be left alone and continue blocking, crowding and harassing the patient all the way into the clinic. As a result of this conduct, patients are often left sobbing and upset.
Protesters gather on the ribbon of sidewalk that lies between the fifteen-foot Pro-Choice buffer zone surrounding the clinic door and the curb of Main Street. When protesters are lining the curb, drivers usually will not drop patients off in front of Womenservices as it is almost impossible for the patient to open the car door to exit the vehicle.
Patients who arrive at Womenservices by bus are similarly "harassed from the bus up until the doorway" of Womenservices. (Tr. at 324, 1349-51). Patients getting off the bus sometimes leave the sidewalk and walk out into the street to get around the protesters who are gathered near the bus stop blocking the sidewalk.
Protesters will usually begin speaking to the arriving patient in a normal tone of voice, but if the patient indicates that she is not interested, they increase the volume of their voices and yell at the patient. Plaintiffs introduced into evidence tape recordings portraying the volume and nature of defendants' screaming outside the clinic. (Plaintiffs' Exhibits 134-36). These tapes gave the Court an opportunity to hear defendants screaming at patients entering the front door of Womenservices and at cars driving down the clinic driveway. Just the volume and intensity of defendants' screaming, without consideration of the content of their speech, is threatening in nature.
The protesters are so loud that the owner of the service station next door to the clinic can hear them even in the wintertime when his bay doors and office door are closed.
Protesters often cup their hands around their mouths and continue to scream and shout at patients, even after the patients have entered the outer glass door of Womenservices. Because patients must wait there in a small vestibule to be cleared by clinic security and "buzzed in" through the inner door, the patients are momentarily trapped between the two doors. The protestors often continue screaming at the patient through the outer glass door. Defendants Rosina LoTempio, Bonnie Behn and Roseanne Sutter are among the protesters who participate in such conduct.
Sometimes, the protestors simply lose control. For example, on January 13, 1998, defendant John Urgo shouted loudly at two patients entering the clinic, calling them derogatory names. On September 5, 1998, defendant Roseanne Sutter became involved in a shoving match with a man accompanying a patient into the clinic. Sutter ended up striking the man three times in the back.
The evidence showed that the situation is similar in the Rochester area. At the prior location of plaintiff Dr. Morris Wortman's medical office in Brighton, anti-abortion protesters, including defendants Mary Melfi and Rob Pokalsky, would go into the parking lot to confront patients before they even got out of their cars. The protestors would stand so close to the cars that the occupants could not exit the vehicle without pushing them out of the way with the car door.
Dr. Wortman has recently relocated his office.
Protestors would often stand in front of patients trying to enter the clinic, forcing them to walk around the protestors. If the patient got around the protestor, the protestor would follow one step behind the patient and continue haranguing the patient. Protesters would also walk backwards, facing the patients. When the protestor stopped abruptly, there would be physical contact between the protester and the patient.
As in Buffalo, protesters usually began speaking to the arriving patient in a normal tone of voice, but often ended up screaming at the patient. Some protestors, including defendants Melfi and Pokalsky, often used a bullhorn or megaphone in the parking lot or near the building's walkway entrance. The staff of other doctors' offices in the building sometimes complained to Dr. Wortman's staff office about the noise protesters made outside.
Also, as in Buffalo, some patients in these face-to-face encounters experienced actual physical contact with protesters. At Dr. Wortman's office, patients reported being "harassed" and "touched" by protesters outside. (Tr. at 3429). The Chief Operating Officer of Dr. Wortman's office testified that 80 percent of the patients who came to Dr. Wortman's office on days when there were protesters expressed fear that they would be "attacked" by the protestors when they left. (Id.). Such fears were never expressed on days when there were no protestors outside.
Similar conduct by defendants regularly occurs outside the Rochester Planned Parenthood clinic. There, protestors often stand in front of patients on the sidewalk outside the clinic so that the patients would have to walk around them. Protestors also use megaphones to convey loudly their message to patients who enter the clinic from the parking lot after arriving by car.
(2) Encounters with Patients Arriving by Car
The evidence showed that patients who arrive at the various reproductive health facilities by car are also subjected to the aggressive encounters described above. In fact, many of defendants' ongoing activities are focused on the driveways that lead to clinic parking lots. Defendants routinely position themselves on the sidewalk abutting the edge of a driveway or in the driveway itself, and then aggressively approach cars as they turn in.
A narrow driveway is the single means of ingress to and egress from the parking lots at Buffalo Womenservices and Rochester Planned Parenthood. This section focuses on evidence about how defendants' conduct at the driveway affects patients' medical care. The impact of conduct at and near the driveways on physical access to reproductive health care facilities and on traffic safety outside clinics is addressed below.
At Buffalo Womenservices, protesters, including defendants Bonnie Behn, Eva Boldt, James Missall, Linda Palm, Jacqueline Rademacher, Roseanne Sutter, John Urgo and Phyllis Walker, gather inside the buffer zone in and around the driveway of Womenservices created by the Pro-Choice injunction. Defendants will attempt to stop cars entering Womenservices by quickly approaching from both sides as they turn into the driveway, or sometimes standing in the driveway. The protesters get right next to the cars, sometimes coming so close that they are in physical contact with the vehicle. They scream at the occupants and try to put literature on the windshield or hand literature through the windows, sometimes while the car is still moving. As soon as the car pulls away, the protesters start screaming at the car. Numerous photographs in evidence show protesters standing within the driveway buffer zone, with their backs toward Main Street and the driveway entrance, cupping their hands over their mouths and screaming down the driveway toward the parking lot. (Plaintiffs' Exhibits 6-13, 15, 119-B). The defendants in the photographs are standing near the clinic's emergency exit door, and the sound they make is audible inside the surgical recovery room that lies on the other side of that door. Once the patient's car has pulled down the clinic driveway, protesters who have stationed themselves at the other end of the clinic building near the neighboring service station begin screaming to the back of the building, where the parking lot is located.
As stated above, the Pro-Choice preliminary injunction permits no more than two individuals to be present inside the buffer zone for the purpose of "sidewalk counseling consisting of a conversation of a non-threatening nature." Pro-Choice, 799 F. Supp. at 1440. In Buffalo, there are often more than two protesters present within the driveway buffer zone. Some protesters simply stand within the buffer zone and do not leave it for hours even when there are no patients to counsel.
When patients leave Womenservices, protesters again approach and sometimes surround cars in the driveway for the purpose of handing out literature and communicating their views about abortion. The protesters "put their hands right into the windows of the cars, presenting people with fliers." (Tr. at 1338). Protestors have even jumped onto the hoods of cars leaving the clinic. Protestors participating in such conduct include defendants Robert Behn and Hettie Pascoe.
Likewise, in Rochester, at Rochester Planned Parenthood, patients and staff face protesters gathered at the driveway. Protestors often use a bullhorn or megaphone to make themselves heard and carry large signs. As in Buffalo, the protesters do not just stay at the side of the driveway, but instead walk right up to cars as they are pulling in or out. Defendant Mary Melfi is particularly aggressive in approaching cars turning into or exiting the driveway.
The defendants walk up to car windows and attempt to engage occupants in conversation while the cars are in the driveway. They push pamphlets into cars, without regard for the impact of this intrusive activity on the occupants. Defendant Melfi often persists in proffering literature, even when drivers reject it.
Defendants shout at the occupants of cars, again without regard for the impact this may have on the occupants. When drivers refuse to roll down their car windows, defendant Melfi "shouts at them through the rolled up window. . . . She leans in to make herself heard and shouts through the window, the glass of the car." (Tr. at 730). Sometimes, Melfi raps on the car's windows and shouts at the occupants. At other times, Melfi uses a bullhorn or megaphone to address people from as little as one foot away as they enter and leave the parking lot.
The Rochester protesters call out to clients and staff "from the time they pull into the driveway, as they exit their car and they park it, and as they walk into the doors of the building itself." (Tr. at 3758). One aspect of defendant Melfi's behavior that is particularly distressing to staff and patients of Rochester Planned Parenthood is the volume of her voice at close range. Melfi uses a megaphone or bullhorn to amplify her voice. Even when she speaks into the megaphone, "[i]t sounds like she's yelling. It's loud." (Tr. at 2812). Defendant Bill Smith also routinely shouts at every arriving patient and "bellow[s]" at escorts in a "loud deep voice." (Tr. at 2423). Defendant Robert Pokalsky stands on the sidewalk near the corner of the Rochester Planned Parenthood building, where it intersects with the private walkway. He often will speak for as long as half an hour through a megaphone in a "continuous monologue" directed toward escorts and patients entering the building. (Tr. at 2395-96).
Defendant Melfi's tone as she addresses arriving patients "varies from appearing to be very low key and moderate, to being very very angry, very loud, very hostile." (Tr. at 608). She often speaks or shouts in an "angry" tone. (Tr. at 2069, 3758-59, 3765, 3878). "If a person refuses to acknowledge her or engage her in her conversation, she begins yelling, and that tone . . . becomes angry" as she yells through the bullhorn. (Tr. at 3758-59). Melfi continues such conduct even when the patient asks to left alone.
From January 1999 until mid-April 1999, defendant Melfi and one or two other protesters protested at the Greece Planned Parenthood office on Monday evenings, when the clinic is open late. They stood on the sidewalk adjoining the small parking area, distributing literature and addressing entering staff and patients. Melfi sometimes used a bullhorn or a megaphone to address patients. The protesters' amplified voices could be heard clearly inside the client waiting area, "almost as loud as outside." (Tr. at 2651, 2770-71).
Greece Planned Parenthood is located in Greece, New York and is part of plaintiff Planned Parenthood of the Rochester/Syracuse Region.
(3) Demonstrations
Reproductive health facilities within the District are subject to extremely noisy and recurrent demonstrations. The sound generated at these demonstrations often penetrates into the facilities. In Buffalo, on Saturdays, protesters, led by defendant Hettie Pascoe, gather in the narrow ribbon of sidewalk that lies between the Pro-Choice buffer zone around the front door of Womenservices and the curb of Main Street. There, they pray, chant and scream toward the front door of the clinic. Tapes introduced into evidence at the hearing allowed the Court to hear the loud volume of these demonstrations. (Plaintiffs' Exhibit 135).
Rochester Planned Parenthood is the site of monthly "rosary marches," led by defendant Norman Weslin, a Catholic priest, with the participation of the defendant organization Lambs of Christ. These demonstrations generate substantial noise. Prior to the TRO, Weslin used a bullhorn and walkie-talkies to communicate and could be heard at the back outside corner of the building.
(4) Threats, Physical Confrontations and Other Approaches to Staff and Escorts
The evidence shows that defendants also target staff and clinic escorts for threats and verbal and physical abuse. (a) Threats and Verbal Abuse
At both Buffalo Womenservices and Rochester Planned Parenthood, volunteer escorts assist the patients in getting inside the medical facilities.
Plaintiff presented uncontested evidence that defendants made what would reasonably be understood to be threats of violence against clinic staff and escorts. For example, on February 26, 1999, defendant Linda Palm threatened Richard Walkner, the Buffalo Womenservices' security guard, and Peter Warn, a clinic escort. She told Warn, "You the guard are going to die before the end of the day. You only have a little time to make things right with God." (Tr. at 1396-97).
Michelle Tuohey, a former staff member at Rochester Planned Parenthood, testified that on October 20, 1998, defendant Melfi threatened to bomb Rochester Planned Parenthood. Tuohey and two co-workers were standing together near the staff parking area, when Melfi, who was on the sidewalk near the driveway, shouted to them, "You won't be laughing when the bomb goes off." (Tr. at 3883-84). Touhey promptly reported the threat to the Rochester Police Department, but it does not appear that any action was taken.
On October 23, 1998, Dr. Barnett Slepian, a Buffalo doctor who performed abortions, was murdered in Amherst, New York. The next day in Rochester, when plaintiff Dr. Morris Wortman arrived at his office, defendant Melfi "came up behind him and said, you're next, I hope you're next, you're next." (Tr. at 3422).
Also soon after Dr. Slepian's murder, defendant Melfi said to Rochester Planned Parenthood Director Carol Love, "Carol, it's no different murdering babies than murdering doctors." (Tr. at 2258). Love testified that in the context of the situation as it then existed, she was threatened by this statement: "I did feel it was a threat in the context of the targeting of health care providers and directors, their names being put out on the Internet, and marked as dead or injured. . . . [S]he was calling me a murderer, and I consider that threatening in the context of violence towards providers of women's health services." (Tr. at 2258-59).
Similarly, in Buffalo, soon after Dr. Slepian's death, defendant Eva Boldt yelled at escort Helen Dalley, "you know what happened to Dr. Slepian, Helen, you better watch out." (Tr. at 450). Boldt made reference to another clinic escort who had died and told Dalley "the wages of sin is death." (Tr. at 451). Defendants Alan Fricke and Daniel Przywuski often told escorts that they were going to die.
At Buffalo Womenservices, most employees approach the clinic on foot because the parking lot in the back of the clinic is reserved for patients. Protesters regularly follow and harass clinic employees, calling them names and refusing to stop when asked. For example, on one occasion, defendant John Urgo said to Melinda DuBois, assistant director of Buffalo Womenservices, "you better watch out, you fucking bitch," making DuBois feel "extremely uncomfortable, and very concerned for [her] own safety." (Tr. at 1755). (b) Physical Confrontations
At Buffalo Womenservices, patient escorts are often the target of physical confrontations with defendants. Escort Helen Dalley testified that defendant Edmund Lutz once "pushed [her] very hard," and that defendant Bonnie Behn once pushed her so hard from behind that she "stumbled into the street." (Tr. at 457, 461). On another occasion, Dalley "was walking north on Main Street with a patient who wanted an escort. And [defendant] Phyllis Walker came up behind [her] and slammed into [her]." (Tr. at 462). On July 12, 1997, defendant Phyllis Walker "physically pushed" Edna LNU, a clinic escort. (Tr. at 1379-80). "Edna was trying to get the client up the stair into the clinic" when defendant Walker "gave [Edna] a good healthy shove." (Tr. at 1380). On November 11, 1998, defendant Edmund Lutz pushed escort Peter Warn as Warn was escorting a patient.
Defendant Daniel Przywuski often "raised his cane above his head and brought it down as if he was going to hit [an escort] with it." (Tr. at 1202). At least twice, he brought his cane down within inches of an escort's face.
On August 2, 1997, defendant James Missall and escort Jim Heller got into a pushing match. When a Buffalo Police Officer attempted to settle the dispute, defendants Eva Boldt and Phyllis Walker intervened. When the Officer put Boldt under arrest, he was assaulted by Walker, who was then arrested as well.
Rochester Planned Parenthood escort Marsha Peone described an incident in which she and another escort were on the sidewalk in front of the clinic, assisting a patient who was being dropped off at the curb. Defendant William Smith came up behind the other escort and pushed her forward with his sign, then claimed that the escort had pushed him.
Defendants have also physically obstructed clinic employees. Similar to a tactic used with patients and escorts, protesters would not physically restrain Womenservices' employees, but instead would simply stand in front of the employees as they walked towards the clinic. The only way for employees to avoid colliding with the protesters was to change their paths and walk around them.
b. Disruption of Medical Care
Defendants' actions outside reproductive health care facilities disrupt medical treatment in several ways. First, as detailed below, they cause physical distress that may delay the patient's readiness for medical care or make her more vulnerable to medical complications. Second, they delay medical care by causing distress or distraction that must be dealt with before attention can return to the reason for the visit. Third, patients and staff can often hear the noise that protesters are making outside, distracting patients from being able to pay adequate attention to information and instructions they are receiving from medical staff, and in some cases directly interfering with the staff's ability to communicate with the patient. Fourth, the protests outside clinics keep some patients from even seeking medical care when protesters are present. Finally, defendants' actions make it more difficult for the plaintiff-facilities to hire and retain staff to provide reproductive health services.
