AWCC MEMORANDUM IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
AWCC MEMORANDUM IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO 97-1197-CV-ORL-19B

MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWCC, et al,
Defendants.

AWCC MEMORANDUM IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants AWCC et al respectfully submit this Memorandum in support of summary Judgment dismissing the complaint of Mr Raney:

ISSUES PRESENTED

I. Whether summary judgment should be granted where no plausible proffer has been made in sixteen months by plaintiff Mr Raney of evidence to support his AWCC--to City Police agency--employment claim?

II. Whether summary judgment should be granted dismissing Mr Raney on any other basis apparent from the record, previous briefings, and filings to date?

STATEMENT OF THE CASE

Meredith Raney filed this F.A.C.E. civil action on October 1, 1997, more than sixteen months ago (Doc 1, filed 10/01/1997). He alleged occurrences from as early as January 28, 1995, a full four years ago. The three occurrence dates were 1/28/95, 4/26/95, and 1/24/96.

One essential ingredient of Mr Raney's incident claims is that he must proffer some credible evidence of an employment or agency relationship between AWCC and the City Police, for each of the three arrest occurrences: 1/28/1995, 4/26/1995, and 1/24/1996. Mr Raney has in this conic period of more than 450 days made no proffer, however, because there is no credible evidence or inference to support him.

Nor may any such factual surmise permissibly or rationally be drawn from the facts that have been developed in these sixteen months of investigation and litigation.

Mr Raney has taken no depositions at all during the pendency of this case, not of the arresting officers, nor of any AWCC employee, witness, or US Marshall. The docket sheet only shows Mr Raney resisting and obstructing discovery, creating unnecessary time-consuming work for others.

In fact, Mr Raney and his counsel voluntarily absented themselves from the May 27, 1998 depositions taken by AWCC of the Police Chief, and one of the arresting officers (Attachments to Doc 47, filed 5/29/1998). Mr Raney later claimed lack of sufficient notice. He never substantiated such a position, or sought any relief, or re-deposed the officers during the intervening ten months, however, or any other officers at any time for that matter.

Mr Raney has also offered no documentary or testimonial evidence of agency: not in the form of contracts, assignment sheets, memoranda, W-2 or 1099 forms, affidavits, or anything at all, not even an humble authenticated E-Mail or Post- it®.

The agency claim by Mr Raney is reckless and frivolous. AWCC has so stated in virtually every filing throughout this case, as far back as the initial Answer over thirteen months ago, Affirmative Defenses ¶¶ 23-24 (Doc 17, filed 12/23/1997).

AWCC's "Memorandum in Opposition to Motion to Dismiss Amended Counterclaims" (Doc 55, filed 6/22/1998) enumerated on page two some five of the grounds put forth for rejecting Mr Raney's claims, including:

"... failure to proffer any evidence of any improper agency or other involvement by these defendants in the three arrests, which were entirely the work of the City enforcing a valid injunction, from the Supreme Court no less."

This argument point was not formally styled or compartmentalized as an AWCC Motion for Summary Judgment. Such a motion was already pending on three other substantial grounds. Multiple motions for summary judgment are known to be disfavored, so the further dispositive points were placed in the next relevant document.

The May 27, 1998, depositions of the police Chief and one arresting officer had concentrated on establishing absence of agency and probable cause.(Tab 2). These additionally dispositive results were faithfully reported to the Court in the "Reply of Defendants to Plaintiff's Memorandum in Opposition to Summary Judgment" (Doc 61, filed 7/2/1998).

Even the "Verification and Affidavit of Edward Windle" supporting the Third Party Complaint against the elusive Sphere Drake, paragraph three, denied any "control, authority, or employee relationship over the police. (Doc 78, filed 9/15/1998).

This defense has been ubiquitous in the case, and is now quite appropriately the basis for a sua sponta summary judgment which AWCC wholeheartedly supports.

Lack of agency is a valid, persuasive, and straightforward complete defense to Mr Raney's case and claims. And, there are many other substantial defenses as well.

