PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
MANHATTAN V UNTERBURGER
DOCKET / CHRONOLOGICAL FILE
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NORTHERN DIVISION - W PALM BEACH
NO. 99-8164-CIV-WPB-HURLEY

MANHATTAN MAGNOLIA CORP.,
AWARE WOMAN MEDICAL CENTER et al,
Plaintiffs,
-versus-
RAYMOND UNTERBERGER,
ERIC DANIEL OLSON,
MEREDITH TROTTER RANEY, et al,
COMPUSERVE, INCORPORATED,
TML INFORMATION SERVICES, INC, et al,
Defendants.

DISPOSITIVE MOTION ON CERTAIN ISSUES OF CIVIL LIABILITY

MOTION & MEMORANDUM OF MAGNOLIA PLAINTIFFS FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY FOR SPECIFIED F.A.C.E., TRESPASS, STALKING, & INVASION OF PRIVACY CIVIL LIABILITY QUESTIONS

Plaintiffs, collectively "MAGNOLIA," respectfully move this Court under Rule 56 for partial summary judgment against defendants Unterberger, Olson, Raney, CompuServe, and TML, as to certain specified liability questions, namely conclusive civil liability on sufficient undisputed facts for F.A.C.E., civil trespass, stalking, and invasion of privacy counts. In support of this motion, MAGNOLIA states:

STATEMENT OF THE CASE

This civil action, filed March 2, 1999, involves two inextricably intertwined controversies among the same parties.

First are federal and supplemental state law torts arising from criminal {18 USC § 248}convictions of defendants Unterberger and Olson, both upheld by the Eleventh Circuit. United States v Unterberger, 97 F3d 1413 (11th Cir 1996).

Strong evidence suggests several additional federal and state offenses, and civil wrongs, committed before, during, and after that event, but not charged. These were aided and abetted by individual defendants, i.e., Mr Raney, and the person(s) who super-glued the clinic doors shut. This action seeks civil redress for substantially all of the unlawful and tortious activity leading up to and associated with that event. Many of these issues may be efficiently resolved civilly on partial summary judgment.

Plaintiffs Magnolia submit herewith evidentiary documents such as the videotape of the "event" and background (Tab 6), photographs of defendants during the event (Tab 3), relevant deposition testimony of civil defendant Mr Raney (Tab 4), and police reports (Tab 5).

The second intertwined part of this case concerns the same plaintiffs, defendants, and additional corporate defendants CompuServe and TML. The range of facts involve additional invasions of privacy, of an ongoing stalking nature, extended continuously over a period of months and years.

Individual defendants in concert systematically copied the license plates of hundreds of AWCC/Magnolia reproductive health care patients, residents of the Southern District. Defendants identified these patients without any consent or authorization whatever, a tactic of "Scarlet Letter" intimidation. The patients had traveled to Melbourne for reproductive health care. Defendants invaded their privacy, made unwanted contact, and engaged in stalking-like behavior against these patients, owners, and passengers of the vehicles.

FACTS NOT SERIOUSLY IN DISPUTE

The following are material facts sufficient to support partial summary judgment, which facts are not likely to be in dispute:

1. On or about the early morning of March 4, 1995, the defendants Unterbergers, Olson, Raney, LeStourgeon, McEwen, Vanderbilts, Herzog, and other conspirators, traveled without invitation or authority to the Aware Woman Medical Center, 1497 Forest Hill Blvd, Lake Clarke Shores, FL., in several vehicles. Some departed from Melbourne, FL, as early as 5 AM to participate in concerted wrongful action.

2. Unknown individual(s) super-glued two of the AWMC entrance doors shut, to intimidate plaintiffs, to obstruct entrance by patients and staff involved in reproductive health care services, and to further the conspiracy.

3. Eric Olson and Raymond Unterberger created a number of separate and independently effective obstacles to entry at the main AWMC "Entrance" with their bodies, interconnecting bicycle locks, and a concrete block, acquired as part of the conspiracy. Tab 3 illustrates their "lock and block."

4. Meredith Raney traveled very early (~5 AM) from Melbourne in a rental or loaned vehicle to conceal his identity. He usually drives a bright red truck with numerous stickers. Said truck would have alerted AWMC staff.

