Life bashes back - with FACE

Melbourne, FL - The City of Melbourne did not expect it. Neither did anyone else.
Anti-abortion activist, Meredith Raney, has filed a federal lawsuit demanding $200 million against the City of Melbourne for violating the Freedom of Access to Clinic Entrances (FACE) Act.
Until now, FACE has almost excluseively been used to silence anti-abortion activists and curb their activities, but when Raney, a sidewalk counselor, heard that a judge had ruled that anti-abortion sidewalk counselors and crisis pregnancy center (CPC) workers were also protected, he decided to take action.
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.
The lawsuit alleges that the City of Melbourne violated the 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.
Aware Women abortuary is one of the most litigious in the nation.
The importance of this injunction with respect to the suit in Raney 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 Raney nor the City of Melbourne are parties to that injunction. 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 Raney was seeking to provide reproductive health services protected by FACE.
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.

“Whoever by force or threat of force or by physical obstruction . . . intimidates or interferes with or attempts to . . . 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 . . . providing reproductive health services . . . shall be subject to the penalties provided . . .”

Reading the extracted version makes it easier to understand how an armed police officer guarding the buffer zone and intentionally attempting to intimidate Raney to keep him from providing reproductive health services in the form of counseling within the buffer zone is a violation of FACE.
Paragraph (c)(1)(A) of the Act states that FACE only applies “in a facility that provides reproductive health services.” However, “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 as in 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.
FACE also provides “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.
Raney’s counseling and referral services satisfies the above definition.

Why sue the City of Melbourne?

Some have asked Raney why he sued the city instead of Aware Women.
“I did sue Aware Woman and its owners,” said Raney. “I sued them for FACE violations where Melbourne police were simply used as agents of Aware Woman.”
However, 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.”
The court did not say that there were no FACE violations against 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,” Raney explained, “So I was forced to sue the City of Melbourne.

What the City of Melborne should be concerned about

Melborne has some real concerns in this suit.
The Charter of the City of Melbourne, Sec. 3.11 says, “The police department under a chief of police shall be responsible for the enforcement of federal and state laws and city ordinances.”
It does not say anything about the City enforcing private injunctions between private parties to which the City is not a party.
In 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 stated 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 anti-abortion 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.”

There is well-established law in the Middle District of Florida that covers this situation. Judge Kovachevich cited 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 Raney, the 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.