The opinion of the court was delivered by: COOPER
Movants, Jacqueline Onassis (Mrs. Onassis) and Caroline B. Kennedy (Ms. Kennedy), seek an order holding respondent Ronald E. Galella (Galella) in contempt for violation of our order dated January 8, 1975.
Movants allege that on four (4) separate occasions Galella, by his conduct while photographing them, violated certain prohibitions of our order. For his part, Galella denies any wrong doing and maintains that he has not intentionally violated the distinct purpose of our order.
Qualitatively and quantitatively, we find the total proof adduced by movant forthright, persuasive, convincing-a measure of proof presented that more than meets the imperative test laid down by law. Accordingly, for reasons set forth below, the application is granted in all respects.
The order is sought pursuant to Local Rule 44
which states in part:
(b) If the alleged contemnor puts in issue his alleged misconduct or the damages thereby occasioned, he shall upon demand therefor, be entitled to have oral evidence taken thereon, either before the court or before a master appointed by the court.
(c) In the event the alleged contemnor is found to be in contempt of court, an order shall be made and entered (1) reciting or referring to the verdict or findings of fact upon which the adjudication is based; (2) setting forth the amount of damages to which the complainant is entitled; (3) fixing the fine, if any, imposed by the court, which fine shall include the damages found, and naming the person to whom such fine shall be payable; (4) stating any other conditions, the performance whereof will operate to purge the contempt; and (5) directing the arrest of the contemnor by the United States marshal and his confinement until the performance of the condition fixed in the order and the payment of the fine or until the contemnor be otherwise discharged pursuant to law.
The instant motion to hold Galella in contempt is but another step in the long, and often tortuous, history of this action. It was commenced in 1970; a proceeding lasting over a month was held in 1972; our decision was appealed to the Court of Appeals, Second Circuit; and in 1975 we entered a final order permanently enjoining certain practices indulged in by Galella.
Galella originally instituted this action in New York Supreme Court; it was removed to this Court on October 7, 1970.
Galella brought suit against Mrs. Onassis and three agents of the United States Secret Service (Walsh, Kalafatis and Connelly) seeking damages and injunctive relief for: (1) false arrest; (2) malicious prosecution; and (3) interference with his business of photography by the alleged acts of defendants.
The Secret Service agents protecting Mrs. Onassis' son theretofore had filed a criminal complaint against Galella who was detained and arrested but eventually acquitted.
While this acquittal may have ostensibly precipitated the filing of the complaint, we found to the contrary. As we saw it, Galella's motivation was two-fold: "(T)o induce by harassment the payment of money to him by the defendant ... and to obtain an advantage that his action would promote-publicity and its resultant financial rewards."
Mrs. Onassis' answer was filed on March 8, 1971 and included counterclaims seeking relief based on: (1) common law, statutory and the constitutional right of privacy; (2) intentional infliction of emotional distress; (3) assault; (4) harassment; and (5) malicious prosecution. Mrs. Onassis sought injunctive relief, compensatory and punitive damages aggregating $ 1.5 million. Reply papers were filed on March 25, 1971.
On July 2, 1971 the late Judge McLean of this Court granted the Government's motion for summary judgment and dismissed Galella's complaint against the three Secret Service agents, holding that the agents were well within the scope of their employment in performing the acts of which Galella complained and were therefore immune from suit.
The Government then moved to intervene in the instant action, seeking injunctive relief against Galella for his alleged interference with the protective duties exercised by the Secret Service towards the then minor children of the late President Kennedy and Mrs. Onassis. On July 6, 1971 Judge McLean granted that motion, and on October 20, 1971 the Government's complaint to intervene was filed.
On July 7, 1971 we denied the motions by Mrs. Onassis for summary judgment on the complaint and counterclaims.
Sitting in the motion part of this Court on October 8, 1971, we were presented with an order to show cause brought on by Mrs. Onassis seeking a temporary restraining order against Galella. On that day we signed the order in essence preventing Galella from harassing, alarming, blocking the path, or touching the person of Mrs. Onassis and her children.