5. Mr Raney traveled to further the conspiracy with his video camera, with which he trespassed and selectively recorded the event, and in other respects. Tab/Exhibit 6 is a video fragment of the event and background on Mr Raney.

6. Messrs Unterberger, Olson, and Raney around 7 AM entered and refused to leave the private premises on which AWMC is situated, without invitation or authorization.

7. Messrs Unterberger and Olson obstructed removal in multiple independent ways: locks, a massive concrete block, refusal to disclose whereabouts of keys, non-cooperation with authorities, and the making of intimidating threats.

8. Mr Raney refused to cease trespassing until ordered more than once to leave, then returned back onto the private property nearby, and trespassed again, mocking authorities.

9. Mr Raney selectively videotaped the event and misrepresented himself to authorities as a "photographer," for the purpose of obstructing investigation. He also videotaped various staff, patients, vehicles and license plates.

10. From late 1989 to date as they came on board and joined the conspiracy, Mr Raney and other defendants have continuously conspired against plaintiffs to obstruct, harass, intimidate, and invade their privacy in the delivery of reproductive health care services to patients from this District.

11. Said conspiracy has included hundreds of separate instances of videotaping patients, copying license plates, accessing personal information, and making unwanted personal contact with vehicle owners and patients. {Tab 4}.

12. Named individual defendants participated as "scribes," and other active facilitators, using binoculars and cameras. Mr Rogers also provided a "staging area," a building and lot.

13. Until December 1997, CompuServe, Inc. provided Mr Raney, for a fee, with personal identifying information and addresses of patients based upon license plates. Defendant TML continued that service to Mr Raney in 1998, without thoroughly investigating his use and abuse of the data.

14. The copying of license plates, release & dissemination of personal information and unwanted contact made with vehicle owners and these private medical patients irreparably threatened, damaged, and intimidated them, and continuously damaged and intimidated AWMC, AWCC, staff, and physicians.

F.A.C.E. CONVICTIONS OF UNTERBERGER & OLSON

On January 8, 1997, this Court entered final judtlment on the F.A.C.E. convictions of defendants Unterberger and Olson, following receipt of the Eleventh Circuit mandate. {Tab 2}.

CONCLUSIVE CIVIL F.A.C.E. LIABILITY BY OFFENSIVE COLLATERAL ESTOPPEL

The F.A.C.E. convictions of Messrs Unterberger and Olson conclusively establish civil liability for the facts and legal elements of the crime/tort under 18 USC §248, at least for the two and others equitably estopped. The wrongful acts are on a co-conspirator's video, and in still photos.

The criminal information charges that Olson and Unterberger "did by physical obstruction intentionally intimidate and interfere with ... reproductive health services ..." {Tab 2}. That much is settled and clear on video. Mr Raney the videographer is estopped to deny, and may only contest his own complicity.

"[T]he doctrine of nonmutual collateral estoppel has been conditionally approved ... in Parklane Hosiery ... 439 US 322 {1979}." United States v Mendoza, 464 US 154, 157 (1984}. Cf Montana v United States, 440 US 147, 153 (1979). This is similar to the tax context, where an evasion conviction conclusively establishes civil liability. Tomlinson v Lefkowitz, 334 F2d 262 {5th Cir 1964).

Defendants Olson and Unterberger fully litigated FACE criminal liability, and lost. The burden of proof was higher there than here, so civil responsibility is a clear question.

One remaining issue is: How many separate FACE violations were committed? The answer is as many as could be separately prosecuted TIMES (X} the number of victim plaintiffs, "person[s] aggrieved," allowed by Congress to sue. 18 USC §248(C}(1}. This is a remedial statute to solve an obstructive, mob-like, often very violent problem, with statutory, actual, and punitive damages. It should not be watered down judicially, but taken as seriously as conspiracy to obstruct a federal courthouse.

Olson and Unterberger blocked the entrance with their bodiess which had to be moved. They obstructed access with multiple bicycle locks. They used a cement block for further obstruction. They attempted to intimidate by calling plaintiff staff "assassins," as FBI agent Acree noted. {Tab 2}. They concealed keys to the locks, committing another offense. Also, they had an accomplice glue two other clinic doors shut.

That adds up to at least seven F.A.C.E. violations each for Olson and Unterberger, against each of six plaintlffs plus a conspiracy count, for a forty-eight count total.