From the factual and observational standpoint, Mr Raney also had the three incident occurrences videotaped. Those videos provide support for absence of agency, not for his implausible assertions. The tapes have been submitted to the Court, in at least two filings (Doc 47, filed 5/29/1998, by AWCC; Doc 85, filed 10/15/1998, by Mr Raney, with additional extraneous footage objectionable on numerous evidentiary grounds, such as lack of foundation, authentication, materiality, and unnecessary gore).

The videotapes of the three occurrences by Mr Raney do not even show the presence of any AWCC employee, nor of any Windle defendant. Only a Deputy U.S. Marshall is seen observing the occurrences. There is no evidence that any Windle was even in this county (Brevard) at the time of any incident, much less "employing" and "controlling" City Police.

Mr Raney has confessed that he conducted massive unwanted surveillance of AWCC, patients, physicians, and staff. He of all persons should know that the Windles were not at AWCC on the three occurrence days.

Mr Raney obsessively and compulsively maintained and produced daily surveillance sheets, a veritable "blackmail database" of every vehicle and individual entering and leaving AWCC for almost an entire decade (Deposition of Meredith Raney, July 18, 1998, passim). His invasive conduct is worse than that found improper in the important case of Liberti v Disney, 912 F Supp 1494 (MD Fla 1995).

Mr Raney's surveillance sheets for the three days in question show no evidence of Patricia or Ted Windle on the premises, much less any control over the City Police (Tab 4). Mr Raney has not produced those sheets to suggest otherwise. They are produced by AWCC and tabbed again to this Memorandum, and are revealing in many ways.

The Melbourne City police officers in the film are in uniform, and parked on City property. They moved professionally and promptly to arrest Mr Raney after he ignored repeated warnings to leave the buffer zone. They were acting as City Police on City property at all times and in every respect.(Tab 1).

There is not a shred of evidence that AWCC or the Windles were even aware of these three arrest occurrences when they took place. AWCC staff do not stare out the windows all day. They attempt to ignore the external harassment, which would be intolerable in any other health care context. They attend to patient needs, and have security cameras to record the sometimes bizarre outside events.

The police reports on the three arrest incidents are routine City reports, with no suggestion of AWCC-City Police agency. These too are again tabbed, and informative (Tab 1).

In his own deposition, additionally, Mr Raney admitted to having been unable to obtain corroborating statements from any of the police officers involved in the three occurrences during the year-plus of discovery. (Tab 3, Deposition of Mr Raney, pp 91-92, August 10, 1998). The police are cooperative with Mr Raney, but apparently unwilling to support his unfounded agency claims (police depositions, Tab 2).

The theory of "employment" put forth by Mr Raney is contrary to reason, and all law and fact, as meticulously developed in the defense of this action. The theory was not credible when first made. It remains insubstantial and illusory.

I. SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE NO PLAUSIBLE PROFFER HAS BEEN' MADE IN SIXTEEN MONTHS BY MR RANEY TO SUPPORT HIS INSUBSTANTIAL AWCC-CITY POLICE AGENCY CLAIM

The facts and the law fully support AWCC from its Answer up to date on the absence of agency issue.

A review of the Restatement, Agency, 2d [hereafter "Restatement] particularly reveals the utter absence of a valid agency claim.

Neither AWCC nor the City Police know of, or agreed to, any agency relationship. There is no contract, express or implied. Restatement §§ 11, 15, 16.

Law enforcement work is not likely a delegatable activity that a City could implicitly transfer to the control of a private entity such as AWCC. Restatement §§ 17, 18. The City employs and controls the police. The citizens on all sides are never satisfied, and never in control.

AWCC did not hire the City Police to arrest Mr Raney, and certainly could not fire the Police for anything. AWCC further could not and did not control the City Police, as the videos make abundantly clear. Cf General Building Contractors v Pennsylvania, 458 US 375 (1982)(no vicarious liability without intent and control in §1981 action), cited in Restatement §214, at p 250. Compare McGeorge v Continental Airlines, 871 F2d 952, 955 (10th Cir 1989):

"... plaintiff could not show defendant had control over the officer, and without control the officer could not have been Continental's agent."