Defendants' conduct — yelling, crowding, jostling, pushing, shoving, threatening — upsets and frightens patients arriving at plaintiffs' clinics. Womenservices' assistant director Melinda DuBois testified:
I've seen patients crying, concerned for their safety, very upset. . . . [T]hey're telling me that it's the protesters that have caused them to feel that way . . . There have been occasions where patients are coming into the clinic for surgery, and if they're crying, upset, scared for their own safety, there have been times where we have . . . suggested that they might want to come back on a day when there's not as many protesters there, or maybe at a different time when the protesters aren't out front. . . . The patients that feared for their safety, have said many times to me, well, are they going to be there when I come out, are they going to follow me? Are they going to follow me home, are they going to harass me at my house?
(Tr. at 1776-78). Escort Helen Dalley described a patient whose passage on the sidewalk had been blocked when defendant Nancy Walker stepped in front of her. Walker then followed the patient and yelled at her right up to the clinic door. The woman was "shaking" and "very nervous" by the time she entered the clinic. (Tr. at 433). Dalley has observed that many Womenservices' patients put up a brave front on the sidewalk but, when they get in the door, "they break down and they're crying." (Tr. at 448). She explained that, "[t]hey keep their composure until they get inside. And then they know they're safe and they're okay, then it all comes out. . . . They let their emotions go at that point. . . . They cry." (Tr. at 448-49).
Planned Parenthood nurse Karilee White testified that it "scares" and "shocks" patients when protesters come right up to their cars as they enter the parking lot. (Tr. at 2903). Nurse-practitioner Linda Sloyer testified that her patients at the Greece office of Planned Parenthood were angered and frightened by the shouting they encountered from protesters who started appearing there in early 1999, and that they were "distressed by being yelled at loudly." (Tr. at 2699). Some frightened patients have told staff that in the future, they planned to bring boyfriends, husbands, fathers or others for protection when they come to the clinic.
Nurses from both Buffalo Womenservices and Rochester Planned Parenthood testified that the presence of protesters outside their facilities correlates with the stress they see in incoming patients. Sandra Scheib, a registered nurse who is the nursing supervisor at Buffalo Womenservices, testified that patients who come to her clinic on days when large numbers of protesters are present experience a higher level of stress. Karilee White, a nurse and paramedic who assists with abortions at Rochester Planned Parenthood, testified that "[o]n days when there are protesters, patients are much more upset, they're agitated, they're fearful. On days when there are no protesters, they are much more calm, relaxed, they recover quicker, they go home quicker." (Tr. at 2893).
Plaintiffs presented uncontested evidence showing that the stress caused by patients' close encounters with protesters is not only emotionally upsetting, but also has physical manifestations that negatively affect medical care. According to Nurse Scheib, elevated levels of stress are associated with elevated blood pressure. Nurses from Planned Parenthood testified that they have had patients who were so distressed by the experience of passing through the protesters and being screamed at that their blood pressure and pulse were elevated. A patient with too high a blood pressure cannot undergo surgical procedures because of the increased risk of a stroke. Elevated blood pressure can also result in increased bleeding.
Nurse Scheib testified that another risk related to stress caused by protesters' aggressive approaches to patients is that some patients require sedation. Womenservices administers sedatives intravenously, and according to Nurse Scheib, "there's always a risk taking any kind of invasive measures on any patient." (Tr. at 2331-32). The stress caused by the protesters also has adverse consequences on the operating table. Patients become agitated by the protesters, which makes it more difficult for them to lie still on the operating table, increasing the risk of uterine perforation during an abortion.
Nurse Scheib testified that some patients "have said that they couldn't go through [with an abortion] because they were so upset by the protesters." (Tr. 2334). Postponing an abortion increases the medical risk. Nurse Scheib testified, "[t]he uterus gets larger, it gets thinner. The pregnancy, of course, is growing, so there's more chance of bleeding." (Tr. 2334).
Rochester Planned Parenthood nurse Rebecca Waters testified that when a patient exhibits physiological symptoms of stress — high blood pressure and fast pulse — she must be calmed before she can continue with her medical care. Waters and nurse White testified that some patients arrived in this physiologically distressed state almost every day that protesters were present outside, while on days without protests, patients never required calming to lower their pulse and blood pressure. Nurse White testified that patients who are "very calm, very relaxed" when seen on a day without protesters, are "scared, agitated [or] angered" when they come back on a protest day. (Tr. at 2897-98).
Even where the stress induced by the protesters' conduct does not delay medical care for physical reasons, it sometimes creates other forms of delay. Rape crisis counselor Michelle Santilli, of Rochester Planned Parenthood, testified that her clients, because they are survivors of sexual assault, may be especially distressed by protesters' treatment of them on the way into the clinic. According to Santilli, the experience of having strangers "yelling at them, who are saying things like you're going to burn in hell, how can you come to a place that kills children," can "trigger them to feel more depressed, more shameful, more humiliation than they're already feeling." (Tr. at 1990-91). When this happens, Santilli must use valuable counseling time just dealing with the impact of the protesters' behavior, reducing the time and attention available for the post-rape counseling that is the reason for the client's visit.
Similarly, nurse White testified about her experience with a fourteen-year-old girl whose doctor had sent her to Rochester Planned Parenthood for a breast examination after the girl's mother was diagnosed with breast cancer. The girl was "terrified" of the protesters she encountered when entering Planned Parenthood, "she was crying, and she was just — she was scared to leave. She was scared to come in, but then again she was scared to leave, because she didn't want to see the protesters again." (Tr. at 2888). A nurse had to calm the patient for a half hour before she could receive medical care.
Likewise, at Greece Planned Parenthood, when protesters were present, clients were "very agitated. [They] [o]ften asked to talk to people . . . said that they needed to know why people were yelling at them." (Tr. at 2642). Patients were "upset and angry" when they could hear the protesters from inside the waiting room. (Tr. at 2770-71). Noisy protests "hindered medical care as far as spending increased time sort of assuaging fears and hearing out anxieties and concerns . . . simply about getting to the appointment," delaying the care the patient had come for. (Tr. at 2662).
The screaming and yelling of protesters on the sidewalk and driveway of Buffalo Womenservices is audible to patients inside the clinic's post-surgery recovery room, making them anxious, upset and stressed. Such an emotional state has adverse medical consequences. Stress can slow down the healing process. Nurse Scheib explained that "[w]hen the body is in a state of stress, the immune system goes down, and you don't heal as well." (Tr. 2329-30).
Because patients are distracted by the protesters' screaming, they pay less attention as the clinic staff members try to discuss with them their medications and follow-up care. Nurse Scheib testified that
a patient [in the recovery room] has to know what signs to look for, in order to call a nurse, when things are right or wrong. And if she doesn't understand or can't listen, then she doesn't know when things are wrong to call somebody for help. . . . If she's bleeding too hard, if she didn't listen to us and she doesn't know what's bleeding too hard, she may not call us. She may think it's okay. And she could just hemorrhage. . . .
(Tr. 2328).
The noise defendants make outside Rochester Planned Parenthood also interferes with clinical care. Nurse practitioner Linda Sloyer testified that she and other clinicians use the room that is behind the second window from University Avenue to counsel patients by telephone. Specifically, when medical test results show a need for further testing or for treatment, Sloyer calls the patient from that room to discuss the meaning of the test results and arrange for further care. The noise from protesters who are on the public sidewalk near the Rochester Planned Parenthood building not only interferes with Sloyer's concentration, but it is sometimes so loud that she has difficulty hearing the patient on the other end of the telephone. Jennifer Miller, who used a different room for counseling clients, testified that noise from defendant Melfi was "very disruptive, [and] distracting" to counseling. (Tr. at 1621-22). "While trying to talk to someone about issues going on in their personal life, sometimes a patient would stop and get into more of what was going on outside, why are [the protesters] here . . . express anger, express frustration. It would take me completely off track for what I was trying to do for the patient there." (Tr. at 1621-22). Clients were sometimes "very frustrated or angry" about the protesters, particularly "because they felt like they were being pinpointed as to someone that was there to receive a pregnancy termination, when they weren't." (Tr. at 1622). Miller also testified that when protesters are not present or cannot be heard through the window, "patients were less nervous, a lot less anxiety, it wasn't as disruptive or distracting." (Tr. at 1623). Noise from the protesters is also audible inside the clinic's patient waiting area.
The protests prevent some patients from even attempting to obtain reproductive health services. Michelle Tuohey, who until recently was a counselor for prenatal care clients at Rochester Planned Parenthood, testified that a young couple who had attended prenatal care sessions stopped coming because the male in the couple was so distressed by the protesters' treatment that he feared he would get into an altercation if he continued to encounter them. Tuohey and Nurse Waters both testified that patients who are coming to Rochester Planned Parenthood for all kinds of services — even urgent medical needs — often schedule visits specifically to avoid the protesters. Sometimes, patients avoid protests at the Rochester Planned Parenthood office entirely by traveling to more distant satellite offices or just not showing up for their appointments. Delays in obtaining treatment can lead to serious medical consequences. (Tr. at 726, 2891-92); see also Pro-Choice Network, 799 F. Supp. at 1427.
Rape counselor Michelle Santilli described how a teenager who had been raped stopped coming for counseling on Tuesday evenings after a particularly stressful encounter with protesters. The client and her mother arrived for counseling, and a protester using a bullhorn called out words to the effect that the client's mother was taking her into "a place that murders children." (Tr. at 1993-94). In her distress, the mother "blurted out" to the protesters that her daughter was a rape victim. (Tr. at 1994). The daughter "felt like she had been violated or exposed, because her privacy was gone. . . . She didn't want to come Tuesday nights anymore. She was frightened." (Tr. at 1995). The experience "prolonged" the client's recovery from sexual assault. (Tr. at 1995). Santilli also testified that another client, who was experiencing vivid nightmares of the sexual assault she had experienced, delayed her first rape crisis counseling appointment because of the anticipated OSA demonstrations at Rochester Planned Parenthood. The client, who had not yet told anyone about the assault, feared being seen or having her picture taken by protesters.
The protester involved appears to have been defendant Melfi.
Finally, defendants' conduct toward staff, as described above, makes it more difficult for reproductive health facilities to hire and retain staff. Staff feel threatened and fear for both their personal safety and the safety of their families. As a result of defendants' conduct, two physicians have stopped providing services at Rochester Planned Parenthood because they feared for their own safety.
Some staff members' homes have been picketed by the protestors.
2. Interference with Ingress and Egress, Creation of Traffic and Safety Hazards and Interference with Use of Public Sidewalks
At the preliminary injunction hearing, plaintiffs presented substantial evidence from both lay and law enforcement witnesses showing that defendants' conduct impedes ingress and egress to reproductive health facilities, interferes with the public's use of public sidewalks and streets, and creates unreasonable dangers to patients, the general public, and even to defendants themselves. This evidence divides into two categories: (1) conduct that disrupts access to driveways and endangers traffic in and around driveways, and (2) conduct that disrupts the use of public sidewalks.
a. Defendants' Activities In and Near Driveways (1) Interference with Vehicular Access and Safety
As discussed above, defendants routinely position themselves on the sidewalk in or near driveway entrances of reproductive health facilities, and then aggressively approach cars as they enter the driveways. Not only do these approaches distress patients in ways that interfere with their access to safe and timely medical care, they also create significant safety hazards for patients, staff, protesters and the general public.
Defendants' approaches to cars in the driveways impede ingress and egress to the affected reproductive health facilities. Defendants often succeed in stopping or slowing the car while they try to engage the occupants in conversation. A single stopped car can easily block a narrow driveway so that other cars can neither enter nor exit.
In Buffalo, where double yellow lines divide the driveway entrance and exit lanes, the protesters' approach prevents another car from entering until they have cleared the driveway. Womenservices' security guard Richard Walkner described the problem as follows: "[T]he [incoming] driver obviously isn't about to be running anybody over. And frequently [the incoming drivers] come to — a very slow movement, or sometimes a complete halt, which causes a problem for any additional cars coming into the driveway, because they're then extended out into Main Street." (Tr. at 1325). The problem is compounded because protesters often "walk very slowly" to get out of the driveway, even when another car is waiting in Main Street to pull in. (Tr. at 85-86).
In Rochester, even where the position of a stopped car in the driveway might otherwise permit another car to use it, the protesters typically bend down to talk to the occupants, so that their bodies are "blocking the incoming lane of traffic in the driveway." (Tr. at 2391-92). In fact, Rochester Police Officer Billy Wade testified that on several occasions he has had to ask defendant Melfi to "step back" from the driveway "so the traffic can flow through." (Tr. at 4002-03). Defendants' practice of stopping cars in the driveway "creates a lineup of traffic of people exiting the parking lot," creating "quite a period of time where people can't turn out into traffic." (Tr. at 2095).
In Rochester, drivers sometimes swerve around protesters who are blocking the driveway.
Rochester Planned Parenthood counselor Jennifer Miller testified that protesters actually blocked her from leaving Rochester Planned Parenthood on one occasion in the fall of 1998. As she was attempting to pull out of the driveway, protesters were on both sides of her car with signs, while defendant Rob Pokalsky walked very slowly in front of her car with a sign. She could not see and could not move forward. Miller stayed in the driveway for a full thirty seconds, and beeped her horn in an unsuccessful effort to get the protesters to move out of her way. She finally gave up and backed her car out of the driveway and into the parking lot.
Miller also testified that at her request, the police came to the scene, but they made no attempt to identify the protesters who had blocked her, and did not even take a report of the incident until weeks later.
The presence of protesters in the driveways distracts drivers and makes their ingress to and egress from the facilities unreasonably dangerous. Drivers pull in and out of the Planned Parenthood driveway quickly in an effort to avoid the protesters. The protesters' use of the bullhorn next to the driveway makes people "nervous" and "clearly distracted." (Tr. at 3970, 4046). This creates a significant traffic safety hazard because University Avenue at that point is a heavily trafficked roadway and traffic often travels above the speed limit. Even those drivers who do not rush to escape the protesters are nonetheless distracted by them and find it difficult to concentrate on making a safe departure from the driveway.
A similarly dangerous situation exists in and near the clinic driveway at Womenservices in Buffalo. According to Richard Walkner, the clinic security guard, "[b]ecause many of the drivers are in such a hurry to get out of that drive, some, I feel, are not acting as rationally as they would otherwise, if there weren't [a protester] standing there." (Tr. at 1341). "[W]hen [the drivers] are approached, they sometimes get a little bit excited" and "head out into the traffic . . . in an unsafe manner." (Tr. at 1338-39).
Defendants' practice of aggressively approaching cars in driveways forces other cars to wait out in busy streets, creating a constant risk of traffic accidents that endangers not only facility patients and staff, but the general public and the protesters themselves. As one witness testified, "if there's a protester right there [in the driveway], I slow down or I stop so that I don't hit the person. And that makes me feel like oncoming traffic behind me could hit me, could rear end me. It makes me feel unsafe, makes me nervous." (Tr. at 1686). (2) Signs In and Near Driveways
The evidence shows that patients and staff of the reproductive health facilities targeted by defendants must also cope with the protesters' practice of holding signs in positions that obstruct safe ingress to and egress from facilities. Specifically, protesters position outsized signs in such a way that cars pulling out of a driveway and onto a busy street cannot see oncoming traffic.