This Court may determine that six plaintiffs (excluding AWCC for now) may choose to elect $240,000 in statutory compensatory FACE damages, with any other actual damages and punitive damages to be determined later by a jury.

CIVIL TRESPASS LIABILITY

Messrs Unterberger, Olson, and Raney also plainly trespassed and invaded property interests of lessee AWMC, and defied repeated warnings to move on {Tab 6}. Mr Raney later returned to the private property without a scintilla of permission, and continued to mock authority and trespass. This is proper supplemental jurisdiction. The same core facts underlie both federal and state law claims.

Both compensatory and punitive damages may be awarded for civil trespass violations in Florida. Two of the leading cases are Wishman v Foster & Curry, 145 So2d 278 (Fla 3d DCA 1962), and Mendoza v Fartell, 199 So2d 750 (Fla 3d DCA 1967). The allegations in this case easily meet the requirements of both Wishman and Mendoza. The latter case is similar.

This Court may determine conclusively that defendants Olsen, Unterberger, and Raney civilly trespassed against AWMC and must respond in actual and punitive damages.

INVASION OF PRIVACY LIABILITY: FEDERAL AND STATE LAW CLAIMS

Surveillance, Stalking, and Unconsented Contact Invade Fundamental Medical Privacy Interests

The tailoring of civil redress to protect these privacy interests is very fact-specific. The present case has a strong claim. Systematic license plate copying, videotaping, stalking, and long distance surveillance conducted by these individual defendants, reveals a frightening new dimension to intimidation against reproductive health care facilities nationwide. The facts of the privacy invasion here are so numerous and outrageous that even minimalist notions of privacy are offended. In one instance cited by the Florida Supreme Court, and in the U.S. Supreme Court record of Madsen v WHC, 512 U.S. 753 (1994) (Joint Appendix v.I, p. 190) defendant Raney stalked a physician on the highway and made a "gun gesture" with his hand. That incident was stated among many events of harassment in the related Florida Supreme Court opinion, Operation Rescue v WHC, 626 So2d 664, 668 (Fla 1993):

"IT]he doctor was followed as he left the clinic by a person IRaney] . . . who communicated his anger to the doctor by pretending to shoot him . . . [A]fter a physician similarly employed was killed by an antiabortionist . . . this doctor terminated his employment with the [AWCC] clinic." 626 So2d 664, 668 [interpolation added].

The patient also may not be the registered vehicle owner. That owner may not even know about the patient's private medical visit. Vehicle owner reactions to Mr Raney's letters and calls, and the impact on patients, pose more danger.

The common outrageous injury to each patient is the unconsented intrusion into her confidential medical life: the stranger in the driveway with binoculars, the unwanted contact letter, from a stalker who was secretly or videotaping her at AWCC. Mr Raney may then follow up with calls.

Both state and federal public policy favor individual confidentiality and privacy in medical matters. This is true with information, records, and choices. Medical confidentiality should not be compromised at the whim of a zoom lens.

Federal and state motor vehicle, public information, and medical record laws strongly disfavor careless release of medically confidential data from compiled records. The rule is confidentiality, if there is no serious public need.

Supreme Court Decisions Support A Strong Liberty Interest In Personal and Medical Confidentiality, Absent A Substantial Countervailing Interest, that is Absent Here

The closest U.S. Supreme Court case opinion on medical-personal confidentiality is Whalen v Roe, 429 U.S. 589 (1977). Whalen has been applied for over twenty years to protect important personal interests in medical and personal record confidentiality. See Reproductive Services v Walker, 439 US 1307 (1979) (opinion of single Justice); Nixon v Admnr, GSA, 433 US 425 (1977). {A valuable and recent extensive analysis appears in Kallstrom v City of Columbus, 1998 WL 54406 (6th Cir 1998), and Norman-Bloodsaw v Lawrence Berkeley Lab, 1998 LW 39209 (9th Cir 1998). Whalen identified two protected federal constitutional interests:

"One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." 429 US at 599-600.

Both such interests are unreasonably invaded by - defendants in identifying, exposing, and surveilling persons involved in reproductive health care activities, whether alone or in concert with CompuServe Inc, or TML.

