ABORTION INDUSTRY IN MELBOURNE, FLORIDA
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PRINCIPAL BRIEF OF APPELLANT
Appeal No. 99-14122-I
In The UNITED STATES COURT OF APPEALS
MEREDITH T. RANEY, JR.,
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE,
APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
PRINCIPAL BRIEF OF APPELLANT,
MEREDITH T. RANEY, JR.
CHRISTOPHER F. SAPP
Post Office Box 1012
Lehigh Acres, Florida 33970
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.
Aware Woman Center for Choice, Inc., Defendant/Appellee in this case and Defendant in Roe, II v. Aware Woman Center For Choice, Inc.
Clinton, William J., President of the United States and adverse witness in Smith v. McDougall.
Coar, David H., U.S. District Judge presiding in N.O.W. v. Scheidler.
Deleware Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler.
Egherman, William P., M.D. Defendant in Roe, II v. Aware Woman Center for Choice, Inc.
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.
Florida League of Cities, Liability underwriter in Raney v. City of Melbourne.
Florida Sheriffs' Association, Liability underwriter in Smith v. McDougall.
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.
Melbourne, City of, Defendant in Raney v. City of Melbourne.
Murphy, Timothy, Defendant in N.O.W. v. Scheidler.
Nimmons, Ralph W., Jr., U.S. District Judge presiding in Smith v. McDougall.
National Organization of Women (N.O.W.), Plaintiff in N.O.W. v. Scheidler.
National Organization of Women (N.O.W.), Florida Chapter.
Pro-Life Action League, Inc., Defendant in N.O.W. v. Scheidler.
Raney, Meredith T., Jr., Plaintiff/Appellant in this case, Plaintiff in Raney v. City of Melbourne and Defendant in Allstate Insurance Company v. Raney.
Reno, Janet, Attorney General of the United States, probable Defendant in Smith v. McDougall.
Roe, Jane, II, Fictitious name of Plaintiff in Roe, II v. Aware Woman Center for Choice, Inc.
Sapp, Christopher F., Attorney for Plaintiff/Appellant in this case and for the Plaintiff in Roe, II v. Aware Woman Center for Choice, Inc.  and for Plaintiffs in Smith v. McDougall  and Defendant in Allstate Insurance Company v. Raney.
Scheidler, Joseph M., Defendant in N.O.W. v. Scheidler. 
Scholberg, Andrew, Defendant in N.O.W. v. Scheidler. 
Sienkiewicz, Ray, Plaintiff in Smith v. McDougall. 
Smith, Robert, Plaintiff in Smith v. McDougall. 
Summit Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler. 
Torpy, Vincent G., Attorney for Defendants.
Wilson, Charles R., Judge - United States Court of Appeals, Eleventh Circuit, probable Defendant in Smith v. McDougall. 
Windle, Edward W., Jr., Defendant/Appellee in this case and Defendant in Roe, II v. Aware Woman Center for Choice, Inc. 
Patricia B. Windle, Defendant/Appellee in this case and Defendant in Roe II v. Aware Woman Center for Choice, Inc.
NOTES OF RELATED CASES ON TRIAL LEVEL
 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.
 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.).
 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.
 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.
 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.
TABLE OF CONTENTS
(Omitted from Internet version)
TABLE OF CITATIONS
|MARSH v. ALABAMA, 66 S.Ct. 276 (1946)||25|
|MADSEN v. WOMEN'S HEALTH CENTER, INC.,
114 S.Ct. 2516 (1994)
|CHEFFER v. RENO, 55 F. 3d 1517 (11th Cir. 1995)||25|
|McKUSICK v. CITY OF MELBOURNE
96 F.3d 478 (11th Cir. 1996)
|MAYS v. U.S. POSTAL SERVICE,
122 F.3D 43 (11th Cir. 1997)
|EPL, INC., v. USA FEDERAL CREDIT UNION,
173 F.3D 1356 (11th Cir. 1999)
|GILBERT v. SEARS, ROEBUCK AND CO.,
899 F.Supp. 597 (M.D.Fla. 1995)
|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||-|
|BLACK'S LAW DICTIONARY, SIXTH EDITION,
"INSTRUMENTALITY" at page 801
|N. B. THE JURISDICTIONAL CITATIONS ARE OMITTED||4|
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.
