ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PRINCIPAL BRIEF OF APPELLANT

Appeal No. 99-14122-I

In The UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

MEREDITH T. RANEY, JR.,
Appellant,

vs.

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
NUMBER 97-1197-CIV-ORL-19B

PRINCIPAL BRIEF OF APPELLANT,
MEREDITH T. RANEY, JR.

CHRISTOPHER F. SAPP
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Allstate Insurance Company and Allstate Floridian Insurance Company, Homeowner insurer for Meredith T. Raney, Jr. and Plaintiff in Allstate Insurance Company v. Raney.[1]

Aware Woman Center for Choice, Inc., Defendant/Appellee in this case and Defendant in Roe, II v. Aware Woman Center For Choice, Inc.[4]

Clinton, William J., President of the United States and adverse witness in Smith v. McDougall.[5]

Coar, David H., U.S. District Judge presiding in N.O.W. v. Scheidler.[2]

Deleware Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler.[2]

Egherman, William P., M.D. Defendant in Roe, II v. Aware Woman Center for Choice, Inc.[4]

England, Susan, Attorney for Defendants.

Fawsett, Patricia C., U.S. District Judge presiding in this case and in Raney v. City of Melbourne and also Roe, II v. Aware Woman Center for Choice, Inc.[4]

Florida League of Cities, Liability underwriter in Raney v. City of Melbourne.[3]

Florida Sheriffs' Association, Liability underwriter in Smith v. McDougall.[5]

Hirsh, Michael, Attorney for Plaintiff.

Hogreve, Lisa, Attorney for Defendants.

Lucas, Roy, Attorney for Defendants/Appellees.

McDougall, John, Sheriff of Lee County, Florida and Defendant in Smith v. McDougall.[5]

Melbourne, City of, Defendant in Raney v. City of Melbourne.[3]

Murphy, Timothy, Defendant in N.O.W. v. Scheidler.[2]

Nimmons, Ralph W., Jr., U.S. District Judge presiding in Smith v. McDougall.[5]

National Organization of Women (N.O.W.), Plaintiff in N.O.W. v. Scheidler.[2]

National Organization of Women (N.O.W.), Florida Chapter.

Pro-Life Action League, Inc., Defendant in N.O.W. v. Scheidler.[2]

Raney, Meredith T., Jr., Plaintiff/Appellant in this case, Plaintiff in Raney v. City of Melbourne and Defendant in Allstate Insurance Company v. Raney.[1]

Reno, Janet, Attorney General of the United States, probable Defendant in Smith v. McDougall.[5]

Roe, Jane, II, Fictitious name of Plaintiff in Roe, II v. Aware Woman Center for Choice, Inc.[4]

Sapp, Christopher F., Attorney for Plaintiff/Appellant in this case and for the Plaintiff in Roe, II v. Aware Woman Center for Choice, Inc. [4] and for Plaintiffs in Smith v. McDougall [5] and Defendant in Allstate Insurance Company v. Raney.[1]

Scheidler, Joseph M., Defendant in N.O.W. v. Scheidler. [2]

Scholberg, Andrew, Defendant in N.O.W. v. Scheidler. [2]

Sienkiewicz, Ray, Plaintiff in Smith v. McDougall. [5]

Smith, Robert, Plaintiff in Smith v. McDougall. [5]

Summit Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler. [2]

Torpy, Vincent G., Attorney for Defendants.

Wilson, Charles R., Judge - United States Court of Appeals, Eleventh Circuit, probable Defendant in Smith v. McDougall. [5]

Windle, Edward W., Jr., Defendant/Appellee in this case and Defendant in Roe, II v. Aware Woman Center for Choice, Inc. [4]

Patricia B. Windle, Defendant/Appellee in this case and Defendant in Roe II v. Aware Woman Center for Choice, Inc.[4]

NOTES OF RELATED CASES ON TRIAL LEVEL

[1] Allstate Insurance Company and Allstate Floridian Insurance Company vs. Meredith T. Raney, Jr., et al., Eighteenth Judicial Circuit for Brevard County, Florida, Case Number 99-25178 CAD: a declaratory action regarding home owner's insurance coverage.