Unlike the secure database in Whalen, Florida DMV records are a sieve, a storefront for sale, a stalker's dream. Mr Raney has thousands. He has produced notebooks at deposition. Corporate defendants are recklessly insensitive about protecting confidentiality. They sell privacy.

When a patient goes to AWCC, she is exercising a constitutional right. Clinic abortions have been legal medical practice in Florida since 1972, before Doe v Bolton, 410 U.S. 179 {1973). A patient should not be suddenly confronted by an unpredictable stranger-zealot, writing or calling because he condemns her choice. That choice is not rationally any part of Mr Raney's business, nor of CompuServe or TML.

Patients need peace and quiet to recover in their homes from this minor surgery, with its sometimes-large psychosocial implications, be they relief, disappointment, or a fresh new start. This intimidating imposition upon women is threatening under the F.A.C.E. definitions, and an undue burden upon their private choices. It is no answer that she can ignore the letters and calls. Those are damaging and threatening per se, an intimidating prelude to a knock at the door, a strange car parked at the corner, a dark van, phone calls.

Whalen v Roe when applies here. The interests asserted by Magnolia/AWCC are stronger than those of Roe, who had the protection of numerous safeguards. Magnolia can validly claim both kinds of interests recognized in Whalen: non-disclosure, and a fundamentally important choice.

Defendants' Raney's interests are illegitimate, insubstantial, and vastly beyond any legitimate exercise of free speech or religion. The corporate defendants have no justification either. They trade in and profit by acquiring and reselling an unconsenting individual's privacy and security, contributing to a zone of foreseeable danger.

CompuServe and TML claim to be only "a conduit." It is the same kind of conduit as a gun barrel. They cannot avoid full responsibility for foreseeable results to the targets of their acts. Vehicle records and driver's license files should not be a playground for harassers, intimidators, and blackmailers.

Whalen Part IV envisions this case. These rights go back to Justice Brandeis' classic statement that "the right to be let alone" is "the right most valued by civilized men [and women]." Olmstead v United States, 277 US at 478.

United States v Ray is also instructive. 502 US 164 (1991}, unanimously rev'g 908 F2d 1549 (11th Cir 1990). Haitians seeking refuge requested FOIA access to names of others forcibly returned. That confidential information was denied on privacy grounds, although material as evidence. FOIA Exemption 6 protects "medical files and similar files [to avoid] ... a clearly unwarranted invasion of privacy". 5 USC §552(b)(6). The Court, per Justice Stevens, initially found the individuals' "privacy interest more substantial than the Court of Appeals [Eleventh Circuit] recognized". 502 US at 15:

"Disclosure of... [clinic visitors'] identities could subject them or their families to 'embarrassment in their social and community relationships.'" 502 U.S. at 176 [interpolated].

Mr Raney's interest in record access is much weaker than that of Ray. He has no legitimate reason to contact patients, physicians, or staff. His access actually creates a serious health hazard to patients because he intimidates, is hostile, and is medically unqualified. Patients skip follow-up because of Mr Raney. Patients go so far away that they cannot return for follow-up. That health hazard dimension of this case is a bold reality that supports the broadest of relief.

Here, the clinic, patients, and physicians have an even stronger claim of established Constitutional magnitude. Mr Raney, with the indispensable aid of TML, and/or CompuServe, effectively maintains an AWCC Southern District patient list database garnered from his binoculars and log sheets. This is an enormous invasion of confidentiality, with serious medical risks of arbitrary disclosure and blackmail. It creates a penalty and undue burden on access to health care, and is a frightening, looming threat, far worse than anything contemplated by Whalen v Roe, supra, or Planned Parenthood v Casey, 505 US 833, 874 {1992). {In line with Ray, more recently, the Supreme Court protected home addresses from FOIA disclosure in United States v FLRA, 510 US 487 {1994)}.

U.S. COURT OF APPEALS DECISIONS RECOGNIZE LIBERTY AND CONFIDENTIALITY INTERESTS

Cases before and after Whalen v Roe, 429 US 589 {1977}, and Planned Parenthood v Casey, 505 US 833 (1992}, recognize liberty and confidentiality interests similar to those asserted here. Those principles, analysis, facts, and balance of interests apply forcefully to the present claims. The interests here are weighty. The invasion is serious and medically dangerous. The interests of Mr Raney's group are weak and hardly different from those of a stalker or blackmailer.