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?
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
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.
"Which of these three, in your opinion, was neighbor to the robbers' victim?" He answered, "The one who treated him with mercy." Luke 10, 36 and 37.
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
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.
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
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 :
2. I am not a party to the injunction that was reviewed by the United States Supreme Court in the Madsen decision. At the times in question in my lawsuit I was serving as a reproductive health service provider, namely offering counseling and referral information to people at the Aware Woman/Hope Adoption facility here in Melbourne.
3. Also, I was not acting in concert with any party named in that injunction. I have checked the records and found that no party to the Madsen injunction was ever cited for contempt or charged in any way with violating that injunction. In July of 1993, I was present at the trials of well over a hundred people who were charged with violating the buffer zone. None of those on trial were parties named in the injunction. It is common knowledge that many people were in the buffer zone. Some were arrested, some were not. The ones arrested were the ones there without the approval of the Windles or their Aware Woman representatives.
4. I am not trying to reverse or change any law or court decision. Instead, I am relying on the plain language of the FACE law and on various related court decisions for protection while serving as a reproductive health service provider as defined in FACE.
5. On each of the three occasions when I was threatened and then removed physically from the public pedestrian right of way inside the boundaries of the Aware Woman facility I was aware that the Melbourne City Police were stationed there.
6. In casual conversation with some of the officers working for the City of Melbourne, these officers told me that at police headquarters, there was a special voluntary sign-up sheet for overtime abortion clinic duty. One of the officers, I think it was Officer Bearden, told me that he used the overtime money he made from abortion clinic duty to buy himself a personal computer.
7. Generally, Aware Woman performed abortions two days a week but I never knew ahead of time just which days or exactly what time of day they would start.
8. Over time, I noticed a pattern developing. When a police car parked at the west side of the facility on
Dixie Way it was certain that patients would soon be showing up and I prepared to begin offering my coun-seling and referral services to these patients. The police were in uniform, wearing their badges, carrying their guns and handcuffs. The presence of that marked police car parked on Dixie Way became my alert that patients would soon be coming and I would prepare to to begin offering counseling and referral information when they got there.
9. This program, orchestrated by the Windles, was in place during the entire time period, January, 1995 through January, 1996, covering the three FACE violations described in my lawsuit. During that time period, I knew of no one, including myself, who was charged at the clinic for any violation of any city, county, or state law. It was always the injunction that had been issued at the request of the Windles and Aware Woman. The charge was always "contempt of court." And everyone, myself included, who was re-moved from the facility was taken to jail.
10. Each of the three times that I was confronted by the Melbourne City Police, I explained that I was passing referral information and literature, that I was not violating the injunction. Each time, the police officer could plainly see that I was on the sidewalk and had literature and written information in my hand. They could see that I was peaceful and not breaking any laws. But they also knew that the Windles had not approved of my trying to provide this literature to the pregnant mothers. Without the Windles' prior approval there was no way that the police were going to let me offer counseling help and referral information to these women: it would be bad for their abortion business if any of these mothers had chosen life for her baby.
11. I don't harbor any bad feelings to the policemen who interfered with my FACE protected counseling and referral services. They were just instruments
of the Windles, doing what the Windles wanted done. The people who were hurt the most were the mothers and their little children. I would estimate that at least ten pregnant mothers got abortions on each of those days when I was prevented from offering them help and alternative solutions to their problems. That totals at least twenty victims (1 mother plus 1 child times 10) each day who needed my help and that of the people I could refer them to but didn't get it because I had been physically removed from the facility.
12. It was obvious to me that someone in charge of the Aware Woman clinic had to be communicating the abortion schedule to the Melbourne Police Department, telling them when to show up.
13. The time when the policemen could leave was a different story. Since the time to do abortions varied depending on a lot of things, the officers didn't know when Aware Woman would let them leave. On many occasions, I have observed a clinic worker come out after all of the patients had left and speak to the officer.
Then the officer knew that he had permission from the clinic to leave for the day. Sometimes, the patrol car was there as late as eleven p.m. before a clinic worker would finally come out and speak to the officer who would then leave.