[2] NATIONAL ORGANIZATION FOR WOMEN, INC., and its women members and other women who use or may use the services of women's health centers that provide abortions; DELAWARE WOMEN'S HEALTH ORGANIZATION, INC., and SUMMIT WOMEN'S HEALTH ORGANIZATION, INC., on behalf of themselves and all other similarly-situated clinics, v. JOSEPH M. SCHEIDLER; ANDREW SCHOLBERG; TIMOTHY MURPHY; PRO-LIFE ACTION LEAGUE, INC., and OPERATION RESCUE, U.S. District Court for the Northern District of Illinois, Eastern Division, Case Number 86 C 7888: national injunction which provides for pro-life sidewalk counselors helping women approaching the door of abortion clinics (See para. V.4.c.).

[3] Meredith T. Raney, Jr. v. City of Melbourne, Florida, U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-416-Civ-Orl-19B: F.A.C.E. action for intimidation of sidewalk counselor at Aware Woman by the Melbourne City Police.

[4] Jane Roe, II v. Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle and William P. Egherman, M.D., U.S. District Court for the Middle District of Florida, Orlando Division , Case Number 99-850-CV-19-A: F.A.C.E. action by a young woman who was held down to keep her from leaving Aware Woman by four assistants to the abortionist who then mutilated her internally.

[5] Robert Smith and Ray Sienkiewicz v. John McDougall, individually and as Sheriff of Lee County, Florida, et al., U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 99-385-CIV-FTM-21: F.A.C.E. action against local sheriff whose violations of sidewalk counselors' rights was procured by federal officials.

STATEMENT REGARDING ORAL ARGUMENT

Appellant hereby respectfully requests the opportunity to present oral argument on the issues raised in this appeal for the reason that this case is critical to a constructive change in pro-life activism and a new emphasis in offering love to desperate pregnant women as they approach abortion clinics.

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TABLE OF CONTENTS
(Omitted from Internet version)

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TABLE OF CITATIONS

CITATION PAGE
MARSH v. ALABAMA, 66 S.Ct. 276 (1946) 25
MADSEN v. WOMEN'S HEALTH CENTER, INC.,
114 S.Ct. 2516 (1994)		 24
CHEFFER v. RENO, 55 F. 3d 1517 (11th Cir. 1995) 25
McKUSICK v. CITY OF MELBOURNE
96 F.3d 478 (11th Cir. 1996)		 28
MAYS v. U.S. POSTAL SERVICE,
122 F.3D 43 (11th Cir. 1997)		 20, 31
EPL, INC., v. USA FEDERAL CREDIT UNION,
173 F.3D 1356 (11th Cir. 1999)		 20, 29
GILBERT v. SEARS, ROEBUCK AND CO.,
899 F.Supp. 597 (M.D.Fla. 1995)		 25, 26
JOHNSON v. WEINER, 19 So.2d 699, (1944) 26
U.S. CONSTITUTION, ARTICLE 1, SECTION 8 25
FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT
18 U.S.C. §248 (F.A.C.E.)		 4, 25, 27
FEDERAL RULES OF CIVIL PROCEDURE -
    RULE 19
 32
    RULE 21
 32
    RULE 56
 30
    RULE 39
 32
    RULE 60
 32
BLACK'S LAW DICTIONARY, SIXTH EDITION,
"INSTRUMENTALITY" at page 801		 26
N. B. THE JURISDICTIONAL CITATIONS ARE OMITTED 4

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STATEMENT OF JURISDICTION

Meredith T. Raney, Jr. brought the civil action in the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. §1391 (b) because the claim arose in the District and also because the Defendants reside in this District. The civil action seeks damages and other relief for violation of that Act of Congress known as Freedom of Access to Clinic Entrances Act (F.A.C.E.), 18 U.S.C. §248; thus the claim arises under the laws of the United States, according to 28 U.S.C. §1331. Additionally, original jurisdiction lies in the District Court under 28 U.S.C. §1343 (a)(4) as this is a civil action to recover damages under an Act of Congress providing for the protection of civil rights.

This appeal to the United States Court of Appeals is brought pursuant to 28 U.S.C. §1291 from a final decision of the District Court and denial of post-judgment motions.