In Buffalo, protesters post large signs in and around the driveway entrance of Womenservices that obstruct the vision of a car making a right or left hand turn in or out of the clinic driveway. Protesters hold these signs in the street, as well. The largest of the signs is taller than the person who holds it.
The signs pose a serious safety hazard. They obstruct vision for both the flow of traffic coming down Main Street and vehicles attempting to enter or leave the clinic driveway. On weekdays, this poses a special safety hazard because protesters usually engage in these activities between 7:00 a.m. and 10:00 a.m. when traffic on Main Street is at its busiest. Even after having been advised by the Buffalo Police Department that the signs create a traffic hazard, the protesters persist in posting them in and around the driveway.
The hazard created by the protesters' signs is compounded because the traffic signal opposite the Womenservices' driveway faces only three ways; it does not give a signal to people waiting to leave the Womenservices' driveway.
Protesters also use their signs to obstruct the view of the entrance to Womenservices for patients who arrive by car. The only indication for arriving motorists of the location of the Womenservices' parking lot entrance is a small sign bearing the word "CLINIC" and an arrow, which is held by an escort near the driveway. (Plaintiffs' Exhibit 5). Protesters deliberately hold larger signs out into the street so that this entrance sign is blocked.
In the Rochester Planned Parenthood driveway, protesters routinely use large signs to block the view from the windshield and side windows of cars entering and exiting the parking lot. Such conduct creates a hazardous situation as drivers are unable to see oncoming traffic. Witnesses recounted that even when they tried to inch forward slowly, the protestors moved the signs to continue blocking the driver's view. Drivers are sometimes forced to change their routes, turning right instead of left out of the driveway because the protestors' signs block their view of traffic approaching from the right. The Rochester Police have repeatedly told protestors to move their signs so as not to create a hazard, but the protestors have refused to comply. (3) Slow Walks Across Driveways
The evidence shows that defendants also obstruct access to clinics by walking slowly across driveways, making cars wait, at times in traffic, to turn into clinic driveways. For example, at Rochester Planned Parenthood, defendants often obstruct the clinic by walking slowly and repeatedly back and forth across the driveway entrance to the facility. One witness testified that defendants walk across the driveway "like their feet were sticking in the asphalt." (Tr. at 604). Photographs introduced into evidence show a line of protesters crossing the Rochester Planned Parenthood driveway, including defendants Pokalsky, Smith and Weslin. (Plaintiffs' Exhibits 40-41 51-52). During the hearing, several witnesses demonstrated the exaggeratedly slow pace of this walking for the Court. These demonstrations showed that protestors walking at this pace took anywhere between two and four times longer to clear the driveway than would the average pedestrian.
The only apparent purpose of these slow walks is to impede ingress and egress to the facility. Former Rochester Planned Parenthood security guard Thomas Nagel testified that when cars approached the driveway, "[t]he protesters would walk slower than they had been, taking time to clear the driveway." (Tr. at 2533). Nurse Rebecca Waters observed that the line of protesters in the driveway not only moves "very slowly," but actually slows down when she is attempting to leave the driveway. (Tr. at 2756-57). Counselor Jennifer Miller described her perception that protesters in the driveway were "walking slowly to distract and prevent people from entering." (Tr. at 1633).
Nagel also described how the protesters sometimes shortened their route, so that instead of clearing the driveway before turning around on the sidewalk, they would begin their turn sooner and occupy the driveway apron for longer periods of time.
Rochester Police Officer Billy Wade testified that he has not only told protesters crossing the driveway that they needed to get out of the way of arriving cars, but he has actually had to assist cars to get in or out of the driveway. This type of conduct by defendants occurs on a routine basis.
Individual protesters also sometimes obstruct access to the driveway. For example, defendant Melfi routinely and deliberately drops an item in the driveway in front of a departing car, and then takes upwards of thirty seconds to retrieve it and get out of the driveway.
Buffalo protesters also sometimes walk back and forth slowly across the Womenservices' driveway, holding signs. As a result, cars trying to enter the driveway are routinely forced to stop or slow down, leaving them sitting in Main Street and thereby creating a possible traffic hazard.
More recently, on April 22, 1999, during the OSA demonstrations, defendant Eric Johns led a group of approximately one hundred protesters back and forth across the driveway of plaintiff Dr. Shalom Press's office in Amherst. Defendant Johns' group, disregarding police directives, walked back and forth across the driveway for at least thirty minutes, right at the edge of the busy roadway. The protesters' large signs were intruding into a traffic lane, and "[a] number of cars came to fairly screeching halts trying to make sure they didn't hit the protesters." (Tr. at 1174).
(4) Activity in Other Driveways
The evidence shows that defendants' activities are not limited to clinic driveways. In Buffalo, protestors regularly gather in the driveway of the service station that is on Main Street just north of Buffalo Womenservices. With their backs to Main Street and the driveway, protesters cup their hands over their mouths and scream towards the parking lot behind Womenservices.
Station owner Walter Kolodziej described the scene when a customer pulls into the station's driveway: protesters "would run up to the car, try to give pamphlets, try and put [pamphlets] through the windows, put [pamphlets] on their windshields." (Tr. at 1027). Station patrons whose cars are stopped by protesters are left "halfway in the driveway, halfway out in the street," leaving them vulnerable to getting into accidents with passing vehicles. (Tr. at 1023). Protesters have repeatedly trespassed on Mr. Kolodziej's property while approaching his customers, and they persist despite his repeated requests that they leave his customers alone.
Protesters also walk back and forth across the station's driveways at a "[v]ery very slow" pace, "[l]ike a stuttering step, where they almost stopped and then made another [step] and made another. It was as if they really didn't want you to come in there." (Tr. at 1130). At times, protesters just stop in the middle of the driveway. Despite repeated requests from the station owner, the protesters refuse to stop blocking the driveways by walking back and forth across them. These activities impede public access to the service station.
The service station has never encountered similar problems arising from ordinary pedestrian traffic near the station.
Before the TRO, defendants also congregated around the entrance to the dry cleaners that lies just to the south of Womenservices. The cleaner shares the apron of the Womenservices' driveway. Customers for the cleaners enter the driveway, then immediately turn to the left where they park briefly in front of the cleaners. Cars are sometimes parked two abreast in the area in front of the cleaners. This area gets quite congested. If protesters are in the driveway area, entering cars are "trying to avoid them, sometimes the protesters go over into the cleaners' parking lot to try to give [customers] literature, so [customers] have to watch out for [protesters] there also." (Tr. at 305). Between the members of the public using the cleaners and the protesters, cars "sometimes can't get in, so they have to back up and pull out and park along Main Street." (Tr. at 305).
(5) Entering Into Streets
The evidence shows that the general public is also endangered when defendants take their protests into the streets near the clinics. In Buffalo, protesters regularly stand in Main Street in front of Womenservices, sometimes with signs (Plaintiffs' Exhibits 28, 30, 31, 120-B), and approach drivers and attempt to hand out literature. Sometimes, they even chase cars into the street.
On occasion, when Womenservices' patients mistakenly turn into the neighboring service station and then turn back into Main Street, protesters follow their cars into Main Street and to the driveway of Womenservices. Defendant Roseanne Sutter is among the defendants who have acted in this manner.
In Rochester, defendant Bill Smith sometimes holds his signs while standing in the street on University Avenue in front of Rochester Planned Parenthood. (Plaintiffs' Exhibit 66). Defendant Melfi has at times approached cars in the street. (Plaintiffs' Exhibits 65-66). When this happens, drivers are forced to slow down or stop abruptly, thus posing a risk of accidents in the street.
(6) Dangers to Clinic Staff, Clients, and the Public Created By Defendants' Activities
Defendants' conduct in and around the driveways of reproductive health facilities create substantial dangers for staff and patients entering and leaving these facilities, as well as for members of the general public who happen to drive by. Defendants distract and block the visibility of drivers attempting to enter and exit the clinic driveways.
At the hearing, the Court heard expert testimony from Buffalo and Rochester police officials about the serious traffic safety hazards that defendants' conduct creates for motorists passing by the defendants' protest locations, as well as for patients and staff seeking to enter these reproductive health facilities.
Buffalo Police Officer Thomas Tully testified that the protesters' quick approaches to cars in the Womenservices' driveway raise concerns "with the safety of the pedestrian that's approaching the car, and also with the distraction of the driver." (Tr. at 3281). The signs they place in and around the apron of the Womenservices' driveway block the vision of departing drivers, creating risks of collisions with vehicles driving past Womenservices.
When cars cannot turn promptly into Womenservices and the neighboring service station because of protesters' activities in their driveways, the cars block a traffic lane, and "[a]ny time a lane of traffic is blocked, it increases the driving hazard. And people tend to change lanes when they can't stay in their same lane and keep moving, and often change lanes unsafely without using turn signals, pulling out to get around the obstacle that's blocking traffic." (Tr. at 3262).
Protesters who stand in the Womenservices and service station's driveways with their backs to Main Street while screaming toward the Womenservices' parking lot are "in danger of being hit by a car. Also . . . they are creating a hazard, in that they're not allowing the cars to get off of Main Street." (Tr. at 3264). Those who stand in Main Street or who approach cars in the street "interfer[e] with a lane of traffic" and with "cars exiting [the] driveway, as well as entering it." (Tr. at 3270-71). When protesters follow cars out of the service station driveway into Main Street, they create a hazard to themselves, and "a distraction to people driving on Main Street," thus producing another traffic hazard. (Tr. at 3265).
Rochester Police Department Captain Johnston testified that the practice of slow walks across the Rochester Planned Parenthood driveway creates a risk of accidents involving cars that are hung-up in University Avenue because they cannot turn into the driveway. The presence of protesters in the driveway both prevents drivers from being able to turn into the driveway, and makes it difficult for drivers to get out into the street safely. It creates a risk that a turning car will stop abruptly upon seeing the protester, and be rear-ended in the street. It also creates a safety risk for the protester. Holding signs near the driveway at windshield level obstructs the view of an exiting driver. The presence of signs together with the use of the bullhorn creates a further risk, in part because, according to Captain Johnston, "people that are going in and out [of Planned Parenthood] are quite nervous." (Tr. at 3969-70). Captain Johnston also testified that the presence of a protester in the roadway creates a safety hazard, both for the protester and for passing motorists.
Rochester Planned Parenthood guard Thomas Nagel served in Rochester's police department for over twenty-three years, spending the last five years on an accident investigation unit. Before his retirement from the police force, he was a state-certified accident reconstruction specialist. Nagel testified that defendants' presence in the driveway causes several distinct traffic safety risks for cars in University Avenue, whether they are in passing traffic or are attempting to enter the Planned Parenthood parking lot: (1) the risk that a car waiting to turn left into the driveway could get rear-ended by another car traveling in the same direction; (2) the risk that a car that has begun the left-hand turn but is unable to complete it because of the protesters' presence in the driveway could be hit by a car traveling in the opposite direction; and (3) the risk that a car would swerve around a vehicle that is waiting to turn right into the driveway.
Witnesses confirmed that these risks are not mere speculation. Witnesses have seen minor accidents, which they described as "fender benders" outside Buffalo Womenservices, caused by the activities of protesters. (Tr. at 1215-17, 1431). In addition, near accidents are common near the reproductive health facilities that have been targeted by defendants. Buffalo Police Officer Thomas Tully, who has been present outside Womenservices on a number of Saturdays, testified that he has seen "near accidents" at that location. (Tr. at 3294). Walter Kolodziej, the owner of the service station next to Womenservices, has also seen near accidents caused by protesters' activities. "[M]any a times" he has heard the sound of cars in Main Street "slamming the brakes on. And the tires are squealing [sic]. Because they have [had] to make a quick stop. . . . [b]ecause the protesters are in the [service station] driveway." (Tr. at 1024). Womenservices' security guard Richard Walkner also testified that "[w]e've had many many near misses" in the driveway at Womenservices, due to the presence of protesters. (Tr. at 1338, 1341).
(7) Risks to Defendants
Defendants' conduct also endangers the defendants, themselves. When defendants approach cars in the driveways of the clinics, or worse yet, when they approach cars in the street, they obviously run the risk of being struck by a car and injured. Further, in the winter, defendants sometimes stand on snow banks next to the street and driveways and run the risk of slipping and falling into the street.
Defendants also put themselves at risk by not paying attention to all the traffic around them. For example, defendant Melfi sometimes stands with her back to the street while she is in the middle of the driveway at Rochester Planned Parenthood, talking through a megaphone to patients entering the clinic. On one occasion in the winter of 1998-99, when it was snowy, there was a lot of slush on the ground, and a car turning into the driveway slid into Melfi's leg.
Defendants are also endangered because patients not wanting to engage in conversation with them, often turn in and out of the driveway quickly, causing defendants to have to get out of the way quickly.
Defendants further create a danger for themselves by yelling and screaming at patients entering the clinics and calling them names, such as "baby killers" and "murderers." Such conduct often provokes a hostile response from the patients, their families and friends. This is particularly true when the patient is not even there for an abortion. Plaintiffs' facilities offer a broad array of services other than abortion, such as routine gynecological care, post-rape counseling, birth control prescriptions, treatment of sexually transmitted diseases, prenatal care, or other health services. Patients arriving to receive these nonabortion services find it particularly disconcerting to be yelled at and called names. The clinic staff often must spend considerable time and effort in persuading patients and those accompanying them not to engage in a verbal or physical dispute with the defendants when they leave the site. For example, with regard to defendant Mary Melfi, nurse Rebecca Waters testified that, "[The patients'] partners often want to go out and fight Mary, and I've had to talk them out of it. . . . I just tell them . . . don't do it . . . she'll call the police and they'll go to jail." (Tr. at 2778).
b. Defendants' Interference with Public Use of Sidewalks
The evidence adduced at the hearing showed that there are two types of protest activities that interfere with the public's use of sidewalks: (1) groups of protesters occupying the sidewalk; and (2) protesters making aggressive and inappropriate approaches to passersby that discourage their use of the sidewalk.
(1) Blocking the Sidewalks
Defendants and other protesters often form up in big groups on the sidewalk in front of Womenservices, thereby blocking the sidewalk so that others cannot get by. They gather in the portion of the sidewalk in front of the clinic that lies between the fifteen-foot buffer zone surrounding the front door and the fifteen-foot buffer zone for the clinic's driveway. The protesters are sometimes lined up shoulder to shoulder, so that there is no room to walk between them without pushing them out of the way.
Protesters are often present in the area in front of Womenservices on weekdays during the morning hours, when parents are walking their children to the local public school, P.S. 54. Gina DiChiara, a neighborhood resident and mother of five children, testified that she has been walking her children to P.S. 54 past 2500 Main Street for years, both before and after Womenservices moved into that location. She testified that when she would ask the protesters to move, defendants, including Robert Behn, John Urgo and Hettie Pascoe, refused, stating that they had a right to be there and did not have to move. As a result, until the new buffer zone was put in place by the TRO, DiChiara and her children, as well as many other pedestrians, regularly walked directly into Main Street during rush hour to get around the protestors. Pedestrians forced into the street by the protesters' activities often included parents walking their small children to P.S. 54. Some passersby, including parents with children, avoid the protesters by crossing to the opposite side of this busy street and then recrossing to continue their trip.