Doe v City of N.Y., 15 F3d 264 (2d Cir 1994), is one leading federal appellate case among many. Doe claimed a right of confidentiality in medical records that revealed an adverse test result. This right was not waived by Doe's making a public discrimination complaint. The Second Circuit in Doe relied upon Whalen v Roe, and Olmstead v United States.

The reasoning of Doe applies with greater force here. AWCC patients have done nothing remotely to suggest a waiver of reasonable privacy interests. Who would suspect that a vehicle record would lead to being stalked in and out of a medical facility? Not for traffic or safety reasons. Accord, Woods v White, 899 F2d 17 (7th Cir 1990}.

The Fourth Circuit had an analogous problem with sale of voter registration lists. Those lists, like the vehicle records here, contained personal information such as SSN's and addresses. Disclosure burdened the right to vote, in a manner not narrowly tailored to meet any legitimate state interest. Greidinger v Davis, 988 F2d 1344 (4th Cir 1993).

The Fourth Circuit also noted that "the harm that can be inflicted from the disclosure of a SSN to an unscrupulous individual is alarming..." 988 F2d at 1354. Greidinger drew an analogy to undue burdens on access to abortion.

This Eleventh, formerly Fifth Circuit has also repeatedly recognized a constitutional privacy interest in protecting sensitive personal information from invasive and damaging disclosure. Fadjo v Coon, 633 F2d 1172, 1175 (5th Cir - Fla 1981), is a leading national precedent from Florida. See also Plante v Gonzalez, 575 F2d 1119, 1132 (5th Cir 1978}. In the medical privacy context, that interest is strongest. See also Wolfson v Lewis, 924 F Supp 1413 (ED Pa 1996} (interpreting Florida privacy law}. That Court enjoined TV reporters from surveilling a health insurer's CEO's home. Reporters from "Inside Edition" had hounded the man and his family. That was mild compared with the actions of these defendants.

Similarly, in the stalking context, Florida appellate courts have denounced unconsented videotaping of neighbors, as not constitutionally protected. Goosen v Walker, 714 So2d 1149-1150 (Fla 4th DCA 1998). Another television group was found liable for privacy invasion in publicly disclosing facts concerning plastic surgery disfigurement. Doe v Univision, 717 So2d 63-65 (Fla 3d DCA 1998}.

Florida Privacy Law Authority

The recent Florida law on privacy in vehicle records is also strong, additional authority, supporting the medical privacy, liberty, and security interests asserted by Magnolia. F.S.A. 1999 pocket part, §119.07, Historical-Statutory Notes, page 37:

"Laws 1997, c. 97-185, § 6, provides:
"The Legislature finds that it is a public necessity that personal information in a person's motor vehicle record held by the Department of Highway Safety and Motor vehicles be exempt from public disclosure. Limiting access to motor vehicle records will afford the public an added measure of protection by preventing individuals from obtaining for malicious purposes personal information contained in the state's motor vehicle records."

That paragraphs appears written for this case.

The Florida public records law is full of protection for medical records, home addresses, telephone numbers, SSN's, names of spouses and children, locations of workplaces and the schools of children, and more. { F.S.A. §119 et seq}.

F.S.A. §119.07(bb) pp 33-37, moreover, specifically addresses the kind of DMV personal information Mr Raney collects on women. Only the owner of the vehicle may block access to the records. Non-owner passengers and drivers are not adequately protected in their privacy. §119.07{bb), p 34. Nor are owners given prior notice. Very few vehicle owners expect the kind of wholesale access to personal records for non-vehicular harassment that is facilitated by Florida DMV. The most basic, reasonable expectations of medical privacy are ignored by Mr Raney, aided by DMV, CompuServe, and TML.

FSA §119.07(bb)(1)-(14) allows limited unconsented release of DMV personal information under similar exceptions to those found in the federal laws FDPPA, 18 USC §2721. Mr Raney can not qualify for any exemption under FSA §119.07(b}(1)-{14). He also may have made material misrepresentations in gaining access. One of his applications {Tab 4} for addresses describes a "company" which does not exist. He claims to be a "Consumer Service Agency" which he is not, and an "Information Provider." These are at most a dubious play on words. All are unrelated to motor vehicle operation and safety.