The absence of control is shown by the fact that the Police Chief (deposition, Tab 2) simply stopped enforcing the protective 36-foot buffer zone approved by the Supreme Court in Madsen v WHC, 512 US 753 (1994), and applied to Mr Raney in Alf v Florida, post. He and the City stopped because local elected trial court judges would not apply Madsen and Alf to prosecute and convict for contempt of the injunction. AWCC was not a party to the state court contempt proceedings, and has lacked the resources of local counsel to proceed further in state court to add parties and take the appeals necessary to uphold Madsen.

The Court is correct and proper in concentrating on this dispositive agency issue. Summary judgment should be granted dismissing the complaint of Meredith Raney outright and with prejudice. Prior materials filed by AWCC may provide useful support, analysis, and case law.

II. SUMMARY JUDGMENT COULD FURTHER BE GRANTED ON OTHER GROUNDS APPARENT FROM THE RECORD, PREVIOUS BRIEFING, AND FILINGS TO DATE

AWCC has suggested as many as eight reasonable, separate and independent grounds for granting summary judgment dismissing the complaint of Meredith Raney as insubstantial. This is unusual, because the case by Mr Raney is so insubstantial in multiple ways. The several defenses have been asserted by AWCC at every written opportunity. Every effort has been made to dispose of this case finally according to law. Compare Haskell v Washington Township, 864 F2d 1266 (6th cir 1986)(appellate reversal on over twenty disputed points in controversial reproductive health ease - case settled on remand after firm dispositive rulings).

1. ABSENCE OF "NO PROBABLE CAUSE" ALLEGATION

The initial "Defendants' Motion for Summary Judgment ..." p 2 (Doc 46, filed 5/29/1999} points out:

"... Raney did not even allege absence of probable cause or show any basis for inferring wrongful intent .... "

The Court could grant summary judgment on that point also at any time. Probable cause to arrest Mr Raney was abundantly present here during each of the three occurrences, as a matter of law, from day one.

AWCC previously cited to the Court the almost dispositive Eleventh Circuit case of Marx v Gumbinner, 905 F2d 1503, 1506-1507 (11th cir 1990)(absence of probable cause a total defense to §1983 claim); accord, Herren v Bowyer, 850 F2d 1543, 1547 (11th Cir 1988); Howell v Tanner, 650 F3d 610, 614 (5th Cir 1981); Vermette v Ludwig, 707 So2d 742, 746 (Fla 4th DCA 1998)(same).

Marx and supporting cases are yet another ground for dismissing the complaint of Mr Raney on summary judgment. As the Marx panel stated:

"When the facts are not in dispute, whether probable cause existed is a question of law, and summary judgment is appropriate." 905 F2d at 1506.

Probable cause on these facts is explained in the tabbed police reports previously submitted, and the police depositions (Tabs 1, 2). It is overwhelmingly present. Mr Raney crossed into the forbidden 36-foot buffer zone approved in Madsen v WHC, 512 US 753 (1994). He had been a regular harasser and arrestee at AWCC. He was plainly in contempt.

Most importantly, and not previously acknowledged by the Court, Mr Raney had been convicted under Madsen as acting in concert or participation. His convictions were upheld, and certiorari denied. Alf v Florida, 116 SCt 65, 133 LEd2d 27 (1995), denying cert to 651 So2d 691,692, 1211 (Fla 5th DCA).

Alf is the Madsen for harassers of AWCC not named in the original injunction. Alf means that it is illegal for Mr Raney and 107 others to cross over into the AWCC buffer alone. Alf means that Mr Raney can be prosecuted each and every time he crosses over the street and enters the protective AWCC buffer zone, rain or shine.

Alf also means it is utter nonsense for Mr Raney to claim that his contempt suddenly became a federally protected right when FACE was passed by Congress. All of the uncovered Alf documents have been filed with the Court.

The collateral estoppel impact of Alf on the specific buffer zone/in--participation issue is at least as strong as the analogous "hazardous occupancy" question in the persuasive opinion of Benline v City of Deland, 731 F Supp 464 (MD Fla 1989).