Rochester Planned Parenthood is the site of monthly "rosary marches," led by defendant Norman Weslin with the participation of the defendant organization Lambs of Christ. From the time these marches began in late 1995 or early 1996 through 1997, they have been characterized by large crowds of people on the sidewalk moving very slowly, thereby making it difficult, if not impossible, for other pedestrians to use the sidewalk. In fact, Rochester Police Officers often instruct other pedestrians walk along the roadway until they get beyond the demonstration. (2) Aggressive Approaches to Passersby
During these marches, the marchers also block the driveways to the clinic. During more recent marches, the driveway has been kept open by police who escort the march.
Defendants in Buffalo also aggressively approach and harass passersby. Gina DiChiara testified that on one occasion, she had told defendant John Urgo to leave her and her children alone as they were walking to school. As she and one of the children passed Womenservices on their way back home, Urgo hit DiChiara with a sign, giving her a black eye and a split lip.
DiChiara called the Buffalo police, who took Urgo into custody. After a court proceeding, DiChiara was given an order of protection against Urgo.
Womenservices' guard Richard Walkner testified about his observations of another altercation between defendant Urgo and a passerby:
[A] neighbor, who worked down the street at a youth center, would be accosted by protesters from time to time. And she had informed them many times that she was not interested. And on that particular day she was approached by [defendant] John Urgo, who had some words with her, and the woman had some words to say back. . . . I observed John Urgo take the flat of his hand and strike the woman in the chest area, sending her backward a foot or two.
(Tr. at 1415-16).
Defendants continue to approach and harangue area residents even when they have been repeatedly asked not to. For example, Gina DiChiara described what it is like as a resident of the neighborhood to use the sidewalk in front of Womenservices: "they would stop me, try to give me literature. . . . And I had asked them repeatedly not to. And by now, I was very angry and upset." (Tr. at 822). "[P]rotesters [would] yell at me as I was walking by with my children, not to go to the clinic and have an abortion." (Tr. at 844).
The Buffalo protesters also interfere with use of the Niagara Frontier Transit Authority bus stop that is right in front of Womenservices. The protesters gather around the bus stop, posting signs, and placing their signs on the bench meant for bus riders. Bus patrons often cannot use the bus stop and must walk out into the street to get the bus driver's attention or to get around the crowd.
C. History of Anti-Abortion Protest Activity in this District
As stated above, the dispute between the plaintiff healthcare providers and anti-abortion protesters in this District has been going on for many years. The history of this dispute has created the context for the instant action and is relevant to the issue of liability under FACE and public nuisance law of certain individual and organizational defendants in this action.
1. Buffalo
As stated above, this case is, in essence, a continuation of the case of Pro-Choice Network of Western New York v. Project Rescue Western New York, 90-CV-1004A. First filed in 1990, thePro-Choice case resulted in a preliminary injunction issued February 14, 1992, which, as modified, remained in effect until it was superseded by the TRO in this case.
In the Spring of 1992, shortly after the Pro-Choice preliminary injunction was initially issued, anti-abortion protestors conducted large-scale demonstrations in Buffalo known as the "Spring of Life." Spring of Life protesters physically blockaded access to reproductive health facilities in 1992, including the office of plaintiff Shalom Press, M.D., at 2550 Sweet Home Road in Amherst, and the former location of plaintiff Buffalo GYN Womenservices, at 1241 Main Street. At 1241 Main Street, people congregated in front of the only driveway and laid down in it, making it impassable. Several protestors, including many of the defendants, were arrested. According to uncontested testimony, defendants Eva Boldt, Smith Chamberlain, Gerald Crawford, Dan Drury, Eric Johns, Paul Koehn, Sharon Murphy, Rosina LoTempio, Mary Powley, Roseanne Sutter, Jerry Sutter, Michael Warren and Calvin Zastrow were among those arrested during the blockades. The protests violated the terms of the preliminary injunction and contempt charges were lodged against some of the protests' leaders.
Also in evidence are certificates of conviction from the Town of Amherst for arrests during the Spring of Life regarding defendants Boldt, Crawford, Koehn, Jerry Sutter and Zastrow.
In 1993, protestors led by defendant Eric Johns conducted another blockade of Womenservices. This time, however, the protestors brought children to the clinic and had them walk and mill around in the clinic's driveway and in front of the clinic's front doors, thereby blocking access to the clinic. Some of the defendants, including Hettie Pascoe, Dennis Marriott, and Nancy Walker, instructed the children as to what to do and how to behave. Several similar actions in which children blocked access to Womenservices under the direction of defendants and other adults took place in approximately 1993. The clinic ultimately pursued contempt charges against defendants Nancy Walker and Hettie Pascoe in connection with these protests.
2. Rochester a. Genesee Hospital
Paul McManus, assistant director of security for Genesee Hospital from 1985 to 1998 and director of security of that facility since 1998, testified at length about the sixteen-year history of anti-abortion protests at that facility. His testimony focused on the participation of defendants Gerald Crawford, Michael Warren, Mary Beth Powley and Rescue Rochester in these protests, which have actually included unlawful invasions of medical offices on hospital property where abortions are performed.
Rescue Rochester is a Rochester-based organization that is modeled after or affiliated with defendant Operation Rescue National.
A medical office building located at 220 Alexander Street in Rochester, on the Genesee Hospital campus, includes two private medical offices where abortions are performed. The organization Rescue Rochester has conducted demonstrations at this location for approximately ten years. Security Director McManus considers defendants Gerald Crawford and Michael Warren to be the leaders of Rescue Rochester, based on their "[a]ctivities outside the hospital, weekly protest activities, addressing the group, seeing them conduct rescue missions inside the building. And also [they] identified themselves to [him] as leaders. . . ." (Tr. at 3049).
Defendant Crawford has been involved with anti-abortion demonstrations outside Genesee Hospital for ten to thirteen years. Defendant Warren has also taken part in these protests. These demonstrations at times involved as many as eighty protesters, who crowded the sidewalks so that pedestrians had to walk in the street. Cars were stopped in the driveways as protesters offered literature. The presence of large numbers of protesters right next to the driveway, some holding signs next to the exits onto the streets, obstructed vision for drivers leaving the hospital grounds and going onto Alexander Street.
Defendant Crawford also took part in approximately six so-called "rescue missions" at Genesee Hospital. During these demonstrations, demonstrators come onto the property, enter into the building, occupy an office or hallway or both, and refuse to leave when asked to do so. The participants range in numbers from ten or twelve to more than fifty individuals. McManus described how a "rescue mission" blocks access to reproductive health services: "Normally when a rescue mission occurs, the entrance and exits to that suite are blocked. People have not been allowed in or out. The hallways are congested with protesters. So essentially the services provided by that [office] are shut down." (Tr. at 2961).
In 1989, the hospital obtained a permanent injunction in New York State court against defendant Crawford and others. The Genesee Hospital v. Divine Nature Ministries, Inc., et al., Index No. 1528/87 (Sup.Ct. Monroe County), Judgment dated February 8, 1989 (Plaintiffs' Exhibit 79). The enjoined activities included picketing or conducting other protest activities within ten feet of the drives, entrances or exits of Hospital property and entering onto hospital property except for purposes of medical care. (Id. at 2-3). In violation of the permanent injunction, Crawford participated in obstructive protests outside Genesee Hospital at least six times after it was issued. He also participated in "rescue missions" in violation of the injunction, some of which resulted in his arrest for trespassing. Defendant Warren has also been arrested for trespassing because of his participation in "rescue missions" at Genesee Hospital.
On May 21, 1994, in violation of the state court injunction as well as this Court's prior preliminary injunction, defendants Crawford and Warren led a "rescue mission" of approximately eleven people at the 220 Alexander Street medical office building. Access to and from the targeted medical office was blocked for approximately two and one-half hours on that date. Defendant Mary Beth Powley was one of the participants in that "rescue mission." Crawford, Warren and Powley were all arrested for criminal trespass and resisting arrest after they refused to leave the premises.
On May 8, 1996, defendants Crawford, Powley and Warren were among a group apprehended as they trespassed on hospital property, distributing anti-abortion literature in violation of hospital policy. Powley was distributing literature on patient floors; Warren was distributing literature in a professional medical office building; and Crawford was placing literature on vehicles in the hospital's ramp garage. McManus directed that all three individuals be arrested for trespass, because they had been previously warned to stay off the property and had been previously arrested for trespass activities.
On June 3, 1996, the Genesee Hospital security department received word that defendant Crawford had entered an office where abortions are performed and was harassing two persons inside. A responding security officer saw Crawford leaving the building and asked him to stop. Instead, Crawford began to "jog" away. (Tr. at 2999-3000). When the officer touched Crawford's elbow to get his attention, Crawford turned and pushed the officer. Crawford was then taken into custody, and was charged with criminal trespass and harassment.
Rochester Police Department records, which McManus compared with Genesee Hospital security department records, show that defendant Powley was convicted for trespasses at Genesee Hospital on May 21, 1994 and May 8, 1996; that defendant Crawford was convicted on trespass and other charges arising out of his activities at Genesee Hospital on April 26, 1989, December 1, 1989, March 29, 1990, May 21, 1994 and June 3, 1996; and that defendant Warren was convicted on trespass and other charges arising out of his activities at Genesee Hospital on April 12, 1989, December 1, 1989, March 29, 1990, May 21, 1994 and May 8, 1996. (Plaintiffs' Exhibits 111-113).
Genesee Hospital continues to experience threats to the security of its premises from anti-abortion protesters. McManus testified that on August 13, 1999, one of the offices where abortions are performed was the subject of a "bioterrorist threat" which involved a threatened use of anthrax, a biological agent. (Tr. at 3024). The office received a letter that, as described by McManus, stated, "Abortion is murder, abortionists . . . then there was a blank line drawn with an exclamation point, and it said or stated, anthrax enclosed." (Tr. at 3025-26). The receipt of this letter shut down the entire building. None of the patients, visitors or staff were allowed to enter or exit the building or utilize the elevators. The shutdown closed approximately seventy medical offices for one and one-half hours.
The next day, a van pulled into a no-parking zone on hospital property in front of the 220 Alexander building. The individuals who got out of the van falsely claimed to have an appointment at the same office involved in the anthrax incident the previous day, raising suspicion about the individuals' activities. Security officers then saw the driver of the van talking with defendants Crawford and Warren.
b. Rochester Planned Parenthood
Rochester Planned Parenthood began providing abortion services in the fall of 1993. Soon thereafter, defendant organization Rescue Rochester staged what it called a "siege" of Rochester Planned Parenthood. Defendants Gerald Crawford and Michael Warren both exercised leadership roles in the "siege." During the one-week "siege," protesters ranging in numbers from ten to eighty walked back and forth in front of the entire length of Rochester Planned Parenthood's property along University Avenue, impeding access to the facility by crossing back and forth in front of its driveway. Defendants Crawford and Warren were present outside Rochester Planned Parenthood during the "siege," but neither made any effort to prevent protesters from impeding access to the facility's driveway.
The protesters were within the buffer zone created by this Court's preliminary injunction in the Pro-Choice case. Defendant Gerald Crawford is also a named defendant in that action, and was therefore obligated to "make a good faith effort" to prevent others from obstructing access to Rochester Planned Parenthood or otherwise violating that injunction. See Pro-Choice, 799 F. Supp. at 1441.
After the "siege," defendants Crawford, Warren and Rescue Rochester encouraged and participated in weekly protests at Rochester Planned Parenthood on Saturdays. Defendant Powley was present during the Rescue Rochester "siege," and she also sometimes participated in these Saturday morning protests at Rochester Planned Parenthood. Powley typically stood inside the buffer zone, approached patients in an aggressive and threatening manner, and shouted loudly at patients going into the building.
On one occasion, in 1995 or 1996, Powley actually grasped a patient by the arm in an apparent attempt to slow the patient down so that Powley would have a greater opportunity to talk to the patient. The patient struggled to free herself from Powley's grasp and was "very upset" after the incident.
In approximately May 1996, protesters began to hold large marches at Rochester Planned Parenthood on Saturday mornings. As stated above, these marches were referred to as "rosary marches." Defendant Norman Weslin, a Catholic priest, was one of the leaders of the marches.
During these "rosary marches," protestors filled the Rochester Planned Parenthood driveway and the sidewalk in front of the clinic, thereby impeding ingress to and egress from Rochester Planned Parenthood. Protestors would also sometimes spill into the street. Noise from the marches carried into the Rochester Planned Parenthood building.
At or around the time of the first "rosary march," the protesters also escalated the frequency of their other activities outside Rochester Planned Parenthood, coming regularly on Tuesday evenings and Saturday mornings. The protests became louder, more obstructive, and more stressful to patients and staff.
On December 7, 1996, protesters conducted a physical blockade of Rochester Planned Parenthood. (Plaintiffs' Exhibit 78 (United States v. Weslin, 97-CR-6021L (W.D.N.Y.), Stipulation)). That morning, protestors arrived before the clinic opened and attached themselves in various ways to the building, to objects located near or around the building, and to each other, thereby blocking access to the clinic. For example, one protestor attached himself to a disabled car blocking the main entrance of the clinic. Six other protestors attached themselves together at the staff entrance. Two doors in the rear of the building were also blocked. At one, a protestor glued his forehead and the palms of his hands to the door. At the other, a protestor had taken a staff picnic table, turned it up on end, pressed it against the door, and attached himself by the neck to the table with a U-shaped kryptonite bicycle lock. The only remaining door to the clinic was blocked by two protestors who locked themselves together by their necks with U-shaped bicycle locks.
Defendants in the criminal prosecution that arose from this incident agreed to a stipulation of facts about the December 7, 1996 blockade and that stipulation has been admitted into evidence in this case. (Plaintiffs' Exhibit 78). The defendants in this case who participated in the blockade include: Barton Chamberlain, Karen Jackson, Daniel Lamantain-Leatherman, Arnold Matheson, Robert Raco, Randolph Smith and Norman Weslin.
Lt. Keenan of the Rochester Police Department testified that defendant Weslin appeared to be the leader of the blockade, and that the defendant organization Lambs of Christ was also involved. Lt. Keenan observed that Father Weslin's ability to command adherence to his directives from his followers is such that when one of the protesters who was locked by the neck to another requested permission to unlock himself because he feared he was having a heart attack, the protester was not released from the lock and followed Father Weslin's direction to continue blocking the Planned Parenthood door.
The blockade delayed the beginning of patient services approximately forty-five minutes, at which point a single door in the back of the building was opened. Removing the blockaders required the efforts of fourteen police, fire and emergency personnel. Even after gaining access, the clinic could not operate normally. Patients encountered obstructions outside, and were forced to come through the far back door, through some storage rooms. Patients and staff were upset by the incident, thereby making it difficult to provide safely health care.
D. TRO has been an Effective Law Enforcement Tool and Still Provides Defendants Effective Avenues of Communication
The TRO differs from this Court's prior preliminary injunction issued in Pro-Choice case in several respects: (1) it establishes larger buffer zones at Buffalo Womenservices and Rochester Planned Parenthood; (2) it excludes defendants from those zones entirely; (3) it reaches defendants who were not parties to the Pro-Choice case; and (4) it reaches all reproductive health facilities in the Western District, rather than only those facilities that perform abortions.