14. I was never convicted on any of the three "contempt of court" charges filed while serving as a FACE protected counselor, the Circuit Court recognized that I was not in violation of the injunction.
15. I know that the Windles have answered one of the interrogatories saying that the Melbourne police were compensated with money for providing security. But, I don't think that money was the only reason that the Melbourne Police Department were tools of the Windles.
16. There were close ties between the local law en-
forcement community and the Windles. In their pleadings the Windles attached a letter (Doc. 47, Exhibit 2) from Michelle Jackson, Esquire, the assistant state attorney who was in charge of prosecuting Madsen contempt cases. In her letter she asks Mr. Windle if he wants some of these people punished more harshly. The tone of the letter is that of a servant reporting on the status of a task previously assigned by her master and then seeking advice from that master on what she should do next. Also, the former attorney for the defendants in this case, Vincent G. Torpy, Esquire of Melbourne is himself a former local policeman, whose brother is Major Wayne Torpy of the Melbourne City Police. Major Torpy was an officer with the Melbourne City Police at the time of the three incidents that are the subjects of this lawsuit. In other words, the Windles have good connections.
17. I don't know how many buttons the Windles had to push to get what they wanted from the police, but at least one of them worked. The Windles were able to annex the public property in the buffer zone to their private property as part of their complete facility - for all practical purposes. R5-129-1 et seq.
The neighbor living across the street from Aware Woman abortion clinic had observations very much like the counselor's:
1. My name is Graham C. Dugas, III. For four and one-half years I lived directly across the street (Dixie Way) from the Aware Woman abortion clinic.
2. More specifically, I lived at 1575 Dixie Way from June, 1993 to December, 1997.
3. There was a period of time when the Melbourne City Police gave every appearance of working for the abortion clinic operators, enforcing what was called
the McGregor injunction. They painted lines down the edge of the road in front of my house and put up a sign saying that an injunction was in effect regulating the use of the public property inside these lines.
4. Whenever the abortion clinic was doing abortions, the Melbourne City policemen would be stationed at the clinic. These "surgery" days followed no regular schedule. They were fairly random. The Windles who run the abortion clinic kept this scheduling knowledge under tight wraps in order to prevent pro-life counselors from having any chance to prepare in advance their efforts to offer women thinking about abortions any alternative health care solutions.
5. The police would arrive unannounced thirty to ninety minutes prior to the abortionist. They would stay until he left or until someone from Aware Woman came out and told them that it was okay to leave.
There were no "incidents" that the police were responding to. Rather, it was evident that the operators of Aware Woman had an established arrangement in order to have the police stationed at the clinic just at certain times corresponding to the clinic's randomly scheduled "surgery" times.
6. This arrangement that the clinic operators had with the police was in place during the times of Meredith Raney's arrests on January 28, 1995, April 26, 1995 and January 24, 1996.
7. The police kept everybody out of the buffer zone that didn't work for the abortion clinic. Only the abortion clinic people could work or do anything in the buffer zone. Anyone known to be pro-life, or who was just unknown to the clinic, who tried to go into the buffer zone was threatened, arrested and thrown into jail if they didn't leave immediately. If anyone just wanted to pass out literature on the sidewalk, they were arrested immediately without any effort to find out if
they were within the scope of the McGregor injunction or not. People were presumed to be in violation of the injunction without regard to their being within its scope.
8. Not only did I see the police who were stationed at the clinic intimidate people, they arrested me as well.
9. My mailbox was on the other side of the street, in the buffer zone. In July of 1994 when I walked over to my mailbox with a letter to send, I was arrested and taken away by the Melbourne City Police who charged me with violating the buffer zone injunction. It's true that I stepped into the buffer zone but I was only there to mail a letter as I regularly did. The police could see this plainly. I wasn't breaking any law.
10. The charges were later dropped.
11. I believe that the police in Melbourne don't normally arrest people for their beliefs but they surely did in the McGregor injunction buffer zone due to the apparent arrangement they had with the clinic owners. R5-130-1 et seq.