The viability of that order was extended (by our order filed October 28, 1971) following a hearing, by consent of the parties and upon good cause shown.
On December 2, 1971 we were presented with another order to show cause by Mrs. Onassis, prepared by the firm of Paul, Weiss, Rifkind, Wharton & Garrison, substituted counsel for Mrs. Onassis.
This proposed order (coupled with another temporary restraining order) sought sanctions against Galella for his alleged surveillance of Mrs. Onassis and her two children and for contempt of our October 8, 1971 order. We signed the proposed order on December 2, 1971; directed Galella and his agents remain a distance of 100 yards from the Onassis residence in New York City and 50 yards from Mrs. Onassis and her children.
At the same time, we gave the parties an opportunity to change the distance requirements so ordered upon a proper showing. We noted in our earlier opinion:
"We gave the parties opportunity to resettle this order upon adducing proof on the distance requirement: "Now, make no mistake about this, that if that distance differs from the normal distance for taking a picture in the normal way, I am ready to change that order accordingly.... If that is excessive, I am ready to change it.' Minutes, January 19, 1972, pp. 31-32..."
No such proof was offered (not even mentioned) before or during the 1972 trial despite this clear opportunity to do so.
By our decision of July 5, 1972, permanently enjoining Galella, we directed the parties to settle, on three days notice, the proposed form of the injunction. Both Galella and Mrs. Onassis submitted proposed judgments which were identical in all material respects. Even though Galella again had the clear opportunity to argue that the distance requirements were too harsh or oppressive, he did not do so. The question of modifying the distance requirements of our order was raised for the first time on appeal.
Continuing chronologically: On January 19, 1972, Alexander Julien, Esq., Galella's trial counsel,
requested an off the record discussion in the robing room with counsel for Mrs. Onassis present.
During this discussion Julien stated that he intended to move for our recusal; that having been nominated by the late President Kennedy we could not render an unbiased judgment. We advised Julien that if he intended to bring on such a motion, he should do so promptly because a trial date would be set shortly. Mr. Julien stated that he would confer with his client, and if Galella decided to proceed, the appropriate and procedurally proper application would be made. Galella never made such an application.
We again hasten to add that despite the very simple procedure to properly move for recusal,
Mr. Julien instead opted for the particularly offensive procedure of denouncing us in open court.
He resorted to the same tactic in his brief on appeal from our order entered in 1972-all to no avail as came to light when our Circuit Court handed down its disposition of the appeal finding correct our refusal to grant the motion to recuse:
The court's refusal to recuse himself was correct. See United States ex rel. Brown v. Smith, 200 F. Supp. 885, 930 (D.Vt.1961), rev'd on other grounds, 306 F.2d 596 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1012, 10 L. Ed. 2d 11 (1963); United States v. Sclafani and Ross, 487 F.2d 245 at 255 (2d Cir. 1973). A judge may be disqualified for bias only on motion supported by a written affidavit of facts supporting the claim of bias and a certificate of good faith from the counsel of record. 28 U.S.C. § 144. Galella failed to comply with the statute; no showing was made of a legal basis for the claim, no motion was made nor affidavit filed. Informal requests to the court, or failure to comply with the statute because of an expectation of denial, however well founded, cannot be substituted for compliance with § 144.
He now again presses the same grounds for our recusal.
On January 25, 1972 we notified counsel that the trial would begin on February 14, 1972. We also suggested to them that the trial of the main action and the proceedings on the preliminary injunction be consolidated-Galella had indicated that he desired such a consolidation.
On that same day (January 25, 1972) counsel for Galella filed a jury demand for the upcoming trial. We then noted that despite the simple procedure therefor, the jury demand was over nine months late, and that we had no alternative but to strike it.
On February 2, 1972 we denied Galella's motion to remand the action for want of jurisdiction, stating that "already considerable expenditure of federal judicial time (has been spent) in an action which was properly removed...."