As to FSA §119.07(bb) numbers 1-14:
1. Mr Raney does not use women's addresses for the motor vehicle and traffic safety concerns enumerated there. &3.
2. Mr Raney is not any kind of government agency.
4. Mr Raney is not verifying employment informdtion.
5. Mr Raney does not access women's addresses for use in judicial or agency proceedings. E.g., process service.
6. Research and statistical reports, with no contact with the private individuals, are not what Mr Raney does.
7. Insurance industry activities are not Mr Raney's work.
8. Mr Raney is not involved in vehicle repossession work.
9. Mr Raney is not a licensed private investigator, and even if he were, "cannot demonstrate a need based on a police report, court order, or a business or personal relationship with the subject(s) of the investigation[s]."
10.Mr Raney is not verifying commercial driver's data.
11.Mr Raney is not a road toll taker.
12.Mr Raney is not involved in bulk marketing, and the State DMV assuredly does not provide vehicle owners, much less passengers, any clear and conspicuous opportunity to protect their privacy.
13.Mr Raney has no written consents for his surveillance.
14.Lastly, Mr Raney's uses are neither authorized by law, nor related to the operation of motor vehicle safety.

Nonetheless, Mr Raney somehow manages, through one or more subterfuges, to access private personal information on women, staff, and physicians.

Mr Raney's activities are medically hazardous. He causes women to fear coming to AWCC in the first place, or to fear returning for follow-up. He causes women to delay and travel great distances for reproductive health care. He carelessly and recklessly inflicts emotional stress, with medically hazardous consequences.

FDPPA In Limbo

In four U.S Court of Appeals cases, between States and the United States, the public regulation part of FDPPA, 18 USC §2721 et seq, has been at issue. Two U.S. Courts of Appeal have upheld this national privacy-protection, stalking-prevention legislation. See Travis v Reno, 163 F3d 1000 (7th Cir 1998); Oklahoma v United States, 161 F3d 1266 (10th Cir 1998}. The Solicitor General has petitioned for certiorari in another, Condon v Reno, 155 F3d 453 (4th Cir 1998).

A few weeks ago, the Eleventh Circuit followed the Fourth in a case from Alabama, again not involving the private remedy aspects of FDPPA. That case is Pryor v Reno, No 98-6261 (11th Cir Apr 6, 1999). The Pryor opinion, principally on the Tenth Amendment, should not affect this case. First, it comes from a wholly different public records law. The Florida law discussed above virtually adopts FDPPA, rather than opposing it, and only the private remedies are involved here.

Second, the private enforcement features of FDPPA can operate fully without raising any Tenth Amendment concerns. Florida has virtually adopted, not contested, the FDPPA law. Private individuals and entities that invade privacy can be sued in Florida without impingement on state regulatory prerogatives. Private rights and remedies are fully separable.

Pryor in a note 10 dictum suggests a limit on the right of informational privacy to "intimate personal information given to a state official in confidence." Under FSA §119.07, the personal information given by patients for DMV records becomes intimate when used to identify, harass, and stalk medical patients for reasons unrelated to motor vehicle safety. The State itself recognizes the private, personal nature of that information, and attempts to limit access with a State-DPPA.

Magnolia has already shown that at least three Supreme Court cases afford protection to private identifying information such as here. Whalen v Roe and the two FOIA privacy cases discussed. Those cases control. This context differs from Pryor. Moreover, Magnolia has cited to this Court a substantial body of additional supporting federal appellate case law more directly relevant to the medical privacy and harassment, intimidation questions presented here. Pryor makes no suggestion to disregard those.

Lastly, the views of the Seventh and Tenth Circuits may prevail in less than a year. Nothing in Pryor enjoins or otherwise impacts privacy common law in the interim.

Relief Under §§1983-1986

Relief available under the Civil Rights and Klu Klux Klan Acts, 42 USC §§1983-1986, also strongly supplements that sought in other claims. The common law federal and state privacy-stalking claims support full relief. The defendant individuals and entities are abetted by the facilitation of State DMV. In fact, State DMV creates the problem with broad compulsory record requirements. DMV then sells to strangers through Internet intermediaries very personal information that tracks to a patient's doorway. Without this "State action," Mr Raney could not get the names, addresses, and other personal information of his many victims. These are additional and alternative grounds for granting relief.