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STATEMENT OF ISSUES

1. Did the District Judge err when, believing that a pro-life counselor providing reproductive health counseling and referral services had no legal right to be on the abortion clinic sidewalk, granted summary judgment against him because there was no colorable evidence in the record that the Melbourne City Police were acting as agents of Aware Woman where they threatened and obstructed the counselor?

2. Did the District Judge err when she denied two post-judgment motions seeking to change the summary judgment which held that the police were not agents of the abortion clinic, where the abortion clinic for months thereafter persisted in an appeal seeking to establish just the opposite, namely that the police were working for the abortion clinic?

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STATEMENT OF THE CASE

NATURE OF THE CASE

Meredith T. Raney, Jr. sued Aware Woman abortion clinic, its owners and operators for three violations of Freedom of Access to Clinic Entrances Act (F.A.C.E.) He was unlawfully prevented from providing pro-life reproductive health counseling and referral services at the abortion clinic in Brevard County, Florida.

The Plaintiff, Meredith T. Raney, Jr. is called the "counselor".

The Defendants , Aware Woman Center For Choice, Inc, Edward W. Windle, Jr. and Patricia B. Windle are jointly called "Aware Woman".

COURSE OF PROCEEDINGS

Complaint was filed in District Court in Orlando, Florida on October 1, 1997.

R1-1. Defendants filed a Motion to Dismiss pursuant to Rule 12(b) on October 22, 1997. R1-7. The Order denying this Motion was filed December 3, 1997. R1-13. Discovery was sporadic and interspersed with assorted non-dispositive motions. On May 29, 1998, Aware Woman moved for a summary judgment. R2-46. The counselor, in turn, moved for summary judgment, R3-83, with a supporting affidavit and video tapes of the three F.A.C.E. violations. R3-85.

Both motions for summary judgment were denied on December 16, 1998. R-4-100. Thereafter, Aware Woman appealed the denial of their motion for summary judgment to the United States Court of Appeals, Eleventh Circuit. R3-107. This

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appeal was denied for lack of jurisdiction on July 28, 1999. R5-147.

In the meantime, the District Court vacated the section of the Court's Order of December 16, 1998 and reconsidered the Aware Woman's motion for summary judgment. A second time, the District Court denied the motion for summary judgment filed by Aware Woman and notified the parties that she was considering granting summary judgment sua sponte in favor of Aware Woman. R4-121.

On February 26, 1999, summary judgment in favor of Aware Woman was granted sua sponte on all three counts of the Complaint. Trial set for March 1, 1999 was unnecessary. The Clerk was ordered not to enter judgment until the interlocutory appeal was concluded. R5-140. Aware Woman nevertheless continued their appeal. Thus, it was not until August 11, 1999 that judgment for Aware Woman was entered only after the U.S. Court of Appeals dismissed the first appeal. R5-148.

The counselor asked the District Court to alter or amend the judgment and also moved for relief from the judgment on August 23, 1999. R5-150. An endorsed order denying these motions was signed on September 13, 1999. R5 (There is no Document number.)

Notice of Appeal was filed by the counselor on November 8, 1999. R5-154. The Aware Woman application for fees and expenses was denied on November 1, 1999. R5-156.

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BACKGROUND

The activity on abortion clinic sidewalks by the pro-life community has taken various forms. There are demonstrations, protests, rescues or blockades, prayer vigils and preaching. None of these activities is protected by F.A.C.E.

More and more pro-lifers are providing counseling and referral services which are site-specific and person-specified. This is sometimes called 'sidewalk counseling' or 'referral counseling'. It differs substantially from the other pro-life activities in that its main focus is the individual pregnant woman and her particular problems: she is offered love and help. The pro-life counselor is non-obstructive and non-threatening and speaks in a soft, conversational tone of voice.

The help offered may be financial, or perhaps directions to a shelter for abused women. Maybe the woman wants to go to a crisis pregnancy center. Often she cannot tell from the business name that she is being taken to an abortion clinic and is pleased to learn from the sidewalk counselor the true nature of the business and any other vital information, such as the deaths and injuries which have occurred at this particular abortion clinic.

Invariably the services recommended by the pro-life counselor are free. The opportunity to get a pregnancy test at no charge at a crisis pregnancy center has

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proved - in many cases - to be a catalyst for a decision to choose life for the unborn child.