On February 3, 1972, pursuant to Fed.R.Civ.P. 65(a)(2), we ordered the consolidation of the main action with the proceedings for a preliminary injunction. At the request of Galella, we adjourned the hearing date to February 16, 1972.
The proceeding spanned one month, February 16 to March 23, 1972; the hearing record consisted of 4,714 pages of testimony from twenty-five (25) witnesses, and hundreds of exhibits.
Our decision issued on July 5, 1972. We dismissed Galella's complaint in all respects and granted injunctive relief to Mrs. Onassis and her children. Galella was enjoined from approaching within 100 yards of the home of Mrs. Onassis and her children; 100 yards from the children's school; and at all other places 50 yards from Mrs. Onassis and 75 yards from the children. Further, Galella was enjoined from surveilling Mrs. Onassis and her children and from communicating or attempting to communicate with them.
By this decision and our order entered on July 19, 1972 we held Galella in civil contempt, committed three (3) separate times, for: (1) "willfully and knowingly harassing defendant and her children in violation ... of our ... order dated October 8, 1971"; (2) "willfully and knowingly violating the provisions relating to surveillance and distances set out in our ... order of December 2, 1971"; and (3) "willfully and knowingly failing to produce photographic matter called for in the deposition subpoena."
We also ordered "that defendant Jacqueline Onassis shall recover from plaintiff Ronald E. Galella a fine for each of plaintiff's ... acts of civil contempt, the amount of said fine to include compensatory damages, including counsel fees, in an amount to be fixed by this Court at a later date."
Mrs. Onassis never pursued these monetary remedies. Apparently, she experienced difficulty in collecting on a judgment for daily transcript costs in 1972, and therefore had reason to believe that Galella was judgment-proof at that time. Further, her attorneys believed that the costs of any further proceedings would probably exceed any monies that, in reality, could be collected from Galella; and they found it impossible to fairly allocate attorney's fees for the hearing on the contempt motions and the trial of the main action since both were held contemporaneously.
Galella appealed our decision arguing that the First Amendment established an absolute immunity from any liability while he gathered news; that we were in error for: (1) refusing to remand the case; (2) refusing to allow a jury trial despite his untimely request; (3) excluding him from Mrs. Onassis' deposition; (4) refusing to recuse ourself; and (5) consolidating the trial on the merits with the temporary injunctive proceeding.
Our Circuit Court rejected all of Galella's challenges mentioned above. Referring to our determination that Galella's testimony at trial was utterly corrupt and that we discredited all his testimony, our Circuit Court reinforced emphatically its own estimate of Galella's credibility:
The court's findings on credibility are indeed broad, but they are supported in the record. Galella demonstrated a galling lack of respect for the truth and gave no indication of any consciousness of the meaning of the oath he had taken. Not only did he admit blatantly lying in his testimony, he admitted attempting to have other witnesses lie for him.
Bearing in mind this strong condemnation, it is quite evident to us that Galella was, and still is, indifferent to the circumstance that he was not held to account in criminal proceedings.
Galella also argued on that appeal that he was deprived of a fair and impartial trial because of our bias and hostility towards him and his counsel in sharp contrast to our attitude favorable to Mrs. Onassis and the Government.
Going to extraordinary lengths in his brief on appeal from our 1972 order, Mr. Julien saw fit to angrily denounce as an "extraordinary farewell address"
our expression of thanks to all counsel except Mr. Julien.
On appeal all of these allegations of bias were rejected. The Circuit Court cited two cases
which substantively teach that a judge need not recuse himself on the basis of what he learns while performing his judicial duties; only those things emanating from an extra-judicial source can form a basis for recusal. In spirit and to the letter, we meticulously adhered to the clear prohibition mandated by law. More on the "bias" issue later in this opinion.
Further, the Circuit Court held that Galella failed to submit the necessary affidavits supporting his claim of bias, and had therefore failed to comply with the statutory prerequisites.