If any uncertainty about Alf remains, AWCC is available for oral argument and clarification. Mr Raney has never responded to the implications of Alf at all. The Supreme Court surely recalls that Mr Raney was the gun-gesturing harasser following a terrified doctor in the Madsen Record. justice Stevens and the Florida Supreme Court wrote about Mr Raney very specifically, as AWCC detailed point-by-point in earlier memoranda. That and the meaning of Alf must be made clear here and now.

The Eleventh Circuit as recently as last week published a further application and analysis of Marx in the newly reported case of Rankin v Evans, 133 F3d 1425, 1435-1436 (11th Cir 1998). The Court held:

"We conclude that probable cause existed as a matter of law and that the existence of such probable cause defeats both the federal and state claims." 133 F3d at 1436.

Rankin reiterated, appropos to Mr Raney:

"However, plaintiffs had the burden of demonstrating the absence of probable cause in order to succeed in their §1983 claim." 133 F3d at 1436.

The Eleventh Circuit further cited Evans v Hightower, 117 F3d 1318, 1320 (11th Cir 1997), and Rivas v Freeman, 940 F2d 1491, 1496 (11th Cir 1991).

Here Mr Raney has not even seen fit to allege absence of probable cause. He has not and could not put forth any proffer of such an absence in any event. The factual context is clear and captured on tape and in the law books.

Mr Raney's federal claims additionally fail for the probable cause reasons of Marx and Rankin, as Mr Raney knew or should have known before even filing this insubstantial lawsuit.

The Court may and should make a finding that on the agency, probable cause, and other issues, Mr Raney had no plausible case at the very beginning.

2. DERIVATIVE QUALIFIED

Derivative qualified immunity for AWCC has also been a complete and appropriate defense from the very beginning of this lawsuit. The City Police have under our federal civil rights jurisprudence a qualified immunity, unless they violate clearly established rights. That is core black letter law under long-standing and regularly repeated Supreme Court and Eleventh Circuit precedent. See, e.g., Behrerus v Pelletier, 516 US 299, 306 (1996); Mitchell v Forsyth, 472 US 511, 526 (1985); Gonzalez v Lee County, 161 F3d 1290, 1295 (11th Cir 1998); Vista Community Services v Dean, 107 F3d 840 (11th Cir 1997). See also Fridovich v Fridovich, 598 So2d 65 (Fla 1992)(private qualified immunity privilege).

Mr Raney has no such clearly established rights, not any at all on these facts. AWCC may accordingly assert a derivative qualified immunity defense, as in Norton v United States, 581 F2d 390 (4th Cir 1978), and a veritable textbook of cases from the Eleventh Circuit since then. E.g., Menoer v Hammonds, 1998 WI, 44530 (11th Cir 1998); Beauregard v Olson, 84 F3d 1402 (11th Cir 1996); Leeks v Cunningham, 997 F2d 1330 (11th Cir 1993). AWCC may partake of any defense available to the City or Police, plus the defenses applicable to AWCC in particular. AWCC and the Windles are not charged with any individual wrongful acts of their own, only derivative responsibility for police conduct that is qualifiedly privileged.

3. RANEY "NOT IN A FACILITY" AT ALL

AWCC reiterates that as a conclusive matter of law Mr Raney can no longer pretend that he was "in a facility" as expressly required by Congress: the explicit language of F.A.C.E., 18 USC §248. That language and legislative history are not ambiguous. Medical clinics and buildings are protected from harassment and intimidation. The legislative history is published. Outdoor sidewalk counselors and dangerous wandering zealots are the problem to be protected against. They make up Internet Hit Lists, Wanted Posters, and blackmail databases on women who go to reproductive health facilities. Some glue doors shut and chain themselves to gates. Some encourage the shooting of doctors. Mr Raney is one of their leaders, the master of surveillance and "Wanted Posters."

Mr Raney was outdoors in the sun and rain, in the street and on the sidewalk, during the three occurrences of this case. He was not in a counseling facility, He surveils women from behind a tree across the street in his big red truck. No facts are disputed about that.