The pro-life counselors are not present at the abortion clinic to debate the legality or morality of abortion. They have a 'soup kitchen' attitude: there are problems here to be solved. Scared and troubled women need protection and comfort. Any sermons must wait.

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STATEMENT OF THE FACTS

Meredith T. Raney, Jr. received training as a pro-life counselor. Topics of the course included:
1. Pregnancy testing.
2. Fetal development.
3. Prenatal care.
4. Abortion procedures.
5. Birth control.
6. Community resources for pregnant women.
7. Biblical teaching on abortion.
8. Issues and decision making.

This reproductive health service course was completed prior to 1994. The counselor also viewed various video tapes dealing with abortion. R3-85-1&2.

The facility where the counselor provided referral and counseling services dealing with pregnancy and its termination was the Aware Woman abortion clinic at 1564 Dixie Way, Melbourne, Florida. Part of the facility was public, some was private. There was no sign at the facility showing what services were offered there. R3-85-2.

The Defendants do not know what the boundaries of this F.A.C.E. facility are. The counselor has shown that the facility consists of the original Aware Woman

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property plus the Madsen buffer zone. The public sidewalk is inside the boundaries of this facility. R3-85-2.

At the times in question, Aware Woman had Melbourne City Police Officers at their beck and call. They stationed these police armed with guns in the facility whenever they wanted, especially when abortions were being done. The police were told when to come and when to go. They were told who to keep off the property and who to allow on. They brought vehicles with them which were used as guard posts. No municipal ordinances or state laws were being enforced: only the Aware Woman desires. R3-85-3.

Stationed just like guard dogs, the Melbourne City Police threatened, intimidated and obstructed Meredith T. Raney, Jr. on the three occasions described in his civil action. The details can be viewed in the video tapes which are part of the record of this case. R3-85-3.

In addition to the video recordings, the counselor went to great detail in his fourth affidavit to describe the relationship between the Melbourne City Police and Aware Woman :

The neighbor living across the street from Aware Woman abortion clinic had observations very much like the counselor's:

A second neighbor also recalls the time when the Melbourne City Police worked at Aware Woman:

The facts of this case as stated in the foregoing affidavits are confirmed by the video tapes (R3-85) and many other portions of the record.

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STANDARDS OF REVIEW

FIRST ISSUE: The Court of Appeals reviews a district court's grant of summary judgment de novo, with all facts and reasonable inferences therefrom reviewed in the light most favorable to the nonmoving party. The Court of Appeals applies the same standard as the district court. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. EPL, INC., v. USA FEDERAL CREDIT UNION, 173 F.3d 1356 (11th Cir. 1999) at page 1360.

SECOND ISSUE: The Court of Appeals reviews rulings on post-judgment motions to alter or amend to determine if there has been an abuse of discretion by the district court and, where reconsideration is requested, that the new evidence was not available prior to the judgment in question. MAYS v. U.S. POSTAL SERVICE, 122 F.3d 43 (11th Cir. 1997) at page 46.

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SUMMARY OF THE ARGUMENT

FIRST ISSUE:This Court of Appeals has already reviewed the constitutionality of F.A.C.E. and found that it is authorized by the Commerce Clause of the U.S. Constitution as a regulation of Interstate Commerce. The sidewalk which ends at the entrance of the abortion clinic is thus open to the public. One or two referral counselors can offer love and help to the women going to and coming from the abortion clinic in a non-threatening, non-obstructive manner. Such a counselor is not automatically trespassing or in violation of an exclusion injunction such as that of the Madsen case. The district court erred in excluding Mr. Raney from F.A.C.E. protection.

Meredith T. Raney, Jr. had received training as an abortion counselor before the F.A.C.E. Act was passed. Following its passage, he tried constantly to provide reproductive health service counseling and written referral information on the sidewalk at the Aware Woman abortion clinic. The three times that he walked onto the sidewalk he was removed by the Melbourne City Police, who were instruments of Aware Woman. While there was a buffer zone around the abortion clinic which had been approved by the U.S. Supreme court in the Madsen case, the counselor was not specifically subject to the injunction nor was he acting in concert with anyone who was.