A second neighbor also recalls the time when the Melbourne City Police worked at Aware Woman:
1. My name is Matthew Carroll. I live in Melbourne, Brevard County, Florida, and have been a resident of this county for 30 years. From October 1991 until July 1998, I lived one block from the Aware Woman Abortion clinic and regularly witnessed the activities of the Melbourne City Police at that location.
2. I saw that the Melbourne City Police, starting in 1993 and continuing until 1996, were providing security to Aware Woman on a frequent basis. The security provided was regimented and apparently well planned, as opposed to random spot surveillance. There was an established program in place that was obviously
executed at the pleasure of the operators of Aware Woman.
3. On the days when the abortion clinic operators were having abortions performed at Aware Woman -this was generally two days a week - there would be at least one police car and at least one Melbourne City Policeman stationed at Aware Woman. The exact surgery days varied from week to week so it was obvious that the Windles or their people were telling the police when to show up.
4. Once the Melbourne City Police showed up on a surgery day, they would stay there the whole business day.
5. At other times, the Melbourne City Police might drive patrol cars through the neighborhood and even stop sometimes at Aware Woman and look around. However, when abortions were being done, the police-men were stationed continuously at the clinic.
6. Using the Windles' injunction as an excuse, the Melbourne City Police would keep everybody except the abortion clinic workers and their designees out of what they called the buffer zone. Clinic workers and persons who were approved by clinic workers were given complete license to be in the buffer zone. Persons who were not approved by Aware Woman were quickly confronted by police officers. Police officers would then threaten to arrest these persons and place under arrest those who did not immediately leave the buffer area.
7. I personally was arrested in July 1994 by a Melbourne City Police officer while I was walking on a public sidewalk in my own neighborhood. I was charged with violating the injunction because I had walked into the buffer zone without receiving approval of the clinic operatives. I was not charged with anything else.
8. I know Meredith T. Raney, Jr. I have heard he was arrested in 1995 and 1996 by the Melbourne City Police because he went into the buffer zone to give some advice or some information to the women there. I think that it is rather obvious that the Windles didn't want him or any other persons not approved by them giving information to the women there, and that is why the police that were stationed there according to the Windles' instructions arrested him.
9. I was grieved to see public property in my own neighborhood controlled by the Windles as part of their abortion clinic. I was also greatly troubled by the Windles using the police to harass and arrest people that wanted to privately pray on the sidewalk and pass out literature to women who needed advice. I believe that the women going to the Windles' clinic had the right to get information about alternatives to abortion and about all of the help that was available to them, and that the Windles never should have caused Meredith Raney to be arrested for trying to help these women. This was very wrong. R5-131-1 et seq.
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.
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.
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
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
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.
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
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.
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:
To be liable in an action for false imprisonment, one must have personally and actively participated therein, directly or by indirect procurement. All those who, by direct act or indirect act procurement, personally participate in or proximately cause the false imprisonment and unlawful detention are liable therefor.
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
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:
The Court: Prisoner, it is charged and proven that you are poorly contrived and badly constructed. What have you to say to this?
Answer: I did not contrive myself, I did not construct myself.
The Court: It is charged and proven that you have moved when you should not have moved; that you have turned out of your course when you should have gone straight; ....What have you to say to these things?
Answer: I am a machine. I am slave to the law of my make, I have to obey it, under all conditions. I do nothing, of myself. My forces are set in motion by outside influences, I never set them in motion myself.
The Court: You are discharged. Your plea is sufficient. You are a pretty poor thing, with some good qualities and some bad ones; but to attach personal merit to conduct emanating from the one set, and personal demerit to conduct emanating from the other set would be unfair and unjust. To a machine, that is - to a machine. Letters from the Earth, Mark Twain, pages 171 and 172.
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
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
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:
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
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
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.
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.
Christopher F. Sapp
P. O. Box 1012
Lehigh Acres, Florida 33970
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
|TOP OF PAGE| |HOME| |DISCLAIMER| |SEARCH| |LINKS| |NEWS|
|EMAIL US| |SUNTREE| |AWARE WOMAN| |ABORTIONISTS| |LAWSUITS|
|VICTIMS OF CHOICE| |SURVIVORS| |INVESTIGATIONS|