Our Circuit Court of Appeals modified (by a 2 to 1 vote) the distance requirements which we had established, stating, "The injunction, however, is broader than is required to protect the defendant ... (the injunction) should not unnecessarily infringe on reasonable efforts to "cover' defendant."
Our order was modified (by our subsequent order of January 8, 1975) to prohibit:
(1) any approach within twenty-five (25) feet of defendant or any touching of the person of the defendant Jacqueline Onassis; (2) any blocking of her movement in public places and thoroughfares; (3) any act foreseeably or reasonably calculated to place the life and safety of defendant in jeopardy; and (4) any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.
As to the protection for the children of Mrs. Onassis, Galella was prohibited from:
(a) entering the children's schools or play areas; (b) engaging in action calculated or reasonably foreseen to place the children's safety or well being in jeopardy, or which would threaten or create physical injury; (c) taking any action which could reasonably be foreseen to harass, alarm, or frighten the children; and (d) from approaching within thirty (30) feet of the children.
Our Circuit Court upheld every disposition announced in our order of July 19, 1972 except as to the distances provided therein. It must be borne in mind that the order to show cause which brought on our order of July 19, 1972 requested certain distances be announced in that order. To that end, we adopted the suggested distances contained in the order to show cause. We consider it vital, however, to emphasize that before we signed our order of July 19, 1972, we afforded counsel an opportunity to suggest other distances:
"Now, make no mistake about this, that if that distance differs from the normal distance for taking a picture in the normal way, I am ready to change that order accordingly.... If that is excessive, I am ready to change it."
Our solicitude was to no avail, for no request was ever made.
As to distances: distance from Mrs. Onassis: our order fifty (50) yards; the majority of our Circuit Court twenty-five (25) feet; the concurring-dissenting opinion of Judge Timbers fifty (50) yards. The distance from her home: our order one hundred (100) yards; the majority of the Circuit Court: no restriction; Judge Timbers: 100 yards. Distance from the children: our order seventy-five (75) yards; the majority of our Circuit Court thirty (30) feet; Judge Timbers seventy-five (75) yards. Distance from their school: our order one hundred (100) yards; the majority of our Circuit Court: restricted from entry to school or play areas; Judge Timbers 100 yards.
After the Circuit Court's decision was rendered, Mrs. Onassis unsuccessfully petitioned that Court for a rehearing and a rehearing en banc.
On January 8, 1975, on remand from the Circuit Court, our judgment permanently enjoining Galella was entered. It is this order which, in the instant proceeding, Galella is charged with having violated. It reads:
ORDERED, ADJUDGED AND DECREED that:
1. The complaint herein be, and the same hereby is, dismissed on the merits as to all defendants;
2. The plaintiff's motions to dismiss the complaint of the Intervenor United States of America be, and the same hereby are, denied;
3. The plaintiff's motions to dismiss the counterclaim be, and the same hereby are, denied;
4. The plaintiff, Ronald E. Galella, his agents, servants, employees and all persons in active concert and participation with him be, and they hereby are, permanently enjoined and restrained from directly or indirectly:
(i) approaching within a distance of 25 feet of the person of defendant Jacqueline Onassis;
(ii) touching the person of defendant Jacqueline Onassis;
(iii) any blocking of the movement of the person of defendant Jacqueline Onassis in public places or thoroughfares;
(iv) performing any act foreseeably or reasonably calculated to place the life or safety of defendant Jacqueline Onassis in jeopardy;
(v) engaging in any conduct which would reasonably be foreseen to harass, alarm or frighten defendant Jacqueline Onassis;
(vi) entering a school or play area of Caroline B. Kennedy or John F. Kennedy, Jr.;
(vii) engaging in any action calculated or reasonably to be foreseen to place the safety or well-being of Caroline B. Kennedy or John F. Kennedy, Jr. in jeopardy, or which would frighten or create physical injury to either of them;
(viii) taking any action which could reasonably be foreseen to harass, alarm or frighten Caroline B. Kennedy or John F. Kennedy, Jr.;
(ix) approaching within 30 feet of the persons of Caroline B. Kennedy and John F. Kennedy, Jr., or either of them;
(x) taking any action, including those described in paragraphs (vi), (vii) and (viii) above, interfering with the protective duties of United States Secret Service agents with respect to John F. Kennedy, Jr.