After notice from the district court that it was considering a sua sponte motion

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for summary judgment on the issue of liability for the actions of the Melbourne City Police during the three instances in question, the counselor supplied additional affidavits and evidence.

A review of the affidavits and other materials filed in this case show that the Melbourne City Police were instruments of Aware Woman. The police came to the Aware Woman premises when told to come. They were stationed at Aware Woman for hours on end where they refrained from enforcing municipal ordinances and state statutes. The police only enforced the wishes of Aware Woman. They were paid by Aware Woman and when Aware Woman no longer wanted them around on a particular day, Aware Woman dismissed them. The people that the police threatened and arrested were the non-customers of Aware Woman. The police abused this pro-life F.A.C.E. protected counselor, threatening him and obstructing him as instruments of Aware Woman.

A fair minded jury would have no trouble in deciding that the Aware Woman people controlled or procured these F.A.C.E. violations. Thus the district court erred in granting summary judgment for Aware Woman.

SECOND ISSUE: The district court provided Aware Woman with a summary judgment finding that the police were not its agents on February 26, 1999. The district judge ruled that this judgment would not be entered until the appeal which Aware Woman had pending was concluded. Certainly the proper thing for Aware

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Woman to do was to thank the trial court and dismiss the appeal. Instead, Aware Woman continued their appeal, partly on the grounds that they had immunity from suit because the police, who were working for them, had immunity from suit. Had the summary judgment been decided on correct facts, Aware Woman would have accepted the decision immediately and dismissed their appeal.

Instead, five months after the summary judgment was signed, the U.S. Court of Appeals, dismissed the Aware Woman appeal. This refusal to accept the district court's decision by Aware Woman was a fact not known to the counselor until after February 26, 1999. Thus, it was compelling evidence in favor of the counselor which could only be brought to the district court's attention by a post-judgment motion.

Since this additional evidence made it crystal clear that Aware Woman controlled the police, or at least was acting in concert with the City of Melbourne in their control, the summary judgment should have been set aside and the City of Melbourne joined as a defendant for trial of this case. And the arguments presented herein demonstrate that the district judge abused her discretion by refusing to alter or amend the judgment.

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ARGUMENT AND CITATIONS OF AUTHORITY

FIRST ISSUE: YES. THE DISTRICT JUDGE DID ERR WHEN , BELIEVING THAT A PRO-LIFE COUNSELOR PROVIDING REPRODUCTIVE HEALTH COUNSELING AND REFERRAL SERVICES HAD NO LEGAL RIGHT TO BE ON THE ABORTION CLINIC SIDEWALK, SHE RULED THAT THERE WAS NO COLORABLE EVIDENCE THAT THE POLICE WHO THREATENED AND OBSTRUCTED THE COUNSELOR WERE AGENTS OF THE ABORTION CLINIC.

There are three problems with the summary judgment from which this appeal is taken.

First, the district judge did not believe that it was lawful for the counselor to be present on the sidewalk, inside the buffer zone. R5-140-9. This belief is erroneous for the following reasons.

The buffer zone was approved by the United States Supreme Court Madsen v. Women's Health Center, Inc. 114 S.Ct. 2516 (1994). The injunction lay against several named persons, none of whom is the counselor (Id). It also applied to those persons acting in concert with the specific defendants (Id). The counselor was not acting in concert with any Madsen defendants. R1-12-1&2.

Regardless of the ownership of the sidewalk on which the counselor is standing, it is part of the route leading to the entrance of a F.A.C.E. facility. This sidewalk

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is open to the public. R3-85-2&3 plus segments 3, 4 and 5 of attached video tape.

Shortly after the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. §248, was enacted, a case testing its constitutionality was brought against Charles R. Wilson and Janet Reno in their official capacities as U.S. Attorney for the Middle District of Florida and U.S. Attorney General respectively. Cheffer v. Reno 55 F. 3d 1517 (11th Cir. 1995). After the district court found the Act to be valid, an appeal was taken to this Court of Appeals (Id).

Once again the constitutionality of F.A.C.E. was approved. This Court of Appeals acknowledged the right of Congress to pass this Access Act under Article I, Section 8 of the U.S. Constitution because Congress had determined that abortion clinics engage in Interstate Commerce and so the route leading to the door of the abortion clinic was subject to federal regulation (Id).