Since it was issued, the TRO has proven to be an effective law enforcement tool. The TRO was issued shortly before the scheduled beginning of OSA, a week of demonstrations in the Western District that, as discussed below, threatened to be a reprise of the 1992 Spring of Life demonstrations. With the TRO in place, there were no disruptions of clinic access during the OSA protests. Further, in the months since it was issued, the TRO has effectively eliminated the barriers to clinic access and the public safety hazards that existed despite the prior preliminary injunction. This is true, in part, because the TRO reaches parties who were not named in the prior court action and new locations. Law enforcement officials testified at the hearing that the TRO is valuable not only in protecting clinic access and public safety, but also in maintaining the crucial public perception that police agencies are neutral in the emotionally charged abortion debate. Finally, the uncontested evidence shows that defendants remain able to communicate their views freely and effectively outside facilities protected by the TRO. 1. TRO's Effectiveness During Operation Save America
In late October 1998, leaders of the anti-abortion movement announced that they would hold a week of protests in the Western District from April 18-25, 1999, to be known as Operation save America. Reproductive health service providers and law enforcement agencies began to prepare for potential disorder at reproductive health facilities, and the New York State Attorney General, together with private plaintiffs, filed this action seeking a TRO to protect access to these facilities during OSA while preserving public order. As stated above, on April 15, 1999, this Court granted plaintiffs' motion for a TRO, finding that plaintiffs had demonstrated by a preponderance of the evidence that they would suffer irreparable harm if injunctive relief were not immediately granted, and a likelihood of success on the merits of their claims.
As detailed below, plaintiffs' uncontested evidence during the TRO and preliminary injunction hearings established: (1) that organizers of OSA created a realistic threat that the event would disrupt access to both abortion providers and facilities providing reproductive health services other than abortion; and (2) that numerous defendants, both individuals and organizations, participated in organizing and publicizing that week's events.
Organizers of OSA, including defendant Robert Behn, head of organizational defendant Last Call Ministries, announced the event at a press conference almost immediately after the assassination of local abortion-provider Dr. Barnett Slepian. The press conference was held in front of Dr. Slepian's office and organizers intimated that the event would be a reunion or reprise of the disruptive Spring of Life demonstrations which occurred in 1992.
The threat that the announced OSA would be a reprise of the 1992 Spring of Life intensified when, in early January 1999, defendant Phillip "Flip" Benham, director of defendant Operation Rescue National, held a press conference at 1241 Main Street, the former site of Buffalo Womenservices, where there had been very vigorous, obstructive protests during the Spring of Life events. In the news release issued by Operation Rescue National, Benham drew a direct parallel with the Spring of Life, declaring that when the "'Spring of Life' campaign" took place in April 1992, Buffalo had six abortion providers: "Today there are only two . . . and we pray, by year's end, both will be history." (Plaintiffs' Exhibit 70). In the same news release, defendant Robert Behn declared that "Buffalo has once again become a flash point in the national abortion battle." (Id. (emphasis added)). These defendants called on people from "across the nation" to gather from April 18 to April 25, 1999, for actions that would take place "in the streets of Buffalo and Rochester." (Id.). A newsletter issued by defendant Last Call Ministries in the months before OSA furthered the connection, coupling a large photograph of a protester being dragged away from a blockade at the office of plaintiff Dr. Shalom Press in Amherst with an invitation to participate in OSA in Buffalo and Rochester on April 18-25. (Plaintiffs' Exhibit 101).
Deputy United States Marshal John Coad testified about the law enforcement response to OSA, which he described as "a reunion" of "Spring of Life activities from 1992." (Tr. at 3527). Deputy Marshal Coad was in charge of the United States Marshal detail present during the 1992 protests at Buffalo Womenservices, and one of a group of law enforcement officials and agencies who met regularly to prepare for OSA. He identified defendants Operation Rescue, Last Call Ministries and the Lambs of Christ as among the organizers of OSA, as well defendants Flip Benham, Robert Behn and Norman Weslin.
Agencies that participated in these meetings included the New York State Police, the Erie County and Genesee County sheriff's departments, the police departments of Amherst, North Tonawanda, Rochester, and Batavia, and the Federal Bureau of Investigation and Bureau of Alcohol, Tobacco and Firearms.
In Deputy Marshal Coad's assessment, absent judicial intervention, the OSA demonstrations had the potential for being more violent and more difficult to control than those that took place in 1992. For example, Deputy Marshal Coad personally heard defendant Benham state that "over sixty thousand invitations had been sent out" for OSA. (Tr. at 3533). He also learned that defendant Weslin "informed law enforcement officers that his organization would be present at the blockades." (Tr. at 3586). Deputy Marshal Coad also had concerns based on the Operation Rescue Internet website. There he found an article titled, "Operation Save America! April 18-25. The Revolution Continues!" which exhorted, "Gentle Christian warriors have thrown aside the cumbersome armor of Saul (trying to elect governmental officials to legislatively fight the battle for us) and are storming the gates of hell." (Plaintiffs' Exhibit 71). This suggested to Deputy Marshal Coad that "at the very least, blockading the clinic, or storming the gates of hell, which is what they referred to as abortion clinics . . . may not be the minimum possibility of what they may be prepared to do." (Tr. at 3726-27). The same website posting stated, "We are going to Buffalo and Rochester this April in Jesus Name, not loving our own lives so much as to shrink from death." (Plaintiffs' Exhibit 71). According to Deputy Marshal Coad, this statement "could be a request for an individual to not be afraid to die in order to accomplish their storming of the gates, or . . . whatever other action they may have chose[n] to do." (Tr. at 3728). Another website posting that Deputy Marshal Coad reviewed referred to the 1992 Spring of Life events and described Buffalo as "an epicenter of a cultural war, the war between two seeds . . . that is ripping our once great nation apart. God is calling us to war, brothers and sisters! . . . It is our duty. No, it is our privilege to bring this Gospel to the gates of hell in Buffalo, New York." (Plaintiffs' Exhibit 72). Deputy Marshal Coad noted that this Operation Rescue National website named defendant Robert Behn, head of defendant Last Call Ministries, as the local contact for these protests. (Plaintiffs' Exhibits 71-72).
Deputy Marshal Coad testified that he expected other Buffalo-based defendants to take part in OSA because he knew them to be members of defendant Last Call Ministries. He also was personally familiar with the activities of some of these defendants from the 1992 protests.
Other aspects of defendants' publicity for OSA reinforced the expectation that they planned to repeat the blockades and other illegal activity of the 1992 demonstrations. For example, in an article titled, "An Invitation to Operation Save America," that defendant Calvin Zastrow contributed to the March 1999 Operation Rescue National Newsletter, he recounted being arrested during the 1992 Spring of Life in "the first big rescue in Amherst," and described the importance of being willing to sacrifice "comfort and liberty" to combat legal abortion. (Plaintiffs' Exhibit 73). The article stated: "Far from burying Operation Rescue, 'Buffalo' is still the rallying cry to peaceful Christian rescuers who know that lawsuits, persecution, and imprisonment won't stop us." The article also urged readers to come to OSA.
Genesee Hospital security director Paul McManus testified that he spent several months preparing for OSA. McManus identified defendant Flip Benham as one of the national organizers of OSA, and defendants Michael Warren and Gerald Crawford as Rochester leaders of the event. McManus was concerned about any threatened use of force and violence, based on his hospital's experience with the "rescue missions" defendants Crawford and Warren had organized on many occasions, as well as past incidents of criminal mischief and threats of violence to the hospital.
The Operation Rescue National website identified "Bob and Bonnie Behn, Mike and Jean Warren, and Jerry and Terry Crawford" as "preparing the way" for OSA. (Plaintiffs' Exhibit 73).
As part of his planning for OSA, McManus also spoke individually with defendant Crawford. Crawford told him "that they were not planning a rescue mission at that time; however, they were collecting pledge forms." (Tr. at 3012). Because McManus was aware that such "pledge forms" were often collected from potential protestors before "rescue missions" at Genesee Hospital, he took Crawford's statements to indicate the possibility that a "rescue mission" might occur as part of OSA. McManus interpreted Crawford's statement that no "rescue mission" was planned "at this time" to mean "[t]hat they didn't have concrete plans or support for a rescue mission at that point . . . but that the potential was there." (Tr. at 3014). McManus testified that Crawford's demeanor in this meeting was such that he believed that Crawford was withholding information about the plans for the event from him.
In McManus's experience, "[T]he participants of rescue missions would sign pledge forms, pledging to engage in peaceful activities, that they wouldn't act in a violent way. . . . It was a pledge to the organization that they would be involved in that rescue in a peaceful nonviolent way. . . ." (Tr. at 3012-13). Plaintiffs' evidence includes the pledge form that was being collected. (Plaintiffs' Exhibit 101). Rather than pledging obedience to the law, participants pledged "to cooperate and obey the instructions of the OSA leadership team." (Id.).
McManus testified that defendants Crawford and Warren had never given him or the Genesee Hospital security department prior warning of their "rescue missions."
The evidence adduced at the hearing showed that the TRO gave local and state law enforcement agencies an effective tool to ensure that there were no disruptions of reproductive health care during OSA. Captain Mark Fischer of the New York State Police, who was in charge of OSA planning for the State Police in the Rochester area, testified that the TRO "clearly established boundaries. . . . [I]t made clear to whichever side the protesters were on . . . where they could go and where they couldn't go, and prevent[ed] any conflicts between the two groups." (Tr. at 4016-17). Captain Fischer was present at Dr. Morris Wortman's office during OSA. He testified that because of the buffer zones, maintaining access to that reproductive health facility was "quite easily accomplished." (Tr. at 4018). Moreover, the buffer zones prevented conflicts between pro-choice and pro-life demonstrators at that site. Captain Fischer attributed the "peaceful" nature of the demonstrations he observed at Dr. Wortman's office to the presence of law enforcement, the TRO, and the potential of civil penalties for violating the TRO. (Tr. at 4018-19).
Captain Stephen Koster, who has been with the Monroe County Sheriff's Office for eighteen years, explained how the buffer zones created by the TRO were useful for law enforcement agencies as they planned how to deal with OSA: "[F]rom a tactical or an operational standpoint, the more space or the larger space the better, because space in and of itself can act as a barrier, and give the police a little bit more room to control whatever they have to do." (Tr. at 4065-66).
In sum, the undisputed evidence shows that the TRO was successfully enforced during OSA. Backed by the expanded buffer zones, law enforcement ensured that there were no disruptions of reproductive health care during OSA.
2. TRO Effectively Addresses Access and Safety Problems a. Limitations of the Prior Preliminary Injunction
The evidence adduced at the hearing established that in the years after the Court issued the preliminary injunction in thePro-Choice case, circumstances changed so that, as Deputy Marshal Coad testified, by 1998, the order "fell a little bit short," (Tr. at 3723), of fully protecting access to reproductive health facilities in the Western District and preventing the traffic and safety hazards that were among the objects of that injunction. See Pro-Choice Network, 799 F. Supp. at 1434 ("[t]he 'clear zones' are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded"). In particular, as discussed above, the presence of self-designated "sidewalk counselors" in and near driveways created significant safety hazards for the general public and for persons seeking access to these facilities in both Buffalo and Rochester. The evidence clearly established that defendants began viewing the "sidewalk counselor" provision as some sort of loophole in the injunction, allowing them to stand in the driveways and disrupt traffic in and out of the clinic.
Besides these driveway and traffic hazards, Deputy Marshal Coad testified that the prior injunction was deficient at Buffalo Womenservices in two additional ways: (1) protesters could and did block the entire sidewalk in front of the clinic, while remaining within the parameters of the prior injunction; and (2) protesters were permitted so close to the clinic that they could make themselves heard inside the clinic. At the hearing, plaintiffs offered evidence showing that the differences in layout between 1241 Main Street (the location of Womenservices when the prior preliminary injunction was issued) and the current location limit the prior preliminary injunction's effectiveness at the current site. In the old location, where the clinic driveway was located around the corner and down the block from the clinic doorway, there was a large area between the driveway buffer zone and the doorway buffer zone. By contrast, at the current location, there is a small area directly in front of the clinic that lies between the two buffer zones which gets clogged with protesters. The presence of the driveway right next to the current facility also has an impact on the effectiveness of the prior injunction because at the current location, protesters who shout down the driveway can be heard inside the facility, including in the surgical recovery room. In addition, at the present location, all the rooms in the clinic are located closer to Main Street. Thus, the noise created by protestors has a greater effect inside the clinic at the current location.
Another problem with the prior injunction was that many of the current defendants were not named defendants in the Pro-Choice case, thereby hampering plaintiffs attempts to enforce the injunction against them. This was true for both Buffalo and Rochester.
A major problem with the prior injunction at Rochester Planned Parenthood was that the buffer zones were not large enough to eliminate noise inside the clinic. As noted above, protesters at Rochester Planned Parenthood could routinely be heard inside the building, even if they were standing outside the old fifteen-foot buffer zones.
Rochester Planned Parenthood did not perform abortions when the prior preliminary injunction was entered.
b. Effectiveness of the TRO
The uncontested evidence shows that the TRO has eliminated the access, traffic and safety problems caused by defendants' conduct, as discussed above. Since the TRO was issued, traffic has been able to move freely in and out of the driveways at plaintiffs' clinics. Protestors no longer block the driveways and their signs do not obscure drivers' vision. Further, the sidewalks in and around the clinics are no longer blocked by protestors, thereby allowing pedestrians to move freely along the sidewalks. The TRO has also eliminated the problem of protestors blocking the driveways of neighboring businesses.
The TRO has also significantly reduced the negative impact on health care caused by defendants' conduct. Patients no longer arrive at the clinic anxious and upset. Further, although the protestors can still be heard clearly outside the clinic, they can no longer be heard inside, thereby allowing health care to be delivered in a quiet, peaceful environment.
c. TRO Covers All Defendants at All Facilities
The evidence adduced at the hearing showed that the scope of the TRO, which reaches all defendants at all reproductive health facilities, has been important to its success. Deputy Marshal Coad's assertion that "all women's reproductive health clinics, regardless of whether they [are] performing abortion activity or procedures at that individual location, would be subjected to possible protest activity in the future," was uncontested at hearing. (Tr. at 3532). Indeed, the announced schedule of OSA activities included protests at the Batavia office of Planned Parenthood, which does not provide abortions. (Plaintiffs' Exhibit 101). In addition, defendant Melfi and other protesters have already appeared at Greece Planned Parenthood, which does not perform abortions. Moreover, it is impossible to predict which locations defendants will select for their targets. Even during the 1992 Spring of Life demonstrations, when law enforcement officials had developed a rapport with the protest leadership, they were unaware on a daily basis as to where the protest would take place. Thus, the applicability of the TRO to all reproductive health service providers has been important to its effectiveness.
The evidence also shows that defendants are a highly mobile group, willing and able to travel around the Western District to make their views known. For example, Rochester-based defendants Crawford, Powley and Warren were among those arrested during the 1992 Spring of Life protests in Buffalo and Amherst. Rochester-based defendant Melfi has appeared at at least three different reproductive health care facilities: Rochester Planned Parenthood, Greece Planned Parenthood, and Dr. Wortman's office in Brighton. Crawford and Warren generally focus their activities at Genesee Hospital in Rochester, but they came to Rochester Planned Parenthood on July 14, 1999 to demonstrate, and while there, they summoned defendants Smith and Melfi to join them. Warren took part in announcing OSA in Buffalo, and drove vans of people from one OSA protest location to another. Crawford was also involved in OSA activities in Buffalo. Defendant Weslin was at one point a leader of anti-abortion activities in Syracuse, then moved to Rochester, and then to Buffalo. By covering all defendants at all locations, the TRO has ensured clinic access and public safety throughout the Western District. 3. TRO is a Valuable Law Enforcement Tool
At the hearing, plaintiffs also presented evidence suggesting that defendants Melfi, Warren and Crawford may violated the TRO on various occasions. In fact, contempt proceedings for violating the TRO are currently pending against several defendants, including Warren and Crawford. In light of the pending contempt proceedings, the Court has chosen not to rely upon any evidence of alleged violations of the TRO in determining the motion for preliminary injunction. Accordingly, nothing herein should be construed as a finding of fact by the Court regarding the alleged violations of the TRO.