5. Defendant Jacqueline Onassis and Intervenor United States of America recover from the plaintiff their costs and disbursements, as modified by the Court of Appeals.
Being that defendant Onassis "has no opposition" to the entry of this judgment (letter to the Court dated December 18, 1974), it is further
ORDERED that the Clerk is directed to make entry of this final judgment in accordance with Rule 58, Federal Rules of Civil Procedure.
It must be emphasized that no appeal from this order was taken.
On November 13, 1981 movants filed, pursuant to Rule 44 of the Civil Rules of this Court, the instant motion to hold Galella in contempt of our January 8, 1975 order. Mrs. Onassis recites three instances of Galella's contemptuous behavior; Ms. Kennedy presses one. By their current attorneys, Milbank, Tweed, Hadley & McCloy, Mrs. Onassis and Ms. Kennedy seek compensatory damages, coercive fines and imprisonment, Court initiated criminal contempt proceedings, and attorneys fees.
On December 11, 1981 Galella filed a "Notice of Cross-Motion for Recusal Pursuant to 28 U.S.C. § 144, § 455 and Rule 3 of the Civil Rules of this Court." As already noted hereinabove, the reasons set forth for our recusal offered nothing new. As part of Galella's appeal from our order of July 5, 1972, each of these precise issues were raised in overwhelming detail, considered by the Circuit Court, and rejected.
We again denied the motion for recusal.
On December 15, 1981, at the commencement of the contempt hearing and before any proof was received, we announced our decision regarding recusal and stated that Galella's allegations of personal bias alleged facts covered in the previous judicial proceedings, also our expression of opinion of those assertions-facts, which alone, can not form the basis of recusal.
"The instant applications by Mr. Galella which seek recusal are procedurally defective (
) and devoid of substance. The papers before us are barren of personal bias or prejudice. Why? Because none in fact exists. It goes without saying, to use the vernacular, we shall call them as we see them, as they come across the plate."
On December 11, 1981 Galella filed an affidavit in opposition to the contempt motion and also filed a cross motion for the appointment of a special master, in the event we denied the motion for recusal; leave to depose witnesses; and permission for Marvin M. Mitchelson, Esq., to appear as trial counsel.
In his affidavit Galella stated, "I hereby deny that any conduct alleged of me in the moving papers constituted any contempt in violation of this Court's judgment entered January 8, 1975 ... I have not acted any differently than other fellow photographers."
The affidavit recounted the alleged instances of contemptuous behavior and, in essence, constituted a general denial; it further stated that he had no intention of violating the spirit of our order.
Galella also asked that he "... be given the chance to testify, to adduce evidence on my own behalf, and to confront those who would seek to inflict penalty on me."
This was the first mention by Galella that he sought a hearing in the matter.
The hearing of the contempt motion commenced on December 15, 1981. Mr. Mitchelson was admitted pro hac vice as Galella's counsel for purposes of this hearing.
In support of a demand for a jury trial, Galella's counsel argued that pursuant to Rule 44(b) of the Local Rules of this Court, Galella was entitled to a jury trial; that in the event this was denied, we should empanel an advisory jury.
We were constrained again to deny these requests.
Likewise, Galella's earlier applications for appointment of a special master and leave to take depositions were denied.
Galella's actions between 1975-1981
The instant motion to hold Galella in contempt is our first involvement in this matter since our order of January 8, 1975-over six and a half years ago. As already pointed out hereinabove (p. 1077) no application was brought by Mrs. Onassis and/or her children during that time to hold Galella in contempt. In support of the instant application, the affidavit of Mrs. Onassis recites: "I am particularly fearful, because Galella, after some respite, is again engaging in the same kind of unlawful surveillance and threatening behavior ... which I understood was specifically prohibited by the January 8, 1975 order of this Court."