Section 1983 reaches privacy and liberty invading acts under color of state law. Sections 1983-1986 also reach partially public and certain private conspiracies that injure distinct classes, as by race, gender, or other fundamental right. Here we have gender-specific harassment by Mr Raney directed primarily at fundamental protected rights.

To the extent that Bray v Alexandria, 506 US 263 (1993), suggests §1985(3} should be more narrowly interpreted, Congress expressly rejected Bray by name in the Legislative History of FACE, 18 USC §248, set out in U.S. Code Annotated. The use of the "hindrance clause" of the Klan Act, §1985(3), also survived Bray. See N.A.F. v Operation Rescue, 8 F3d 680 {9th Cir 1993). There is an uncanny resemblance between Klan mobs and these large, obstructive gatherings of individual clinic harassers.

LIABILITY OF COMPUSERVE & TML

The actual trespasses are not the direct responsibility of CompuServe or TML, of course. They provided the tickets and addresses, however, for hundreds of foreseeable stalking and invasion of privacy incidents. CompuServe and TML made possible those occurrences by providing, without consent, private personal information on women from this District. They provided this information, for a fee, to Mr Raney, who inputted patient license plate numbers. The numbers were "logged" onto organized sheets by date. CompuServe is responsible for hundreds, TML far less, although one incident can be a disaster. All are separate tortious offenses, and this Court should so determine on partial summary judgment.

RELIEF REQUESTED

WHEREFORE, plaintiffs respectfully request this Court to enter partial summary judgment as to liability on F.A.C.E., .trespass, and invasion of privacy grounds.

RESPECTFULLY SUBMITTED:
Roy Lucas <signed>
Trial Counsel
c/o PO Box 1433
Melbourne, FL 32902-1433
TEL: 1-407-725-2413
FAX: 1-407-725-3847

Scott R Rost
228 Park Ave North
Winter Park, FL 32789
TEL: 1-407-539-1140
FAX: 1-407-539-1126

Richard & Richard, P.A.
Colorado Office Plaza
725 Colorado Avenue
Stuart, FL 34994
TEL: 1-561-223-9600
FAX: 1-561-223-0859

ATTORNEYS FOR MAGNOLIA et al PLAINTIFFS.

CERTIFICATE OF SERVICE: The foregoing Motion and Memorandum of .plaintiffs Magnolia et al for Partial Summary Judgment have been served by the undersigned RL by First Class mail, postage prepaid, sent this Tuesday, April 27, 1999, to the following who are counsel for all appearing adverse parties:

Charles P. Scheeler, Esq
Piper & Marbury
38 So Charles St
Baltimore, MD 21201-3018
TEL: 1-410-539-2530
FAX: 1-410-539-0489
[for CompuServe, Inc]

John P. Marino, Esq
LeBoeuf, Lamb, Greene & Macrae
50 N Laura St, Ste 2800
Jacksonville, FL 32202
TEL: 1-904-354-8000
FAX: 1-904-353-1673
[for TML Services, Inc]

Frederick Nelson, Esq
PO Box 547503
Orlando, FL 32854-7503
TEL: 1-407-786-7007
FAX: 1-407-786-2705
[for Raymond & Cheryl Unterberger, Eric Olson, Meredith Raney, William LeStourgeon, John "Jay" Rogers, the Vanderbilts, Michelle Herzog, Pat McEwen, defendants]

BY:
Roy Lucas <signed>

EXHIBITS TO MOTION FOR SUMMARY JUDGMENT

TAB NO. -- NATURE OF EXHIBIT

1-- F.A.C.E., 18 USC §248, Freedom of Access to Clinic Entrances Act

2 -- Documents pertaining to United States v Unterberger & Olson, 97 F3d 1413 (11th Cir 1996)

3 -- Photographs of Unterberger/Olson in bicycle locks violating F.A.C.E., trespassing, et al

4 -- Deposition Excerpts of Meredith Raney concerning this WPB incident, taken in related action, concerning FACE violations, including logs from license plate recordings and Raney Application to TML for means of obtaining Patient Addresses [filed Separately]

5 -- Police Reports of Olson, Unterberger Arrests, Lake Clarke Shore Police, March, 1995

6 -- Videotape excerpts of WPB incident made by defendant Meredith Raney and other background on defendant activities [filed separately]