Law enforcement witnesses testifying at the hearing uniformly agreed that the TRO is an effective law enforcement tool. For example, New York State Police Captain Mark Fischer testified that when boundary lines for protests are laid out in advance, it helps to avoid the on-the-spot decision making that can lead protesters to claim the police are acting with favoritism. In his view, the TRO makes it much easier for the police to do their jobs.
Thomas Voelkl, the Police Chief of the Town of Brighton, testified that his police force has gone to the office of plaintiff Dr. Morris Wortman over two hundred times for reasons related to protesters' activities. Chief Voelkl testified that police goals include maintaining access to reproductive health care facilities, ensuring safety of patients and protesters, and protecting protesters' First Amendment rights. He explained that maintaining both the reality and the perception of police impartiality are "essential" to meeting these goals. (Tr. at 4081-82). According to Chief Voelkl, the TRO has helped to fulfill each of these goals.
Since the TRO was entered, Chief Voelkl has found that "there's a general understanding and compliance with the terms set forth in the [TRO]." (Tr. at 4085). Moreover, since the TRO took effect, the perception of the department's neutrality has, in his view, "shifted." (Tr. at 4093). Chief Voelkl explained that, before the TRO took effect, it was possible for the judgments of his officers to be "construed to be discretionary, as opposed to something very definitive and objective that is spelled out on a document issued by a court, that any officer with a tape measure can pretty much enforce without any subjectivity." (Tr. at 4093). 4. TRO Permits Defendants Effective Avenues of Communication
The views of Captain Fischer and Chief Voelkl were echoed by Captain Lynde Johnston of the Rochester Police Department and Captain Stephen Koster of the Monroe County Sheriff's Office.
The uncontested evidence shows that even where they are subject to the largest of the buffer zones created by the TRO — the zones at Buffalo Womenservices and Rochester Planned Parenthood — defendants remain able to effectively communicate their views to patients and staff at reproductive health facilities, and to the public at large.
At Womenservices, protesters now demonstrate further north or south on Main Street outside the buffer zone. Some demonstrate directly across the street from the clinic, outside the buffer zone. The protestors still carry signs which are visible to people driving in and out of the clinic. They also still approach people walking down the sidewalk, distribute literature to them, and convey their message; they just cannot follow the person into the buffer zone. The protestors still scream and yell and can be clearly heard outside the clinic.
In Rochester, the protesters now demonstrate on the sidewalk across the street from Rochester Planned Parenthood. As in Buffalo, they still carry signs and are able to communicate their message effectively.
Brighton Police Chief Voelkl testified that since the amended TRO took effect at Dr. Wortman's new location at 2020 So. Clinton Avenue, protesters can still be seen and heard by patients at Dr. Wortman's office.
DISCUSSION
To obtain a preliminary injunction, plaintiffs must establish "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998) (quoting Jackson Dairy, Inc. v. H.P. Hood Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). As demonstrated below, plaintiffs meet both parts of this test. Moreover, the injunctive relief requested serves a compelling governmental interest and is narrowly tailored so that it will impose no greater burden than necessary upon defendants' First Amendment rights.
A. Irreparable Harm
Plaintiffs have satisfied the first required showing for a preliminary injunction — that absent injunctive relief, they will suffer irreparable harm. To begin with, where, as here, a governmental plaintiff seeks injunctive relief under a statute that expressly provides for such relief, irreparable harm is presumed. Moreover, this Court already has held that illegal blockades and other disruptive actions of the very type carried out by defendants will cause irreparable harm both to the clinics providing reproductive health services and to the patients seeking such services. Pro-Choice, 799 F. Supp. at 1428. The same facts that led this Court to find irreparable harm in thePro-Choice case are present here as well.
As this Court and others have recognized, clinics may seek injunctive relief on their own behalf and on behalf of their patients and staff. Pro-Choice, 799 F. Supp. at 1427 (citingNew York State Nat. Organization for Women v. Terry, 886 F.2d 1339, 1348 (2d Cir. 1989)). Here, because the Attorney General is seeking injunctive relief on behalf of the People of the State of New York, including those clinic patients who are New York State residents, it is unnecessary for the clinic-plaintiffs to assert standing on behalf of their patients and staff.
1. Irreparable Harm Presumed
FACE expressly provides that the Attorney General of a State may seek injunctive relief in the federal courts to prevent violations of the statute. 18 U.S.C. § 248(c)(3). The statute's legislative history makes clear that, in enacting FACE, Congress believed that the conduct FACE was designed to eradicate was, per se, causing irreparable harm:
A nationwide campaign of blockades, invasions, vandalism, threats and other violence is barring access to facilities that provide reproductive health services. . . . This dramatically escalating violence is endangering the lives and well being of patients, providers, and their respective families. . . . This campaign of violence has lead to death, injury, harassment, fear and thousands of arrests all across the nation. It has resulted, as intended, in access to the constitutionally protected right to choose being denied to thousands of women nationwide against their will. The record before the Committee establishes that state and local law enforcement is often inadequate (and sometimes unwilling) to handle this situation [and therefore] Federal legislation is needed to put a stop to the violence and disorder and to restore access to constitutionally protected rights.
H.R. Rep. No. 103-306, 103d Cong., 2d Sess., at 6, reprinted in 1994 U.S.C.C.A.N. 699, 703.
Given this congressional mandate, the courts consistently have held that once plaintiffs demonstrate a likelihood of success in proving that FACE violations will occur, irreparable harm is presumed. United States v. Burke, 15 F. Supp.2d 1090, 1095 (D. Kan. 1998) ("the evidence presented here clearly establishes that [defendant] engaged in conduct prohibited by FACE on numerous occasions and intends to engage in such conduct in the future. Thus, irreparable injury need not be shown here"); United States v. Roach, 947 F. Supp. 872, 877 (E.D. Pa. 1996) (holding that once government had demonstrated likelihood of success on FACE claim, irreparable injury would be presumed); United States v. McMillan, 946 F. Supp. 1254, 1266 (S.D. Miss. 1995) ("McMillan I") ("in the instant [FACE] case, where a statute expressly provides for injunctive relief, irreparable harm is presumed and need not be established");United States v. White, 893 F. Supp. 1423, 1430 (C.D. Cal. 1995). As the court in Roach explained:
Because FACE authorizes this court to award preliminary injunctive relief when there exists a reasonable belief that the statute is being violated and when there is a reasonable likelihood of future violations, it will be presumed that Plaintiff will suffer irreparable harm if a preliminary injunction is not issued.Roach, 947 F. Supp. at 877.
These holdings grow out of the more general and well-established proposition that where, as here, a governmental entity seeks an injunction to enforce compliance with a particular statute, irreparable injury is presumed and need not be proven. Commodity Futures Trading Comm'n v. British Am. Commodity Options Corp., 560 F.2d 135, 141 (2d Cir. 1977) ("The district court applied the now well-established rule that in actions for a statutory injunction . . . the agency need not prove irreparable injury or the inadequacy of other remedies as required in private injunctive suits"), cert. denied, 438 U.S. 905 (1978); United States v. Diapulse Corp., 457 F.2d 25, 28 (2d Cir. 1972) ("The passage of the statute is, in a sense, an implied finding that violations will harm the public and ought, if necessary, be restrained. . . . No specific or immediate showing of the precise way in which violation of the law will result in public harm is required."); United States v. William Savran Assoc., Inc., 755 F. Supp. 1165, 1179 (E.D.N.Y. 1991) ("In other areas where Congress has provided for Governmental enforcement of a statute by way of an injunction, the courts have consistently held that irreparable harm need not be demonstrated, and that so long as the statutory conditions are met, irreparable harm to the public is presumed.").
As discussed below, plaintiffs have demonstrated a longstanding pattern of FACE violations. As such, irreparable harm is presumed and the first part of the test for a preliminary injunction is met.
2. Evidence of Actual Irreparable Harm
Even if irreparable injury were not presumed, plaintiffs have provided ample evidence of actual irreparable harm. InPro-Choice, this Court held that the same facts as are presented here constituted irreparable harm in two forms: (1) medical risks to clinic patients and (2) delayed access to the clinics themselves.
In sum, the Court finds that those women denied unimpeded access to plaintiffs' health care facilities cannot be compensated merely by money damages. Injunctive relief alone can assure women unimpeded access to plaintiffs' clinics. The irreparable harm flowing from defendants' 'rescue' activities, including the medical risks and the denial of constitutionally guaranteed rights, is real and threatens to continue. Without some form of injunctive relief, prospective patients will suffer irreparable harm from delayed access to the clinics.Pro-Choice, 799 F. Supp. at 1428. Additionally, a third type of irreparable harm, the risk of traffic accidents and other harm to the public caused by defendants' violations of state public nuisance law, also threatens irreparable harm. Copart Indus., Inc. v. Consolidated Edison, 394 N.Y.S.2d 169, 172 (N.Y. 1977). The evidence adduced at the hearing demonstrated a risk of all three types of irreparable injury.
a. Medical Risks to Patients
Defendants' conduct presents real medical risks to patients at clinics in Western New York seeking abortions and other medical services. As discussed above, defendants' harassing conduct, including screaming at women walking into clinics and accosting them in their cars, has left many women so emotionally distressed that their blood pressure and pulse are elevated, making medical procedures more dangerous and therefore requiring a delay in providing such procedures. At times, patients must be sedated because of this agitation, a process which carries its own additional health risks. In some instances, the stress caused by protest activities causes patients to forego abortions and other medical procedures until a later day. Again, plaintiffs presented testimony that such delays in treatment can cause medical risks to patients because earlier procedures can be performed more safely with fewer side-effects. Finally, defendants' protest activities are so loud that the noise penetrates into clinic offices, further upsetting patients and making it difficult for medical personnel to communicate with patients and focus on treatment. This too increases the medical risks to patients receiving care at the clinics.
b. Delayed Access To Clinics
As discussed above, defendants' conduct interferes with, and has on occasion even blocked entirely, patient access to reproductive health facilities in Western New York. Defendants impede and sometimes block patient access to clinic driveways; block sidewalks in and around the clinics; interfere with patients exiting their cars; scream at patients outside the clinic; and at times, physically accost patients as they attempt to enter the clinic. This conduct has caused some women to delay seeking medical care and has caused other women to forgo medical care entirely. In sum, the evidence shows that defendants' conduct denies women unimpeded access to health care facilities and thus causes irreparable harm.
c. Risk of Traffic Accidents and Other Public Safety Hazards
Defendants routinely impede access to clinic driveways by standing in the driveways so that cars cannot enter and by placing large signs in front of cars so that the drivers cannot see into the street to look for oncoming traffic. This causes serious risks to the public generally in at least two ways: (1) cars attempting to turn off a busy street into a clinic driveway often must stop short in the middle of the street to prevent hitting a protester; (2) drivers leaving the clinics are forced to attempt to enter a busy street without being able to fully see oncoming traffic. Law enforcement officials who testified at the hearing uniformly agreed that these activities cause a real risk of traffic accidents and injury. Indeed, eyewitnesses described numerous minor accidents and near accidents caused by defendants' conduct. In sum, if allowed to continue, defendants' activities will likely cause accidents and physical injury, resulting in irreparable harm to plaintiffs the People of the State of New York.
B. Likelihood of Success on the Merits
Plaintiffs have also established that they are likely to succeed on the merits of their claims. Plaintiffs seek relief under FACE, the public nuisance tort, and other state law causes of action. With respect to each of these claims, and as to each of the twenty-three remaining individual and organizational defendants still contesting this action, plaintiffs have demonstrated that they are likely to succeed on the merits at trial.
1. Likelihood of Success on FACE Claim
Section 248(a)(1) of FACE sets forth the prohibited activities relevant to this case. To establish a violation of FACE, plaintiffs must show that defendants have: (1) engaged in acts of force, threats of force, or physical obstruction; (2) done with the intent to injure, intimidate, or interfere with a person; (3) because that person has sought or provided, or is seeking, or seeking to provide, reproductive health services. See, e.g., White, 893 F. Supp. at 1427; United States v. Lindgren, 883 F. Supp. 1321, 1324-25 (D.N.D. 1995).
Once plaintiffs have demonstrated that defendants have violated FACE in the past, there is a presumption of potential future violations. See Roach, 947 F. Supp. at 877 (issuing FACE injunction despite the fact that defendants had not attempted a blockade in ten months because "based on the history of these Defendants, there is no assurance that it will not happen again"); McMillan, 946 F. Supp. at 1268 ("Once the plaintiff has established that a violation of [FACE] has been committed, it is the defendant's burden to show that it is unreasonable to expect that the wrong will be repeated."); White, 893 F. Supp. at 1438 (issuing FACE injunction and noting that the "mere fact that the weekly protests have been less disruptive since the police began monitoring the demonstrations does not obviate the need for an injunction") (emphasis in original). a. Acts of Force, Threats of Force, or Physical Obstruction
These decisions all rely on the more general doctrine of voluntary cessation which dictates that, even after a party has ceased its illegal activities, an action against that party does not become moot, and injunctive relief is still appropriate, unless the party can demonstrate: (1) there is no reasonable expectation that the wrong will be repeated; and (2) interim relief or events have completely and irrevocably eradicated the affects of the alleged violation. See Los Angeles County v. Davis, 440 U.S. 625, 631 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953).
For the reasons that follow, the Court finds that defendants have consistently and repeated engaged in acts of force, threats of force and physical obstruction at reproductive health care facilities in Western New York.
(1) Acts of Force
The term "force" is not specifically defined in the statute. In FACE cases, courts have interpreted "force" according to its everyday meaning to include acts of physical aggression and contact, such as hitting, pushing, shoving, or knocking into escorts, patients, or staff members. See, e.g., United States v. Scott, 958 F. Supp. 761, 775 (D. Conn. 1997) ("repeated physical contact" with escorts or clinic employees constitutes "force" prohibited by FACE); see also United States v. Dinwiddie, 76 F.3d 913, 926 (8th Cir. 1996) (demonstrator hit clinic maintenance supervisor with a bullhorn). The legislative history of FACE indicates that any type of physical assault is among the acts that constitute force within the meaning of the statute. United States v. McMillan, 53 F. Supp.2d 895, 902 (S.D. Miss. 1999) ("McMillan II") (discussing H.Rep. No. 103-706).
At the hearing, plaintiffs presented evidence that defendants have engaged in "acts of force" to prevent women from entering clinics. These acts of force range from repeatedly pushing and shoving escorts, to accosting patients, to one protester's practice of swinging his cane above escorts' heads. Moreover, during protests in 1992 in Buffalo and 1996 in Rochester, several defendants engaged in extensive acts of force to physically blockade reproductive health care facilities.
(2) Threats of Force
FACE prohibits threats of force, or physical harm or property vandalism, that create reasonable apprehension in the listener of bodily harm to herself or another. Cheffer v. Reno, 55 F.3d 1517, 1521 (11th Cir. 1995); Scott, 958 F. Supp. at 773. In weighing whether a statement is a "true threat" and not hyperbole or protected rhetorical speech, "the court must analyze the alleged threat in light of its entire factual context, and decide whether the recipient of the threat could reasonably conclude that it expresses a determination or intent to injure presently or in the future." Dinwiddie, 76 F.3d at 925 (quotations and citation omitted). Relevant context includes the national climate of violence at clinics, and assaults on physicians and clinic workers in the area of the clinic or elsewhere in the nation.See, e.g., Dinwiddie, 76 F.3d at 925; McMillan II, 53 F. Supp.2d at 905; McMillan I, 946 F. Supp. at 1264-65. The relevant context also includes the history of interactions between the person uttering the allegedly threatening statement and the clinic. See, e.g., Dinwiddie, 76 F.3d at 925. Other relevant factors for assessing whether a statement is a true threat is whether it was communicated directly to the victim and the victim's reaction.Id.