The landmark case of Marsh v. Alabama, 66 S.Ct. 276 (1946) holds that even when any part of Interstate Commerce is owned by a private corporation, it is still open to the public. Thus there is no question that the counselor can stand along the Aware Woman sidewalk and, in a non-threatening, non-obstructive manner, offer written and verbal referral information to those going in or out of the abortion clinic.

Second, the correct legal standard for determining the liability of a Florida business for misuse of local police is the "procurement" test approved by District Judge Kovachevich in Gilbert v. Sears, Roebuck and Co., 899 F.Supp. 597 (M.D.

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Fla. 1995). This test treats the local police as "instrumentalities" rather than "fiduciaries". It is interesting to note, however, that Black's Law Dictionary, Sixth Edition, at page 801, defines "instrumentality" as "[s]omething by which an end is achieved; a means, medium, agency." (our emphasis). It is this limited agency that applies to the Melbourne City Police and their misuse by Aware Woman. The police could just as soon have been robots or land mines or guard dogs rented out by the City of Melbourne.

The Gilbert case (supra) is based on Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 701 (1944). The Florida Supreme Court reasoned that since the motivation for the business's misuse of the police was for personal profit rather than "vindicating public justice", the business itself should be liable for the damages it caused. The procurement test was stated as follows at page 701:

Rhetorically speaking, is there any difference between a robot, a bad dog, or the Melbourne City Police? Not if the desired end is "intimidation". All of these instrumentalities can threaten counselors seeking to provide F.A.C.E-protected services. False arrest is not an essential element of F.A.C.E violations nor is it

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alleged as such in the Complaint. R1-1-1 et seq.

Since threats which result in intimidation of a reproductive health service counselor violate F.A.C.E, 18 U.S.C. §248, then non-human devices can be employed to produce fear. And when their use is judged by the "procurement" test, it obviously does not matter whether the "instrumentality" is human or mechanical. The fault lies with the one who directs the instrumentality.

Mark Twain made a similar observation when describing an imaginary court:

What Mark Twain had to say about the culpability of machines for the harm that they do is apropos of the Melbourne City Police as they sat in their official cars

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at the Aware Woman abortion clinic, awaiting the arrival of pro-lifers in the Madsen buffer zone. Had Aware Woman rented land mines from the City of Melbourne and paid the city workers to place the land mines in obvious locations in the buffer zone on the mornings when abortions were to be performed and then come in the evening to remove them, the liability would be the same.

The land mines certainly would act as a threat to anyone seeking to enter the buffer zone; any pro-life counselor would be intimidated. And no one would hold the land mines responsible any more than the Machine was found guilty in Mark Twain's little court room scenario.

Is the hypothetical land mine an 'agent' of Aware Woman? Not in the usual sense of the word. A machine or even a guard dog can be directed and so are tools or instruments for achieving a particular result. The Melbourne City Police, while obviously human, were not expected to exercise any reason or discretion. It was their job to threaten all persons who might walk into the buffer zone - by themselves. These persons were obviously not Aware Woman customers. That is a trait that is shared by Meredith Raney, Matthew Carroll, Graham Dugas and Linda McKusick, McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996).

When these police officers were called 'agents' by the counselor, this was merely a polite synonym for 'instrumentality'.

The third shortcoming of the summary judgment deals with district court's

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determination that the record below had "no colorable evidence" to show that Aware Woman was responsible for misuse of the Melbourne City Police. R5-140-7.

After notice from the district court that it was considering a sua sponte motion for summary judgment on the issue of liability for the actions of the Melbourne City Police during the three instances in question, the counselor supplied additional affidavits and evidence. R5-128,129 130.

A review of the affidavits and other materials filed in this case show that the Melbourne City Police were instruments or limited agents of Aware Woman. The police came to the Aware Woman premises when told to come by. The police were stationed by Aware Woman at the abortion clinic for hours on end where they refrained from enforcing municipal ordinances and state statutes. R5-128, 128, 130. The police only enforced the private directions of Aware Woman. R5-128, 129, 130. They were paid by Aware Woman and when Aware Woman no longer wanted them around on a particular day, Aware Woman dismissed them. R5-128. The people that the police threatened and arrested were the non-customers of Aware Woman. R5-128, 129, 130. The police threatened and obstructed a pro-life F.A.C.E - protected counselor, the Plaintiff, on behalf of Aware Woman. R5-128.