During that period of six and a half years, there had been considerable deportment by Galella which offended the prohibitions of our order of January 8, 1975. She testified on cross examination:
Q. Now, as a matter of fact, in the last six years Mr. Galella has photographed you on numerous occasions, hasn't he?
Q. Now, on any of those occasions in 1975, 1976, 1977, 1978, 1980 and through May of 1981, did you register to any law firm at all any place in the world, ask them to bring a contempt violation against Mr. Galella?
A. I registered to Mr. Alexander Forger of Milbank, Tweed on numerous occasions the fact that Galella was pursuing me and my children, that he ruined my son's graduation at Andover, that he ruined my daughter's graduation at Harvard, that he bribed his way into the Hyannisport private dock at Hyannisport, that he made it impossible for one to leave the-... That where I lived in Hyannisport, it is impossible to get to the water or to get to the dock without being visible to a photographer. Galella got someone in the town to give him a pass so he was on the pier. He would photograph you there. He made it so the only place that you could stay was inside a small, what is called the compound. If you wanted to get out in the evening to run on the golf course, the one minute of the day, he was up there once. All those times. The public-on public occasions he would often come very close to me and I said to him, "Watch out. You're coming too close to me. I'm going to take you to court.' He would laugh and jeer. Sometimes he'd knock people down. But all of those things I thought. All right, when I go out to a public place, there are going to be other photographers there, and I'm with someone I can hang onto, that's fine. I thought my son will only graduate from school once, my daughter from college once, so those things I could take. Hyannis began the happiest time of the year this summer, began to be gradually intolerable, and eventually I thought that it's almost not livable here any more with this surveillance. And each time of those times when I was very upset, I would convey my upsetness to (Milbank, Tweed).
I told (Milbank, Tweed) that Galella's pursuit of me over the earlier years-in not exactly these words, but this was the gist of it-had been sporadic, it wasn't the relentless pursuit it used to be, but now it looked like it was going to be unrelenting again.
Q. ... Mrs. Onassis, will you tell us now, how long of a respite was there? About five or six years...?
A. Galella photographed me intermittently in those years. There was never a total cessation of his photographing me.... Several times each winter at public functions Galella is always there. He practically always gets closer to me than 25 feet. The two graduations of my children.
Mrs. Onassis, again on cross-examination, offered a convincing reason as to why she had not initiated Court proceedings any earlier:
Q. ... Between 1975, after the relentless pursuit had died down, and let's say the beginning of this year, whatever Galella had done by way of photographing you, had not been so harassing to you that you saw fit to try to bring him into the courtroom for contempt, had it?
A. It had been harassing each time, but the ordeal of going to court was something I kept putting off because I thought I could take this, I could take that when I go out to the theatre or a child's graduation. But when it became relentless again, then I had no recourse but to go to court.
Mrs. Onassis dispelled any suggestion that she was motivated to initiate the instant proceedings for any reason other than Galella's own behavior:
Q. Mrs. Onassis, do you object to Mr. Galella photographing you under any circumstances?
A When he comes really close and bumps in and makes me-and makes other people back around and stare at me, yes, I do.
THE COURT: But if he doesn't get close to you, if he doesn't come within the prohibition of the order, do you object to his taking photographs of you?
THE WITNESS: No, your Honor.
The first incident complained of by Mrs. Onassis occurred on July 21, 1981 when she attended a mid-day performance of the film "Death in Venice" at the Hollywood Twin Theatre on Eighth Avenue near 47th Street in New York City.
The following constitutes the totality of the clear and convincing proof of this episode.
During that performance, the manager of the theatre "tipped off" the New York Post as to the presence of Mrs. Onassis in the theatre. Galella testified:
"I got a call that day from David McGough, and he said that ... he got a tip from the Post to cover this Hollywood Twin Theatre because Jackie-the manager called the Post and told them, tipped them. David McGough and myself are friends, and we do exchange information."