Applying these factors, the statements or actions that other courts have found to be threats in violation of FACE include:
A regular protester's statements to a clinic physician to "remember Dr. Gunn [an abortion provider who had been murdered] . . . This could happen to you . . . Whoever sheds man's blood, by man his blood shall be shed." See Dinwiddie, 76 F.3d at 917, 925.
A regular protester, who had indicated approval of acts of violence against abortion clinics and providers, called out to four clinic workers that they looked like birds on a wire waiting to be shot, and then made a shooting gesture; he once told a patient and escort who were leaving the clinic "ladies, there's no need to come back, in 24 hours God is going to destroy the clinic and you shouldn't be here when the explosion occurs." See McMillan I, 946 F. Supp. at 1264-65, 1268.
This same protester's subsequent repeated statement made when the clinic doctor arrived, rhetorically asking, "where's a pipebomber when you need him." See McMillan II, 53 F. Supp.2d at 898, 905.
A regular protester who often engaged in obstructive and harassing "sidewalk counseling" and often yelled outside the clinic, once stated to the clinic administrator, "You're young. But just because you are young does not mean your life won't be taken early," and on another occasion told the clinic security guard, "A bullet could come your way today." See Scott, 958 F. Supp. at 769, 770, 776.
During a blockade, another protester walked around saying maybe there was a bomb, and then shouting "boom." See Lindgren, 883 F. Supp. at 1326.
There are several instances of statements made by defendants in this case that are remarkably similar to these utterances that other courts have found to be threats. In the present case, defendants' statements and their likelihood of creating reasonable apprehension of harm in listeners must be evaluated in the context of the murder of Buffalo physician Dr. Barnett Slepian, who provided abortion services at Buffalo Womenservices, and other well-known instances of violence against abortion providers and clinics.
The most compelling instance of a threat in this case is the statement defendant Mary Melfi made to plaintiff Dr. Wortman on the day after Dr. Slepian's murder — that Dr. Slepian was dead and "you're next." This remark was made directly to Dr. Wortman, while Melfi was standing very close to him. In light of the closeness of this statement to the time of Dr. Slepian's murder, it could reasonably have been interpreted as threat against Dr. Wortman's life. This statement, which expresses the sentiment that Dr. Wortman would die like another physician who had provided abortions, is even more direct and targeted than the statement "you could be next" found to be a threat in Dinwiddie. 76 F.3d at 925. There was no "could" or other contingency in Melfi's remark; she said Dr. Wortman would be next. This statement of Melfi's, when assessed in the context of the recent violence, Melfi and Dr. Wortman's frequently confrontational relationship, and Melfi coming right up behind Dr. Wortman very close to him when she directed the remark right at him, reasonably created apprehension that Dr. Wortman might be harmed. Thus, it was a threat in violation of FACE.
Another example of a threat was defendant Melfi's statement directed to witness Michelle Tuohey and her co-workers that a bomb was going to go off at Rochester Planned Parenthood. Given the national context of numerous instances of abortion providers actually being bombed, any statements about bombs by protesters at clinics are akin to mentioning bombs while at an airport security checkpoint: one must take them as very serious matters, and reasonably deem them as a threat of harm. See McMillan II, 53 F. Supp.2d at 898, 905. The seriousness with which Tuohey took the remark made to her was underscored by the fact that she filed a police report. Given the national instances of bombing attacks on clinics, and Melfi's persistent conduct in the clinic driveways that endangered the safety of clinic staff and patients, it was certainly reasonable for Tuohey to feel threatened by Melfi's remark. Thus, this second remark of Melfi's also legally constitutes a threat of force intended to put the clinic staff to whom it was directed in reasonable apprehension of harm, in violation of FACE.
A third example is the statement by defendant Eva Boldt to escort Helen Dalley, in which she made reference to Dr. Slepian's death while cautioning Dalley to "watch out" because "the wages of sin is death." Given the context of Dr. Slepian's recent murder, and Boldt's history of aggressive protest, including accosting and stalking patients or escorts, her statement could reasonably be interpreted as a threat to harm Dalley. Boldt's statement is comparable to Dinwiddie's statement that just as another doctor was killed, "This could happen to you,"Dinwiddie, 76 F.3d at 925, and is even more alarming and direct than the remarks of Stanley Scott to the clinic administrator that she might die young, Scott, 958 F. Supp. at 769, 776, both of which were found to constitute threats of force in violation of FACE.
Defendant Linda Palm's statement directed to clinic security guard Richard Walkner and escort Peter Warn that they would die before the end of the day is also an explicit threat of force. There was no expression of hope or contingency in this remark; it was a direct threat of fatal harm by the end of the day and notably similar to McMillan's threat that the clinic would be destroyed within 24 hours. McMillan I, 946 F. Supp. at 1264-65. In the context of the Buffalo clinic's long history of blockades and other disruptions, coupled with the ongoing acts of violence elsewhere, such statements made directly to escorts and security guards could reasonably be construed as threats of harm.
In sum, these statements by defendants went beyond hyperbole and did not rest on unlikely hypothetical contingencies. Cf. Watts v. United States, 394 U.S. 705, 708 (1969) (protester's statement that if he were inducted into the army he would shoot the President was too contingent and hyperbolic to be a true threat). They were made in the aftermath of serious incidents of violence, directly to targeted individuals, and these victims were all people with whom the speakers had ongoing confrontational encounters. For these reasons, they all satisfy the FACE standard of being true threats that reasonably created apprehension of harm.
(3) Physical Obstruction
In order to prove a violation of the "physical obstruction" component of FACE, it is not necessary to show that a clinic was shut down, or that people could not get in at all for a period of time, or that anyone actually was denied medical services. United States v. Gregg, 32 F. Supp.2d 151, 156 (D.N.J. 1998). The statute defines "physical obstruction" as including rendering access "unreasonably difficult or hazardous." 18 U.S.C. § 248(e)(4). Courts have held that encountering interference, harassment, and traffic hazards while attempting to enter or leave a clinic meets the "unreasonably difficult or hazardous" standard. Scott, 958 F. Supp. at 775-76; Lindgren, 883 F. Supp. at 1330-31; White, 893 F. Supp. at 1431-32.
The evidence clearly demonstrates that on a daily basis, defendants make access to plaintiffs' health facilities "unreasonably difficult or hazardous." Defendants accost patients attempting to enter clinics by foot, yelling at them and often leaving them in tears. Defendants aggressively approach cars attempting to drop-off patients at clinics, often making it difficult for patients to get safely out of their cars and enter the clinics. Defendants block driveways, making it impossible or dangerous for cars to enter and leave clinics.
The conduct of defendants in this case parallels aspects of the record in the initial Pro-Choice case. In the Pro-Choice case, the Court found that "demonstrating and picketing around the entrances of clinics . . . harassing patients and staff entering and leaving the clinics . . . [and] forcing patients to run a gauntlet of harassment and intimidation in the hope that the patients will turn away before entering" amounted to a "constructive blockade." 799 F. Supp. at 1424. The Court's 1992, pre-FACE concept of "constructive blockades" meets the FACE definition of making access to clinics "unreasonably difficult or hazardous." Thus, actions which in 1992 constituted a "constructive blockade," now constitute a violation of FACE's proscription of "physical obstruction."
The uncontradicted evidence in this case of defendants' obstructing driveways and sidewalks in a manner that impedes access and causes traffic danger, and repeatedly engaging in abusive conduct towards patients that elevates medical risks, is similar to the facts that have prompted other courts to find violations of the "physical obstruction" provision of FACE. InLindgren, there was testimony that protesters positioned themselves right at the edge of the driveway, or in the driveway, in order to intercept entering cars. They stepped into the driveway in the path of cars, forcing the cars to stop or be delayed, and then thrust literature into the cars. Sometimes, the protesters placed their bodies or arms in front of car windshields, so that cars could not safely move until the protester moved. Lindgren, 883 F. Supp. at 1329-30. The court held that this testimony established that the protesters "physically obstructed the driveway with the intent to intimidate or interfere with a person because that person sought or provided reproductive health services.Id. at 1331. In Scott, the district court concluded that Scott's conduct in stepping in front of escorts and patients, waving a sign in front of escorts in an attempt to prevent them from walking past, standing so close to patients' cars that they had difficulty safely opening the doors, running up to or after patients, and continuing to yell at them despite requests to be left alone, rendered passage unreasonably difficult for patients, escorts, and staff, and thus violated the physical obstruction aspect of FACE. Scott, 958 F. Supp. at 768-69, 775-76. Similarly, in White, defendants violated FACE by engaging in numerous acts that impeded traffic and made it difficult for the targeted physician to drive safely from his home toward the clinic. Demonstrators crowded around a narrow intersection, and when the crowd forced the doctor to slow down to check for oncoming traffic, they placed placards in front of his car windows, so that the doctor could not readily see. White, 893 F. Supp. at 1431, 1438.
In sum, plaintiffs have clearly demonstrated that defendants' conduct makes access to clinics unreasonably difficult or dangerous. Moreover, plaintiffs have demonstrated that each defendant has engaged in the activities herein described. b. Intent to Injure, Intimidate or Interfere With Access To Clinics Because Those Clinics Provide Reproductive Health Services
See Plaintiffs' Post-Hearing Memorandum of Law in Support of Their Motion for a Preliminary Injunction at 91-103.
The Court finds that the second and third elements of a FACE claim have also been met. As to the second element, intent, it is irrelevant whether the defendants' goal in engaging in obstructive acts is to prevent abortion, or some other goal.Dinwiddie, 76 F.3d at 923. As the Second Circuit held inUnited States v. Weslin, 156 F.3d 292, 297-98 (2d Cir. 1998), this element does not refer to the ultimate objective or purpose of the defendants. If the defendants intended to engage in the acts that they committed, and the logical and natural result of those acts was to physically obstruct, or interfere with and restrict a person's freedom of movement, then the intent element of the statute is satisfied. Weslin, 156 F.3d at 298.
Here, the uncontested evidence adduced at the hearing shows that defendants have intentionally engaged in certain actions outside plaintiffs' clinics, the natural or logical result of which is the obstruction of or interference with access to plaintiffs' clinics. Accordingly, the intent element of plaintiffs' FACE claim has been satisfied.
The undisputed evidence also shows that defendants have undertaken their obstructive actions because the person or persons obstructed or interfered with sought to obtain or sought to provide reproductive health services. Thus, the third element is also satisfied.
Because plaintiffs have established all three elements of a FACE violation, the Court finds that they are likely to succeed on the merits of their FACE claim.
2. Likelihood of Success on the State Law Claims a. Public Nuisance Claim
Under New York law, the Attorney General, on behalf of the People of the State of New York, may seek an injunction to prohibit a "public nuisance." Copart Indus., 394 N.Y.S.2d at 172; New York v. Schenectady Chemicals, Inc., 479 N.Y.S.2d 1010, 1014 (A.D. 1984). The New York State Court of Appeals has defined a public nuisance as "an offense against the State [that] consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons." Copart Indus., 394 N.Y.S.2d at 172.
In New York State Nat. Organization for Women v. Terry, 704 F. Supp. 1247, 1261-62 (S.D.N.Y.), aff'd in relevant part, 886 F.2d 1339, 1361-62 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990), the district court held that anti-abortion protests and blockades of medical clinics by Operation Rescue (predecessor of defendant Operation Rescue National) constituted a public nuisance under New York law because they "interfered with the public's common right to obtain medical services, and have injured the health of a considerable number of persons. Moreover, defendants' activities have in the past and threaten in the future to obstruct vehicular and pedestrian traffic. . . ."Terry, 704 F. Supp. at 1262. As in Terry, defendants' conduct in this case constitutes a public nuisance under New York law in a number of ways and is therefore subject to being enjoined.
First, as in Terry, defendants' interference with citizens' access to medical care constitutes a public nuisance. The uncontested evidence at the hearing showed that defendants' interference with access to plaintiffs' clinics often increases patient stress, and that this stress may delay medical care and have other adverse medical consequences. The noise defendants make outside reproductive health facilities also interferes with medical care, particularly at Buffalo Womenservices, where protesters' screams put recovering surgical patients at medical risk because they are distracted from listening to medical personnel when they attempt to impart vital post-surgical information to patients. Additional uncontested evidence demonstrates that defendants obstruct access to reproductive health care facilities and make access to those facilities unreasonably difficult and dangerous. Thus, defendants have "interfered with the public's common right to obtain medical services." Id.
Second, defendants' obstruction of vehicular traffic safety constitutes a public nuisance. Because defendants are frequently in the clinics' driveways or walking slowly across them, vehicles cannot turn in normally and must remain on the public street waiting for protesters to clear the area. This creates the hazard that vehicles making turns into the driveways will be struck by another vehicle, endangering both persons seeking access to reproductive health facilities and motorists who happen to drive by. Defendants also hold signs near reproductive health facility driveways that block the ability of exiting drivers to see oncoming traffic. These signs create the risk that the drivers will be involved in a collision with oncoming vehicles which they are unable to see. Additionally, protesters stand in the street or walk into the street following cars that are about to turn into reproductive health facilities, creating a danger of serious traffic accidents. Protesters may be struck by passing vehicles or vehicles may be involved in collisions if they swerve to avoid protesters. Defendants also stand in driveways screaming with their backs turned to the public street, putting themselves and incoming motorists at risk of being involved in a serious accident. In sum, defendants' activities obstruct vehicular traffic, see id., and create safety hazards that "interfere with use by the public of a public place" and "endanger . . . the health [and] safety of a considerable number of persons." Copart Indus., 394 N.Y.S.2d at 172.
Third, defendants' obstruction of the public sidewalk constitutes a public nuisance. Defendants sometimes occupy an entire public sidewalk thus requiring pedestrians, including parents with small children, to step off the sidewalk and into the public street, often during the morning rush hours. This creates a risk that the pedestrians could be struck by a passing vehicle or a passing vehicle could be involved in a collision if it swerves to avoid a pedestrian. In addition, defendants aggressively approach passersby, sometimes interfering with their use of the sidewalk, and interfere with the ability of the public to use the bus stop in front of Buffalo Womenservices.
In sum, the uncontested facts show that defendants' actions in and around the targeted reproductive health care facilities interfere with the ability of the public to obtain safe medical care and disrupt pedestrian and vehicular traffic flow. Defendants' activities interfere with the ability of ordinary citizens to use safely the sidewalks and streets immediately adjoining the clinics. Thus, under Terry, 704 F. Supp. at 1261-62, and Copart Indus., 394 N.Y.S.2d at 172, defendants' actions constitute a public nuisance under New York law and may be enjoined.
b. Trespass Claim
The private plaintiffs have also demonstrated a likelihood of success on the merits of their state law claim for trespass. Under New York law, the tort of trespass is defined as any interference with any property right, including the right to the use and quiet enjoyment of property, either by an unlawful act or a lawful act performed in an unlawful manner. See Ivancic v. Olmstead, 497 N.Y.S.2d 326 (N.Y. 1985). In the Pro-Choice case, this Court previously found that a very similar record of conduct constituted a trespass against the clinics. Pro-Choice, 799 F. Supp. at 1431-32.
