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PEOPLE EX REL. SPITZR v. OPRTN RESCUE NAT.

June 16, 1999

PEOPLE OF THE STATE OF NEW YORK, BY ELIOT SPITZER ATTORNEY GENERAL OF THE STATE OF NEW YORK, BUFFALO GYN WOMENSERVICES, INC., DR SHALOM PRESS, M.D.; PLANNED PARENTHOOD OF THE ROCHESTER/SYRACUSE REGION; DR. MORRIS WORTMAN, M.D.; PRO-CHOICE NETWORK OF WESTERN NEW YORK, PLAINTIFFS,
v.
OPERATION RESCUE NATIONAL; LAST CALL MINISTRIES; RESCUE ROCHESTER; LAMBS OF CHRIST; CHRISTIAN AMERICAN FAMILY LIFE ASSOCIATION, INC. (CAFLA); BOB BEHN; BONNIE BEHN; PHILIP "FLIP" BENHAM; MARY MELFI; NORMAN WESLIN; GERALD CRAWFORD; MICHAEL WARREN; RICHARD ARMENIA; MARY ARNO; PAUL ARNO; JOHN BLANCHARD; JOHN BARRON; ALBERT BOETTCHER; EVA BOLDT; MARTIN CHAMBERLAIN; KEN DELOZIER; AMY DORSCHEID; ROBERT DORSCHEID; DANIEL DRURY; DARREN DRZYMALA; ALAN FRICKE; AMY FRICKE; JAMES GOVOLA; MARY SUE GOVOLA; KENNETH HARMS; MICHAEL ILUZZI; KAREN JACKSON; ERIC JOHNS; BERNICE KLEINHAMMER; PAUL KOEHN; RICHARD KRULEWICZ; DANIEL LAMANTAIN-LEATHERMAN; ROSINA LOTEMPTO; EDMUND LUTZ; DENNIS MARRIOTT; DAVID MARTIN; ARNOLD MATHESON; MICHAEL MCBRIDE; WILLIAM MICHAEL; JAMES MISSALL; MICHAEL MOMBREA; DWIGHT MONAGAN; JACOB MUELLER; SHARON MURPHY; LINDA PALM; HETTIE PASCOE; ROBERT POKALSKI; MARY BETH POWLEY; DAN PRZYWUSKI; ROBERT RACO; JACQUELINE RADEMACHER; RENE RIDDLE; W. RANDOLPH SMITH; WILLIAM SMITH; SHERRIE STERLACE; ROSEANNE SUTTER; GERALD SUTTER; JOHN URGO; JOHN VANDEVEN; MICKEY VANDEVEN; NANCY WALKER; PHYLLIS WALKER; CALVIN ZASTROW; JOHN AND JANE DOES, THE LAST TWO NAMED BEING FICTITIOUS NAMES, THE REAL NAMES OF SUCH PERSONS BEING CURRENTLY UNKNOWN BUT WEST PAGE 409 WHO ARE ACTIVE IN DEFENDANT ORGANIZATIONS OR ACT IN CONCERT WITH THE ABOVE NAMED INDIVIDUALS TO ENGAGE IN, OR WHO WILL ENGAGE IN, THE CONDUCT COMPLAINED OF HEREIN, DEFENDANTS.



The opinion of the court was delivered by: Arcara, District Judge.

  DECISION AND ORDER

INTRODUCTION

After reviewing the submissions of the parties, the Court denies all pending defense motions.

BACKGROUND

A. Nature of the Action and Parties

Plaintiffs include the People of the State of New York, by Eliot Spitzer. Attorney General of the State of New York, several medical facilities and doctors that provide abortion-related services, and organizations that advocate abortion rights. Plaintiffs seek to enjoin defendants, who are individuals and organizations who allegedly plan, engage in or have engaged in protests outside facilities that provide abortion-related services in the Western District of New York, from protesting within the Western District in a manner that violates the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 ("FACE"), creates a public nuisance, or is otherwise unlawful.

In their initial submissions, plaintiffs described the recent history of anti-abortion protests in this District and provided evidence about the then-upcoming "Operation Save America" protests, which were scheduled to take place throughout the District from April 18 to April 25, 1999. In April 1999, the Court held a three-day hearing, and reviewed substantial evidentiary submissions, before issuing a temporary restraining order ("TRO") against all defendants on April 15, 1999. The Court has scheduled an evidentiary hearing on plaintiffs' application for a preliminary injunction to begin on July 28, 1999.

The New York State Attorney General obviously represents the citizens of the Western District of New York. Plaintiff doctors and abortion-related facilities are located in Buffalo, Rochester, Brighton and Amherst, all in this District. Additional abortion-related facilities located in this District include Planned Parenthood clinics in Batavia, Greece, Lockport, Niagara Falls, North Tonawanda, and West Seneca.

Defendants reside in numerous cities and towns in the Western District, and several reside outside of the District. Each of the defendants, according to the Complaint, has planned and or engaged in conduct that threatened to unlawfully impede, or has unlawfully impeded access to abortion-related services in this District.

The alleged activities of the various defendants are not geographically circumscribed, nor are they independent of one another. For example defendant Norman Weslin, who was previously convicted of FACE violations in Rochester, now lives in Buffalo. (Affidavit of Elizabeth Sholes, sworn to March 21, 1999 ("Sholes Aff.") at ¶ 16). Defendant Weslin and his organization, the Lambs of Christ, have engaged in blockades of abortion facilities in many locations, including Rochester. (Id. at ¶¶ 16-17). Defendants Gerald Crawford, Michael Warren and Mary Beth Powley, who live in the Rochester area, were arrested for blockading Buffalo-area abortion facilities during the 1992. "Spring of Life" protests. (Id. at ¶ 14). Defendant Mary Melfi, who lives in the Rochester area, has allegedly engaged in protests in Rochester and at one or more Planned Parenthood locations in the Western District. (Affidavit of Carol Love, sworn to March 20, 1999 ("Love Aff.") at ¶¶ 22-23, 25).

Before this action was begun, defendants ORN, a nationwide organization headquartered in Dallas, Texas, and Philip "Flip" Benham, a resident of Dallas, had announced "Operation Save America," a week of protests scheduled to take place throughout the Western District from April 18 to April 25, 1999. (See Sholes Aff. at Exhibits B & C; Affidavit of Robert Behn, Sworn to April 6, 1999 ("Behn Aff.") at Exhibit A). Defendant Benham, who is the National Director of ORN, (Affidavit of Philip Benham, sworn to April 3, 1999 ("Benham Aff.") at ¶ 3), has traveled to New York State repeatedly to participate in protests at abortion facilities, and in January 1999, protested at plaintiff Buffalo GYN Womenservices in anticipation of further protests in New York State. (Benham Aff. at ¶¶ 9, 16; Affidavit of Helen Dailey, sworn to March 21, 1999 ("Dailey Aff.") at ¶ 21). Benham is the author of the ORN newsletter (Benham Aff. at ¶ 6), and in January 1999, used the newsletter to invite other anti-abortion protesters to come to Buffalo and Rochester during Operation Save America. (Sholes Aff. at Exhibit B).

In March 1999, ORN's Internet site identified defendants Rev. Robert Behn and Bonnie Behn, who are Buffalo residents, as well as defendants Michael Warren and Gerald Crawford, who live in or near Rochester, as involved in planning Operation Save America. (Id. at Exhibit C). Defendant Warren, who lives in Spencerport. New York, and defendant Rescue Rochester used the Rescue Rochester newsletter to urge other anti-abortion protesters to participate in Operation Save America. (Love Aff. at Exhibit F). The published ...


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