The incident began as Galella confronted Mrs. Onassis as she attempted to exit the theatre; the manager held her in the doorway (handing her a business card) so that Galella could take their pictures together. Mrs. Onassis testified:
"... (H)e tried to hold me in the doorway so Galella could take his picture of me.... I was confused. I wanted to get out of that place. I didn't like the man holding me in the door, giving me his card, while Galella could take a picture of it. I wanted to get out of there..."
Having managed to get past this initial encounter, Mrs. Onassis then proceeded out of the theatre onto the sidewalk. She testified as to what Galella did next.
"When I came out of the theatre, Galella was blocking my path.... He was several feet away.... He was taking pictures ... and leaping around with some other photographers... He blocked (
)-I couldn't get a-I wanted to get away from those people quickly and get a taxi, but he stood in front of me so I couldn't.... I said to (Galella), "Don't get that close to me. I'll take you to court.' He said, "Oh, you will take me into court, will you, Jackie?' "
Galella was also "... making those scary, grunting noises ..."-a "... very rapid low noise like an animal...."
At this point, Mrs. Onassis became quite alarmed and fearful:
"I was startled and frightened to see photographers when I emerged from the theatre, and confused.... I was harassed, surprised; it was unexpected. I had gone to the theatre just quietly during lunch hour, and came out and saw photographers leaping around. That was what Galella used to do in the old days. And here it was starting again.... I feel that when you're coming out of a dark theatre into the light and you are rushed by some photographers, one of them being Mr. Galella, yes, I object to that. It's unsettling."
Galella pursued Mrs. Onassis into the middle of Eighth Avenue where she attempted to hail a cab. She testified:
"I tried to hail a taxi, where I was then in the middle of Eighth Avenue, with traffic all around.... (Galella) was jumping all around me, in front and in back, and very close at times, so no taxi could see me. Everytime I raised my arm, he'd be in front of me."
Finally she succeeded in hailing a cab. However, the first cab she hailed apparently overheated.
Plaintiff's exhibit 14,
a photograph taken by David McGough which depicts this phase of the incident, clearly shows Galella within a very few feet of Mrs. Onassis. Mrs. Onassis estimated the distance to be two feet.
When confronted on direct examination with this convincing piece of evidence Galella testified as follows:
Q. You're clearly within 25 feet of her there, aren't you, sir?
Q. Within 25 feet, you're clearly within-
A. Oh, yes, I'm closer than 25 feet.
Q. How much away would you say you were?
A. Five or six feet. (emphasis ours)
On cross-examination, Galella testified:
Q Mr. Galella, I show you Defendant's Exhibit A, a photograph of you-
Q You testified on direct examination you were how close to her on that occasion?
Q And you were trying to get around, in front of her; is that correct?
Q Are you telling the Court, Mr. Galella, that that was the best of your ability, you couldn't stay 25 feet away from Mrs. Onassis on that occasion, that you had to get within five to six feet-
THE COURT: ... Come on, what's your answer, Mr. Galella?
A I can't carry a tape measure with me.
THE WITNESS: We are both moving. Mrs. Onassis us (sic) (is) a moving subject and I'm a moving person myself.
THE COURT: He asked you a question. Do you want to overrule the Judge, too?
THE COURT: Then stop. Just answer a simple question.
A Yes, I'm five or six feet away from her. To do my-
THE COURT: There it is....
Q Well, isn't it fair to say that if it's necessary for you to get within 25 feet of Mrs. Onassis, in order to do your job, you will thumb your nose at the order of the Court?
A No, I'm not thumbing my nose at the order of the Court.
Q But you're not complying with the order of the Court, are you?
Q I'm asking you whether you are violating an order of a United States District Court. Are you?...
