RANEY V. CITY OF MELBOURNE

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V. CITY OF MELBOURNE

RANEY V. CITY OF MELBOURNE

LATEST NEWS

04/30/01 - U. S. SUPREME COURT DENIES CERTIORARI WITHOUT COMMENT

04/17/01 - Raney replies to Brief in Opposition

02/23/01 - Raney goes to U.S. Supreme Court
Petition for writ of certiorari placed on docket of U.S. Supreme Court as No. 00-1350.

11/15/00 - USCA DENIES RANEY'S APPEAL

SUMMARY OF THE CASE:

The Raney v. City of Melbourne civil lawsuit, 99-416-CIV-ORL-19B, was filed in Federal Court in the Middle District of Florida on April 7, 1999.

ALLEGATIONS

The lawsuit alleges that the City of Melbourne violated the Freedom of Access to Clinic Entrances (FACE) Law over 4,000 times in 2-year period when armed Melbourne Police Officers were guarding the 36-foot buffer zone part of the Aware Woman facility created by a private injunction obtained by the Aware Woman abortion clinic. Click here to read the injunction.

IMPORTANT FACTS

The importance of this injunction with respect to Raney v City of Melbourne is that it is a private injunction obtained by Aware Woman to effectively annex a 36-foot piece of public property into the Aware Woman facility. Aware Woman, utilizing the Melbourne Police, limited access to that 36 foot buffer zone as if were part of their facility.

Neither Mr. Raney nor the City of Melbourne are parties to that injunction, i.e. neither are enjoined or ordered by the judge to do anything regarding that injunction.

This 36-foot buffer zone is the part of Aware Woman's FACE facility where Mr. Raney was seeking to provide reproductive health services protected by FACE.

THE FACE LAW

The FACE law is only three pages long. Click here to read it.

The first paragraph is the most difficult to understand with respect to Raney v. City of Melbourne because the writer tried to cover so many eventualities in one paragraph. The words that apply to Raney v. City of Melbourne are underlined and then extracted into one sentence below.

Sec. 248. Freedom of access to clinic entrances
"(a) Prohibited Activities. - Whoever -
(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;
(2) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or
(3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship, shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor."

UNDERLINED WORDS EXTRACTED

(a) Prohibited Activities. - Whoever - by threat of force intentionally attempts to intimidate any person because that person is providing reproductive health services shall be subject to the civil remedies provided in subsection (c).

Reading the extracted version makes it easier to understand how an armed police officer guarding the buffer zone and intentionally attempting to intimidate Mr. Raney to keep him from providing reproductive health services in the buffer zone is a violation of FACE.

SERVICES MUST BE PROVIDED IN A FACILITY

Paragraph (c)(1)(A) states that FACE only applies "in a facility that provides reproductive health services." where facility is defined in papagraph (e)(1) as "The term "facility" includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located."

Recent case law has given a wide interpretation to the term "facility". See Greenhut v. Hand where plaintiff Greenhut was given FACE protection from threatening phone calls by defendant Hand while she (Greenhut) provided reproductive health services out of her own bedroom. See also arguments in PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS in the Raney v. Aware Woman case.

DEFINITION OF REPRODUCTIVE HEALTH SERVICES

"(e)(5) Reproductive health services. - The term "reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy."

Mr. Raney's counseling and referral services satisfies the above definition.

WHY RANEY V CITY OF MELBOURNE?

In 1997, Mr. Raney sued Aware Woman abortion clinic and its owners for FACE violations where Melbourne police were simply used as agents of Aware Woman. See Raney v. Aware Woman. However, in the Court awarded Summary Judgment to Aware Woman "[b]ecause the record does not reflect any colorable evidence that the Melbourne City Police were acting as agents of the Defendants." See 2/26/99 Order. The Court did not say that there were no FACE violations against Mr. Raney, it simply said that Aware Woman was not responsible. If Aware Woman was not responsible, then the Melbourne City Police are the only other possible responsible party. Thus Mr. Raney was forced to sue the City of Melbourne.

WHAT MELBOURNE SHOULD BE CONCERNED ABOUT.

The Charter of the City of Melbourne, Sec. 3.11. Police Department, says, "The police department under a chief of police shall be responsible for the enforcement of federal and state laws and city ordinances." Period. It does not say anything about the City enforcing private injunctions between private parties to which the City is not a party.

THE CITY MADE A "COGNIZABLE POLICY CHOICE," - 11th CIRCUIT COURT OF APPEALS.

In the federal lawsuit, McKusick vs. City of Melbourne, Linda McKusick sued as a result of being threatened with arrest for returning to the site of the loss of her child as a patient of Aware Woman to pray, grieve, and read her Bible on public property in front of the place where she lost her child.

The 11th Circuit Court of Appeals heard this case. The final Order states in part:

"As McKusick correctly points out, the injunction authorizes, but does not command, local law enforcement to arrest those persons who appear to be in violation of the injunction.

Reasonably construed, McKusick's complaint alleges that the City has developed an administrative construction of the injunction that causes it to arrest all antiabortion protestors found within the 36-foot buffer zone, not just parties named in the injunction or who are shown by probable cause to be acting in concert with those named parties. The City has as much as admitted placing such a construction on the injunction. At the district court hearing on the injunction, the City Attorney made the following statement about the City's enforcement procedure:

"We can only enforce the injunction by bringing before the court those persons who by their objective behavior, do certain things that we believe are violative of the injunction. The City of Melbourne cannot decide whether or not they intended to support them or whether or not they were members of Operation Rescue. These people do not wear badges saying, "I'm with Operation Rescue" when they're picketing and protesting out there."

Under the terms of the injunction itself, the City could elect not to arrest anyone at all. It could choose only to arrest those persons who, based upon prior experience, it knows to be acting in concert with named parties. It could, prior to making an arrest, question anyone found within the buffer zone or nearby in order to make a determination about whether the person is acting in concert with named parties to the injunction. McKusick's complaint alleges that the City has made a deliberate policy choice not to follow any of those alternatives. We agree with McKusick that the development and implementation of an administrative enforcement procedure, going beyond the terms of the injunction itself, leading to the arrest of all antiabortion protestors found within the buffer zone, including persons not named in the injunction nor shown by probable cause to be acting in concert with named parties, would amount to a cognizable policy choice." (Emphasis added.)

POSSIBLE DEFENSE FOR THE CITY.

There is well-established law in the Middle District of Florida that covers this situation. Judge Kovachevich cited the venerable Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944) in Gilbert v. Sears, Roebuck and Co., 899 F. Supp. 597 (MD. Fla. 1995) where she held that a business owner is liable for the activity of police, acting as its instruments. In the instant case, Plaintiff was illegally intimidated, his efforts to perform needed services were frustrated; just what Aware Woman intended. The above case law says that Aware Woman is responsible if the police were acting on Aware Woman's behalf in enforcing Aware Woman's private injunction.

"Have nothing to do with the fruitless deeds of darkness but rather expose them." Ephesians 5:11(NIV)