The uncontradicted evidence here shows numerous instances of defendants' interference with and infringement of plaintiffs' rights to the use and enjoyment of their clinic premises. Defendants Crawford, Warren, and Powley have repeatedly invaded the property of Genesee Hospital and blocked access to medical offices. At the other medical facilities, defendants' conduct obstructs driveways and renders passage into and out of plaintiffs' premises hazardous, thereby interfering with plaintiffs' property rights to the safe use of their entrances. The noise from defendants' raised or amplified voices frequently intrudes into and contaminates the safety of the atmosphere in plaintiffs' clinic buildings. See, e.g., New York v. Fermenta ASC Corp., 603 N.Y.S.2d 884 (Sup. 1995), aff'd, 656 N.Y.S.2d 342 (A.D. 1997) (intrusions of herbicide residue into groundwater constituted a trespass). For example, at Womenservices, noise from screaming defendants can be heard in the room where patients recover from surgery, as well as in the waiting room. These intrusions of noise make patients anxious, increase their stress, make it difficult for them to hear medical instructions, and interfere with their recovery from surgery. At Rochester Planned Parenthood, noise from defendants' voices has intruded into patient counseling rooms, clinician offices, and the waiting room. This noise has interfered with counseling sessions, and made it difficult for clinicians to convey important health care information to patients.
Because of these invasions of plaintiffs' right to the use and enjoyment of their property, plaintiffs have demonstrated a likelihood of success on their trespass claim. Defendants have given no indication that they will voluntarily stop or abate their noise intrusions and driveway obstructions. The threat of a continuing trespass entitles a property holder to injunctive relief where irreparable injury may result. Pro-Choice, 799 F. Supp. at 1432; Terry, 886 F.2d at 1261 n. 18.
C. Defendants' First Amendment Rights
The preliminary injunction plaintiffs seek here serves the same compelling governmental interests advanced by the injunction in the Pro-Choice case, as underscored by the Supreme Court in substantially affirming that injunction in Schenck v. Pro-Choice Network: "the governmental interests . . . in . . . ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services . . . in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded access to the clinics." Schenck, 519 U.S. at 376.
In addition, the preliminary injunction advances the legitimate governmental interest in protecting the medical privacy and well-being of patients held captive by medical circumstance. In a recent abortion protest case, Hill v. Colorado, 2000 WL 826733 (U.S. June 28, 2000), the Supreme Court held that the government has a legitimate interest in "the avoidance of potential trauma to patients associated with confrontational protests." Id. at *6 (citing Madsen v. Women's Health Center, 512 U.S. 753 (1994)). In order to advance that interest, the government can legitimately seek to protect patients from unwanted communication from protestors. As the Court explained, patients seeking access to a medical facility have a recognizable privacy interest in avoiding unwanted communication from protestors and have a right to be free from "importunity, following and dogging" after an offer from protestors to communicate has been declined. Id. at *8 (citing American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 204 (1921)). The Court reiterated that "'[t]he First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.'" Id. at *7 (quoting Madsen, 512 U.S. at 772-73). Thus, the Court concluded, the government has a legitimate interest in protecting the right of patients "to be let alone." Id. at *8.
All of these governmental interests are clearly advanced by the requested preliminary injunction. Absent the injunction, defendants' actions will continue to interfere with women's access to reproductive health facilities, harm women's medical care overall, and give rise to public safety concerns, particularly concerns about traffic accidents.
Moreover, the requested injunction is narrowly tailored to protect defendants' legitimate First Amendment rights. In Madsen v. Women's Health Center, 512 U.S. 753, 765 (1994), the Supreme Court held that injunctions that restrict speech must be: (1) content neutral; and (2) narrowly tailored so as to "burden no more speech than necessary to serve a significant governmental interest." The previous Pro-Choice injunction, which is substantially similar to what plaintiffs seek here, was found content neutral by the Supreme Court. It is aimed solely at restricting defendants' conduct, and it is fully justified without reference to the content of defendants' speech.Pro-Choice, 799 F. Supp. at 1432 (citation omitted). The fact that the defendants whose conduct necessitates this injunction may share a particular viewpoint on abortion does not undermine its content neutrality. Id. at 1433.
Finally, the requested injunctive relief is narrowly tailored to burden no more speech than is necessary. The requested preliminary injunction prohibits defendants from demonstrating in the public streets at reproductive health facilities. In Schenck, the Supreme Court held that a prohibition on demonstrating in the street was an appropriate, narrowly tailored means for guarding against the traffic hazard caused by demonstrators approaching cars in the street or carrying signs in the street or otherwise congregating in and impeding public thoroughfares. Schenck, 519 U.S. at 380.
Many of the provisions in the requested preliminary injunction are standard features of injunctions issued to curb illegal and obstructive actions by anti-abortion protesters, and thus do not raise any First Amendment issues. The proscriptions in ¶¶ 1(A)-(C) that enjoin blocking or impeding access and trespass, in ¶ 1(D) that enjoin physically abusing, grabbing, pushing, shoving and crowding, in ¶ 1(E) that enjoin excessive noise, and in ¶ 1(F) that enjoin defacing, vandalizing, or damaging property, all prohibit conduct that is "independently proscribable." See Madsen, 512 U.S. at 774. These provisions have been upheld by the Second Circuit in Pro-Choice, 67 F.3d at 373.
The other major provisions of the requested preliminary injunction that require consideration here are the buffer zones established around the entrances and in front of portions of plaintiffs' facilities. Buffer zones have become a commonly employed feature of injunctions, issued both under FACE and state law, designed to curtail obstructive protests at reproductive health care facilities. There is no formulaic distance that courts have used in drawing buffer zones. In keeping withMadsen's teaching that injunctions issued to control protest activity must be narrowly tailored, the permissible scope of a buffer zone must be determined with reference to the hazards posed by defendants' conduct, the configuration of a particular site, its means of ingress and egress, the surrounding volume and patterns of vehicular and pedestrian traffic, and any particular traffic, public, and medical safety dangers posed at the location. Courts have upheld over First Amendment challenge buffer zones of widely varying distances: 36 feet in Madsen; 45 feet in White; 28 feet in Scott; and 25 feet in McMillan I. In two cases involving particularly abusive and threatening individual protesters, courts sustained very expansive buffer zones: 500 feet, Dinwiddie; and 1000 feet in United States v. Bird, 124 F.3d 667, 684 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998). All these buffer zones had two significant common features: (1) they excluded all covered demonstrators from coming within their boundaries, including self-designated "sidewalk counselors"; and (2) they required defendants to stay at least across the street from the protected clinics.
As discussed below, the buffer zones requested here are well within constitutional norms.
1. Fifteen Foot Buffer Zones at Most Facilities
In the requested preliminary injunction, at every reproductive health facility except plaintiff Buffalo GYN Womenservices and plaintiff Rochester Planned Parenthood, plaintiffs seek no more than the fifteen-foot buffer zones around driveway, walkway, and doorway entrances that have already been upheld as consistent with the First Amendment in Schenck. The only difference between the fifteen-foot buffer zones in the present preliminary injunction and those in Schenck is that all defendants, including those engaged in "sidewalk counseling," are now excluded from the buffer zones. In this sense, the new buffer zones are "pure" rather than "permeable."
In Schenck, the Supreme Court held that the district court ( i.e., this Court) was not required to permit any sidewalk counselors into the buffer zones. "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zones from unprotected conduct . . . would have been to keep the entire area clear of defendant protesters." Schenck, 519 U.S. at 381 n. 1. Excluding "sidewalk counselors" from the buffer zones at this point is fully warranted by the evidence adduced in the present case. Defendants claiming to be "sidewalk counselors" have routinely abused the privilege of being allowed inside the buffer zones created by the Pro-Choice preliminary injunction. Defendants, including some who were specifically named and bound by the earlier injunction, have continued to stand and parade in the driveway entrances, to impede cars as they try to enter and leave clinic driveways, and to block drivers' visibility with their large signs, causing serious traffic safety hazards. Defendants have refused to back out of the buffer zone even though their targets have driven past or walked into the clinic doors. Defendants continue to stand inside the buffer zones and scream or use a bullhorn to shout into the parking lots, up the driveways, or into the doors. The noise that they create while inside the buffer zones intrudes into patient care areas of plaintiffs' facilities, causing serious medical hazards. The only feasible way to eliminate these dangers is to exclude all defendants, including "sidewalk counselors," from all buffer zones established in this new preliminary injunction.
2. Enlarged Buffer Zones at Womenservices and Rochester Planned Parenthood
At the two locations that have had the most difficulty with maintaining safe access and keeping patient areas free from noise — Buffalo GYN Womenservices and Rochester Planned Parenthood's University Avenue location — plaintiffs' proposed preliminary injunction enlarges the buffer zones beyond the fifteen feet. In Madsen, the Supreme Court noted that the failure of an initial injunction to accomplish its purpose is an important consideration in assessing the constitutionality of an expanded, more speech-restrictive injunction. Madsen, 512 U.S. at 770. The Court in Schenck amplified this observation, stating that limitations on freedom to espouse a message within a buffer zone can be justified as a result of defendants' ongoing harassment and intimidation of patients. Schenck, 519 U.S. at 385; see also United States v. Scott, 1998 WL 241755 (D. Conn. Mar. 16, 1998) (district court, responding to evidence of Scott's continued violations of a previous order, enlarged the buffer zone and required him to stay increasing distances away from persons seeking access),aff'd, 187 F.3d 282 (2d Cir. 1999).
a. Womenservices' Buffer Zone
At Womenservices, the proposed buffer zone will extend 60 feet from the southern edge of the clinic driveway along the sidewalk in front of the adjoining dry cleaning business, and run 58 feet from the northern edge of the Womenservices' building toward Fairfield Street. This proposed buffer zone is precisely tailored to the evidence of traffic and public safety hazards at this location. The 58-foot distance clears the driveway to the neighboring service station, in order to prevent the continued blocking of the service station with its attendant traffic safety hazards. The 60-foot distance of the southern reach of the zone is necessary to keep the sidewalk in front of the dry cleaners clear of protesters, for their own safety as well as the safety of dry cleaner patrons and pedestrians. The sidewalk in front of the cleaners is used as a temporary parking area by patrons rushing in to drop off or pick up cleaning, and it is the site of extensive traffic pulling quickly in and out. The presence of protesters in this area caused several near accidents, and the protesters themselves are at serious risk of being hit by cars if they congregate on this sidewalk.
The Womenservices' buffer zone also keeps the entire length of sidewalk in front of the clinic clear of protesters, because of the extensive evidence that prior to the TRO, defendants and others congregated on the front sidewalk, obstructing the path of patients trying to walk to the front door, and often rendering the sidewalk impassable, forcing patients, pedestrians, and school children into the street, and blocking people trying to get on or off the public bus that stops just outside the old fifteen-foot buffer zone. For patients who come to the clinic on foot or by public transportation, there is no other route of access except by this sidewalk in front of the clinic. To ensure their medical safety and free passage, it is essential to keep the sidewalk clear. By keeping all protesters, including sidewalk counselors, out of the buffer zone, the proposed preliminary injunction also protects the clinic and its staff and patients from the medically harmful noise that had previously disrupted the waiting room and recovery room.
Given the unique urban location and configuration of Womenservices (its narrow driveway off a busy street, no visible traffic signal, a bus stop near the driveway edge, its placement immediately next to a service station and a dry cleaner, a constant flow of traffic in and out of these neighboring businesses, and use of the sidewalk in front of the clinic by patients alighting from the bus as well as by neighborhood residents and parents walking their young children to the nearby elementary school), no smaller buffer zone could adequately keep the driveways and sidewalks clear and protect the governmental interest in public safety. Public safety would be seriously undermined if the buffer zone were smaller, because all that a narrower zone would accomplish would be to clear the clinic driveway and doorway by pushing protesters right into the service station driveway and in front of the dry cleaner's doorway and parking area. The new buffer zone, as established by the TRO, has effectively eliminated the traffic and safety hazards previously created by defendants' activity at Womenservices. Furthermore, if protesters were allowed closer to the clinic driveway or to the doorway at the northern edge of the building, their shouting could be heard inside the recovery room that is off the driveway, and in the waiting room that is near the doorway. The new buffer zone has effectively eliminated the audibility of the protesters inside the clinic.
Finally, the buffer zone at Womenservices provides defendants with ample alternative avenues of communication. The protesters, who now frequently congregate across the street, can still be seen and heard while driving into or leaving Womenservices. Passersby, staff and patients walking into or driving into Womenservices can still read their signs. Sidewalk counselors have ample opportunity to pass out leaflets and speak to pedestrians outside the buffer zone, within the same block as the clinic. Thus, although defendants' ability to convey their message will obviously be hindered at least to some extent if they are required to move further away from the clinic, they can still make their views known effectively.
For all these reasons, the buffer zone in front of Womenservices is narrowly tailored to conform to the evidence of defendants' obstructive conduct and harm to public safety. In light of the ample communicative opportunities defendants still have to be seen and heard by patients, staff and the public, it burdens no more speech than necessary to secure the affected governmental interests.
b. Rochester Planned Parenthood Buffer Zone
The proposed buffer zone at the University Avenue location of Rochester Planned Parenthood extends twenty-five feet from the edge of the clinic driveway going northwest towards North Street, and fifteen feet from the edge of the building going southeast towards Scio Street. This represents only a modest expansion of the previous Pro-Choice buffer zone: from fifteen feet to twenty-five feet on the North Street side of the driveway, for an expansion of ten feet; and from fifteen feet to thirty feet on the Scio Street side of the walkway, only a fifteen-foot expansion. The failure of the previous fifteen-foot zones to keep the driveway clear of protesters and signs, and to keep the protesters' loud voices from intruding into patient care areas inside the building, necessitates an expansion of the buffer zone. Despite the previous fifteen-foot zones, Planned Parenthood was blockaded by several of the current defendants in December 1996, and during many of the large "rosary marches," the sidewalk and driveway in front of the clinic were completely clogged with protesters. On other protest days, defendants have repeatedly disregarded the fifteen-foot zones by parading slowly back and forth across the driveway, or by stepping up to cars to detain them as they attempted to enter or leave. At the eastern edge of the fifteen-foot zone by the walkway entrance, protesters would congregate right at the edge of the building, very close to windows leading to clinicians' offices. The amount of noise they made while only fifteen feet from the edge of the walkway could easily be heard inside these offices, and made it difficult for clinicians to communicate medical information to patients. To reduce this medically intrusive noise, the buffer zone running towards Scio Street should be expanded to fifteen feet measured from the edge of the building.
The buffer zone that plaintiffs are now requesting at Rochester Planned Parenthood is actually less restrictive than the one currently in effect under the TRO. The buffer zone under the TRO extends fifty feet north from the driveway rather than twenty-five feet and runs twenty-five feet south from the edge of the building rather than fifteen feet.
In light of the extensive, uncontradicted evidence of continued driveway obstruction, serious traffic safety hazards, and medically dangerous noise levels created by defendants at University Avenue, the modest expansion of the buffer zone by ten feet towards North Street, and by fifteen feet towards Scio Street, is no more burdensome than necessary, and provides defendants with ample means to get their message across to people entering and leaving Planned Parenthood. It is well within the scope of buffer zones upheld by other courts on similar or less extensive records of ongoing obstruction.
CONCLUSION
For the reasons stated, plaintiffs' motion for a preliminary injunction is granted. A copy of the preliminary injunction is attached hereto as an Appendix. The preliminary injunction itself shall be filed under separate cover. Plaintiffs shall serve a copy of this Decision and Order and the Preliminary Injunction upon each defendant, by first-class mail or personal service.
IT IS SO ORDERED.