A When I do my job, that is, taking pictures, I concentrate on my subject. And, yes, I sometimes break that order of 25 feet. (emphasis ours)
By this time Mrs. Onassis had become thoroughly upset and frightened by the totality of Galella's behavior:
"... I was frightened, confused; I was frightened on two accounts. One was being hit by a car coming from one direction or another; the other was a lot of rather weird people were coming out of the buildings along Eighth Avenue and 44th Street, and they were all pointing, yelling, "Oh, look, it's Jackie O. Hey, Jackie," and some of them were coming up to me. I was beginning to be rather sort of teased or followed by them. And so my reactions were confusion and fright and desperation."
This incident ended when Mrs. Onassis hailed a second cab and left the scene.
Galella argues that he was doing no more than his fellow photo-journalists by taking Mrs. Onassis' photograph; that he did not intend to violate this Court's order of January 8, 1975; and that movant has failed to sustain her burden of proof. For her part, movant maintains that the total proof on the theatre incident clearly and convincingly indicates that Galella violated several provisions of our order of January 8, 1975.
We are compelled to note in limine that the vast majority of respondent's factual arguments on this episode are barren by inference or otherwise-nothing more than trivial strawmen-unconvincing in their nature and insignificant in their impact on movant's overwhelmingly persuasive proof on this score.
Most assuredly, Galella is not, nor can he, consider himself just another photo-journalist when the photographic subject is Mrs. Onassis. His actions on that occasion are saturated with flagrant violations of our order.
Galella violated section 4(i) of our order throughout the totality of this incident: When Mrs. Onassis left the theatre, Galella was within twenty-five feet of her; when she made her way onto Eighth Avenue to hail a cab, Galella remained within twenty-five feet of her; and when she exited the first taxi cab she had hailed, Galella was again within twenty-five feet of her. Galella himself admitted that he came within five to six feet of Mrs. Onassis during this incident.
The same result obtains when we consider section 4(iii) of our order: Galella blocked the movement of Mrs. Onassis when she left the theatre; and again when she first made efforts to hail a cab on Eighth Avenue. It is no answer to say that Mrs. Onassis could have and in fact did choose another path on which to proceed. The assumption upon which that argument is based necessarily forces an adverse conclusion: Galella blocked the movement of Mrs. Onassis.
Finally, section 4(v) of our order has been violated: The proof is conclusive that Galella's conduct harassed, alarmed and frightened Mrs. Onassis. His aggressive pursuit of movant frightened, harassed and alarmed her. Galella was not content with taking pictures of Mrs. Onassis on the sidewalk; he pursued her onto the street itself where he continued to jump around her on this admittedly busy Manhattan thoroughfare. Understandably, Mrs. Onassis, as would anyone, became alarmed and frightened for her safety.
This is not a situation where a coincidental meeting occurred. Rather, Galella intentionally went to this theatre; his jumping and leaping, combined with his "making those scary grunting noises ... very rapid low noise like an animal," produced the only foreseeable conclusion. His arrogant persistency, compounded by each step he took, only added to the harassment, alarm and fear clearly instilled in his subject well before the incident was over.
As to Galella's argument that he did not intentionally violate our order, we remain positively convinced to the contrary. The solid proof adduced on this event is overwhelming-even beyond a reasonable doubt.
The next incident complained of by Mrs. Onassis occurred on September 6, 1981 at 2:20 P.M. while she and a friend were attempting to board her boat on Menemsha Pond located in Martha's Vineyard.
The following constitutes the clear and convincing evidence of that event.
This encounter with Galella, as with the Eighth Avenue incident, was the result of a premeditated plan by Galella designed to seek out Mrs. Onassis and/or her children as photographic subjects.
Galella recounted at the hearing how he came to be on Menemsha Pond that day:
"Well, that day we met with Paul Adao, and my wife, myself and Paul Ado (Adao) went to Falmouth where he arranged this fishing boat that we were going to go sailing toward Martha's Vineyard. When we got to Martha's Vineyard, we entered Menemsha Pond, looking for Mrs. Onassis or her children water skiing."
Paul Adao, one of Galella's fellow photo-journalists who was present during the entire incident testified:
"I had rented a 29-foot fishing boat to take pictures presumably of Caroline Kennedy, Mrs. Onassis or John Kennedy ...