Mr Raney's suggestion that the public sidewalk is "a facility" is an invitation for the Court not to be persuaded, but to be misled.

The Court should view the clinic videos on file, with or without counsel. These are essential to fully understanding the case.

The Court should consider the AWCC premises Map printed and published by the Supreme Court of Florida (Tab 5). Indeed, an actual "viewing" of the AWCC premises on Dixie Way in Melbourne, FL, would be entirely appropriate, supplemented by videos of the scene and photographs. These counsel have quietly tagged along on many "viewings" by federal Judges in the past. A view can be worth a dozen briefs, in showing how clear and undisputed the facts are as to "facility."

The Court should also consider what Chief Justice Rehnquist said about the "36-foot buffer zone" in Madsen v WHC, 512 US 753 (1994). The zone protects women from harassment. It does not turn the sidewalk into a facility for harassing patients concerned for their safety and protection from unwanted intimidation.

Justice Stevens, concurring, pointed out other reasons for a protective buffer zone. One known individual chased a medical doctor down the highway and made a chilling gun gesture. That was our own Mr Raney, not "counseling," not "in a facility," but on the highway in the manner of the Klan.

4. OTHER

AWCC preserves the Rooker-Feldman collateral estoppel and Younger-McKusick-Hoover defenses. These are complex questions where reasonable jurists and litigators my differ, and argument might have been beneficial and clarifying. Mr Raney made no jurisprudential response to these arguments. He never advised the Court of his parallel then-pending state court proceeding on the same three incidents, nor of Alf-Madsen. Those papers were uncovered and filed, but have not been accorded their full persuasive and relevant weight by the Court.

AWCC had no adequate opportunity to respond to the views and approaches of the Court on collateral estoppel and abstention. There is a great body of relevant case law that arguably points the other way. E.g., News Journal Corp v Foxman, 939 F2d 1499 (11th Cir 1991). A response would at the very minimum ensure that all substantial arguments were offered and taken into account, without the necessity of appellate review.

As for Rooker, for instance, the issue to AWCC is that the 36-foot buffer zone is validly applied to Mr Raney in Madsen-Alf, as a matter of federal constitutional law. Mr Raney had every opportunity to litigate that issue then and there. He did. He lost. Now comes F.A.C.E. But FACE cannot overrule Madsen-Alf. Chief Justice Rehnquist would have something to say about that. It does not matter that FACE is new, nor that the three incident charges were not fully prosecuted, for whatever reasons. The core issue underlying these incidents is the validity of the. buffer zone, an issue predetermined by Madsen-Alf.

The present case, while for damages, also creates vast conflict with the ongoing enforcement of a state court injunction, as well as confusion for the then-pending parallel state court proceeding.

5. LITIGATION COSTS AND FEES

The Eleventh Circuit has crafted a persuasive body of law as to when prevailing defendants may recover litigation costs and fees. This is such a case.

Absence of agency was raised in the AWCC Answer at the outset. Mr Raney had no rational basis for asserting agency, and has never supported his empty claim.

Probable cause to arrest Mr Raney based on Madsen and Alf was clear at the time of each arrest. Mr Raney never remotely made a colorable claim to the contrary. He never bothered to respond to the case law. He was a party to Alf, but did not disclose that significant fact to the Court. AWCC had to dig deeply in faraway places to find the relevant Alf petition for certiorari. It bears Mr Raney's name twice as a losing defendant on the very same factual claim he makes here, to invade the 36-foot protective buffer zone. Alf applied Madsen to 108 more defendants, including Mr Raney not once but twice. This must be understood clearly to resolve this case.

That Mr Raney was never "in a facility" within the statutory language of F.A.C.E., 18 USC §248, also is clear. He was not "counseling." He was out on the sidewalk with police defying an injunction that had been upheld by Chief Justice Rehnquist and the Supreme Court in Madsen. This was never a question of disputed fact at all.

Applying the facts and legislative history to comprehend "facility" is the only issue on the application of F.A.C.E., and it should not be a perplexing one.

