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NEW YORK v. FOREMAN

October 21, 1993

THE PEOPLE OF THE STATE OF NEW YORK, by ROBERT ABRAMS, Attorney General of the State of New York, Plaintiffs,
v.
JOSEPH FOREMAN, Defendant, and ROBERT SCHENCK, Respondent.



The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 Plaintiffs the People of the State of New York (the "State") have moved to hold defendants Joseph Foreman ("Foreman") and Patrick Mahoney ("Mahoney") and respondent Robert Schenck ("Schenck") in civil contempt for violating two provisions of the injunction (the "Preliminary Injunction") issued by this Court on July 13, 1992 in People v. Operation Rescue Nat'l, 1993 U.S. Dist. LEXIS 13982, 92 Civ. 4884 (RJW). Following an evidentiary hearing held on October 12 and 13, 1993 (the "civil contempt hearing"), the Court finds Foreman and Schenck ("the alleged contemnors") in civil contempt. *fn1"

 BACKGROUND

 This motion for civil contempt emerges out of the events surrounding the presentation of a fetus to then Governor Bill Clinton ("Governor Clinton") by Harley David Belew ("Belew") on the morning of July 14, 1992 in contravention of the Court's Preliminary Injunction banning such activity. The underlying facts and general procedural history of this action have been described in three previous opinions associated with the criminal contempt charges against defendant Randall Terry ("Terry"). *fn2" The Court assumes familiarity with those opinions, and now only briefly touches on some of the salient features of the Preliminary Injunction concerning the alleged contemnors.

 At the conclusion of a hearing held on July 13, 1992, this Court issued its Preliminary Injunction enjoining the defendants in the underlying civil action, including Foreman and Mahoney, and all others acting in their behalf or in concert with them, from, inter alia,

 
presenting or confronting either Governor Bill Clinton or Senator Albert Gore with any fetus or fetuses or fetal remains in the City of New York or elsewhere in the Southern District of New York between [12:45 P.M. on July 13, 1992] and 12:00 midnight on July 17, 1992 . . . .

 Preliminary Injunction, Second Decretal Paragraph, Clause (7) ("Clause (7)").

 In addition, the Fourth Decretal Paragraph of the Preliminary Injunction provided:

 
IT IS FURTHER ORDERED that defendant organizations and their officers and agents, and all individual defendants and those acting in concert with them, shall make good faith efforts to instruct all organizations and individuals they believe to be planning to participate in any of the activities enumerated in clauses (1) through (7) of the second decretal paragraph above not to engage in the proscribed activities . . . .

 Based on these provisions, the State asserts, inter alia, that the alleged contemnors violated the Preliminary Injunction insofar as they "aided, abetted, counseled, commanded, induced, procured or caused" Belew to present or confront Governor Clinton with a fetus.

 DISCUSSION

 A. Liability for Civil Contempt

 Courts have the inherent power to hold a party in civil contempt to enforce compliance with an order. Powell v. Ward, 643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 70 L. Ed. 2d 111, 102 S. Ct. 131 (1981). In assessing whether the alleged contemnors should be held liable in civil contempt for failing to comply with the Preliminary Injunction, the Court must consider three factors. First, was the order being enforced "clear and unambiguous." Second, was proof of noncompliance "clear and convincing." Third, were the defendants "reasonably diligent and energetic in attempting to accomplish what was ordered." E.E.O.C. v. Local 68 . . . Local 28 of the Sheet Metal Workers Ass'n Int'l, 753 F.2d 1172, 1178 (2d Cir. 1985); Powell v. Ward, 643 F.2d at 931. It is not necessary, however, to show that ...


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