This Court of Appeals restated the standard of review for summary judgment a few months ago in EPL, INC. v. USA FEDERAL CREDIT UNION, 173 F.3D 1356 (11th Cir. 1999), at page 1360:

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This court reviews a district court's grant of summary judgment de novo, with all facts and reasonable inferences therefrom reviewed in the light most favor-able to the nonmoving party...We apply the same standard as the district court... Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.P. 56(c). "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial."

Thus, the district court erred in granting summary judgment for Aware Woman because the facts and inferences in the record clearly show that the counselor is entitled to a trial on the issue of agency, if not a pre-trial ruling in his favor on this point.

SECOND ISSUE: YES. THE DISTRICT JUDGE DID ERR WHEN SHE DENIED TWO POST-JUDGMENT MOTIONS SEEKING TO CHANGE THE SUMMARY JUDGMENT HOLDING THAT THE MELBOURNE POLICE WERE NOT AGENTS OF THE ABORTION CLINIC, WHEN AWARE WOMAN FOR MONTHS AFTER THAT PERSISTED IN AN APPEAL SEEKING TO ESTABLISH JUST THE OPPOSITE, NAMELY THAT THE MELBOURNE POLICE WERE WORKING FOR THE ABORTION CLINIC.

The district court provided Aware Woman with a summary judgment in their favor on February 26, 1999. R5-140-7. The judge ruled at that time that judgment

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would not be entered until the appeal which Aware Woman had pending was concluded. R5-140-13. Certainly the proper thing for Aware Woman to do was to thank the trial court and dismiss the appeal.

Instead, Aware Woman continued the appeal, partly on the grounds that they had immunity from suit because the police, who were working for them had immunity from suit. "Derivative qualified immunity," Aware Woman called it. Appeal number 99-2064, Jurisdictional Memorandum of Appellants at page 13. If the summary judgment had been decided correctly, Aware Woman would have accepted the blessing immediately.

Yet it was five months after the summary judgment was signed that this Court of Appeals dismissed the Aware Woman appeal. R5-147. This refusal by Aware Woman to accept the summary judgment was a fact that could not be known to the counselor until after February 26, 1999. Thus, it was compelling evidence which was appropriately brought to the district court's attention by post-judgment motion. This Court of Appeals has approved such procedure in MAYS v. U.S. POSTAL SERVICE, 122 F.3d 43 (11th Cir. 1997), saying at page 46:

We join those circuits in holding that where a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.

Since this additional post-judgment evidence made it crystal clear that the

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Melbourne City Police were agents of Aware Woman, who in turn may have been acting in concert with the City of Melbourne, the summary judgment should have been set aside and the City of Melbourne joined in this case. Such a result is in accord with with Fed.R.Civ.P 19 and 21 which provide for addition of parties, such as the City of Melbourne, to a civil action where such joinder is needed for just adjudication.

This Court distinguished a Fed.R.Civ.P. R.59 motion which is reviewed for abuse of discretion from a Fed.R.Civ.P. 60(b)(2) motion for reconsideration in the Mays (supra) case. The counselor properly filed both types of motions, which were unopposed. And for the reasons stated under the argument on the First Issue, the district court can be seen to have abused its discretion by denying the Rule 59 motion.

CONCLUSION

The summary judgment entered in this case should be set aside and the case be allowed to proceed to trial, where determination of liability may be had for the violations of F.A.C.E. procured by Aware Woman's misuse of the Melbourne City Police.

Respectfully submitted,
Christopher F. Sapp
P. O. Box 1012
Lehigh Acres, Florida 33970

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(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

CERTIFICATE OF SERVICE: I HEREBY CERTIFY that two true and correct copies of the foregoing have been furnished by U.S. Mail (priority service), postage prepaid, sent this 30th day of November, 1999 to Roy Lucas, Esquire, Post Office Box 1433, Melbourne, Florida 32902 and the original and six copies were dispatched to the Clerk this date in the same manner.

Christopher F. Sapp
Attorney

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