The Alf prosecutions had already applied Madsen to exclude Mr Raney from the buffer zone forever when this misguided case began. AWCC searched, found, and filed all of the supporting Alf documents with this Court. The Court must see through that subterfuge. The sidewalk is not the facility. The sidewalk in front of this Court is not the Court. AWCC needs the same kind of buffer zone this Court has. Madsen extended a protective wall to exclude dangerous harassers and protect AWCC. Raney has never come within the very statute in question. He was outside in fact and law the day he filed this insubstantial lawsuit. He only wanted further to deplete the resources of AWCC. He has long since given up on persuasion, and wholeheartedly gone into coercion and intimidation.

Derivative qualified immunity for AWCC as well has been clear and obvious from the very beginning. The City Police have a qualified immunity, unless they violate clearly established rights. Mr Raney has no such clearly established rights, not any at all on these facts. AWCC may accordingly assert a derivative immunity defense, as in Norton v United States, 581 F2d 390 (4th Cir 1978), or any defense available to the Police, plus their own defenses.

Similarly, the Rooker-Feldman and Younger-McKusick-Hoover arguments had considerable merit, even though the Court disagreed. Another Court might not. The Eleventh Circuit has Rooker and Younger matters regularly, and reversal is not unknown, as is often the case with these controversial reproductive health cases. Work done on those issues was inextricably intertwined, but was indisputably valuable to the defense and should be compensated fully.

Dispositive Eleventh Circuit decisions on "prevailing defendant" litigation costs and fees have previously been provided to the Court. These include: Christiansburg Garment Co v EEOC, 434 US 412, 421 (1978); Turner v Sungard, 91 F3d 1418 (11th Cir 1996)(fees and costs to prevaling defendants); Geaneas v Willets, 911 F2d 576, 582 (11th Cir 1990)(double costs and fees); Baker v Aldeman, 158 F3d §16 (11th Cir 1998), and many more. See particularly the thorough analysis in Hahn v City of Kenner, 1 F Supp2d 614 (ED La 1998); Strain v Kaufman County, 23 F Supp2d 698 (ND Tex 1998).

One leading fee decision in the reproductive health field is Guam Society of Ob/Gyn v ADA, 100 F3d 691 (9th Cir 1996). See also Ragsdale v Lumpkin, 94 F3d 647 (7th Cir 1996); Maltzer v Provident Life, 843 F Supp 692 (MD Fla 1993); FIGA v R.V.M.P. Corp, 681 F Supp 807 (SD Fla 1988).

This lawsuit can come to an end now. Summary judgment can be granted by this Court on one of several grounds. The case law is massive. The Court also has full and ample authority to award full litigation expenses, costa, and fees to AWCC counsel. Such a decision would be affirmed by the Eleventh Circuit.

CONCLUSIONS

For the reasons set out in this memorandum and the earlier filings, this Court should enter summary judgment dismissing the complaint of Meredith Raney with prejudice, on at least one ground, if not several.

The Court should further find as a matter of law that the prevailing defendants should be awarded reasonable litigation fees and costs. AWCC requests an additional 30 days to submit briefs and affidavits on the fee and cost amounts and issues. The Court may properly impose Joint and several liability for the latter onto Mr Raney, his counsel, and the insurance defendants, inasmuch as insurance liability has already been briefed.

RESPECTFULLY SUBMITTED:
Roy Lucas <signed>
DC # 153957
c/o PO Box 1433
Melbourne, FL 32902-1433

Susan England
FL # 0186018
2805 Lakeview Drive
Fern Park, FL 32730
ATTORNEYS FOR DEFENDANTS AWCC et al

CERTIFICATE OF SERVICE: This AWCC Memorandum in Further Support of Motion for Summary Judgment has been served by First Class Mail, postage prepaid, dispatched this 9th day of February, 1999, by the undersigned to Christopher Sapp, PO Box 1012, Lehigh Acres, FL 33970, and Lawrence Siff, PO Box 149022, Coral Gables, FL 33114-9022.
BY: Roy Lucas <signed>