The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiffs, the People of New York, represented by their Attorney General, move for preliminary injunctive relief in a civil suit under the federal Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, the New York state analog, and the common law of nuisance. Plaintiffs claim that defendants' conduct outside the Margaret Sanger Center, a reproductive health facility in Manhattan, violates federal and state law. For the reasons more fully described below, the motion is granted in part.
The following constitutes this Court's findings of fact, based on an evaluation of all of the evidence, including witnesses' credibility, and conclusions of law. Where the defendants have given testimony that directly contradicts the facts as found by the Court, their testimony will often be described with the relevant event.
The Margaret Sanger Center ("Center") is located on the corner of Mott and Bleecker Streets in Manhattan. Although the Center's address is 26 Bleecker Street, the entrance door actually opens on the sidewalk on the east side of Mott Street, approximately thirty feet south of the intersection.
The Bleecker Street subway exit is approximately 200 feet from the entrance to the Center. The route to the Center from the subway takes one east on Bleecker Street on a sidewalk approximately fourteen feet wide, from the west corner of Mott Street to the east corner, and then right on Mott Street. The sidewalk on Mott Street outside the entrance of the Center is thirteen feet wide.
The parties agree that the area surrounding and leading up to the entrance to the Center is filled with verbal abuse, confrontation, physical threats, and at times, physical assaults. The parties differ on who is responsible for the aggressive behavior, but they describe a scene filled with tension, brimming with anger, and infused with the expectation of imminent danger. The frequency and intensity of confrontations has increased over time, becoming particularly volatile in 2005.
Defendant John Cain ("Cain") is sixty-nine years old. He is six feet tall and estimates his weight to be 204 pounds. He taught full time in grade schools in this City's public school system until December 2002. Since then he has been teaching on a substitute basis. He began demonstrating against abortion in 1970. Cain vowed to devote himself to the pro-life cause out of his religious convictions as a Roman Catholic. Cain explains that he is "particularly motivated" to demonstrate at the Center because he is married to a black woman. He believes that 80% of the women who come to the Center for abortions are black and that abortion is a crime of genocide against black people.
Defendant Luis Menchaca ("Menchaca") is sixty-three years old. He is five feet, seven inches tall and estimates his weight to be between 180 and 190 pounds. He has gray hair and a gray beard, both ungroomed and fairly long. He served in the United States Navy from 1962 to 1966. From 1966 to 1985, he worked as a deck seaman, in boat yards, and as a messenger. He is a Roman Catholic, and has been active in the pro-life movement since 1986. Reflecting these two facets of his life, Menchaca has taken on the nickname "Lifeboat," and is frequently referred to in this way by both Cain and the escorts who volunteer at the Center.
This is not the first time that Menchaca has been accused of violating the law in the course of his protest activities. In 2002, Menchaca was convicted in a New York state court of obstructing access to a reproductive health care facility in Buffalo after he entered the facility and lay down on the floor. He testified that he spent some time in jail as a result of the conviction, but did not specify how long. He is also the subject of two permanent injunctions issued by federal courts for past violations of FACE involving other clinics. The first resulted from Menchaca's participation in a series of blockades at a clinic in Englewood, New Jersey, during which Menchaca helped to block the entrance of a clinic by either lying down or locking himself with a bicycle lock to other protestors. See United States v. Gregg, 32 F. Supp. 2d 151, 153-54 (D.N.J. 1998), aff'd, 226 F.3d 253 (3d Cir. 2000). The second results from his obstruction of access to a medical facility in Dobbs Ferry, New York. See United States v. Menchaca, No. 96 Civ. 5305 (S.D.N.Y. Sept. 3, 1996). Menchaca recalled spending time in jail following his activities in Dobbs Ferry, but could not recall the judicial process that led to his incarceration. Evidence of these other violations of the law is admissible as evidence of Menchaca's intent and motive, and the absence of mistake or accident. Fed. R. Evid. 404(b). The strong probative value of the evidence is not substantially outweighed by any of the concerns identified in Rule 403, Fed. R. Evid.
While the two defendants undoubtedly share a passion for their anti-abortion cause, they are very different as individuals, and their differences were reflected in their demeanor as witnesses at the hearing. Menchaca is less educated, less sophisticated, and more volatile than Cain. He has trouble concentrating and absorbing information, as evidenced by his difficulty recalling and swearing to the truthfulness of Cain's affidavit, large sections of which he had explicitly incorporated into his own.*fn1 But when his attention is focused and he understands a question placed to him, his answers are likely to be honest. During his testimony, he conveyed his sincere desire to avoid another period of incarceration.
Cain, in contrast, is a much more deliberate and calculating individual. He was combative during questioning, and seemed as intent on making a point and advancing his cause as answering the questions truthfully. He was, as a result, much less credible as a witness.
C. General Activities at the Center
Protestors first began to appear at the Center in 2001. The two defendants began protesting there together in late 2003. Since that time, on Saturdays, and beginning in the late summer of 2004, on Thursdays, the defendants have been protesting regularly outside the Center. They arrive at approximately 7:00 a.m. While the defendants used to leave the Center by 11:00 a.m., they now stay until after noon.
The defendants work with another anti-abortion advocate, Paul Morrissey ("Morrissey"). Usually, Morrissey approaches women as they emerge from the subway station on Bleecker Street.
The defendants then take over from Morrissey as the women come closer to the Center. Occasionally, however, defendants walk down Bleecker to meet women exiting the subway and follow them back to the Center.
The defendants routinely post large posters by leaning the posters on
lampposts, cars parked on Bleecker Street, or occasionally on the
outside wall of the Center itself. They frequently place one of these
signs, which they refer to as the "Baby Malachi" sign, somewhere
around the southeast corner of Bleecker and Mott Streets.*fn2
Cain contends that "numerous" women who have seen the sign
become upset and turn around. Overall, he estimates that 10 to 25% of
pregnant women with whom the defendants interact outside the Center
decide not to go through with an abortion. On one occasion Cain
describes, soon after he began protesting at the Center, a woman
emerged from the Center, hugged him, and said she had changed her mind
because of his message. There was no independent evidence offered to
substantiate any of these claims.
Most women, it seems, are less thankful for the defendants' intervention in their lives. Because of the defendants' actions, patients often enter the Center teary and upset. Others are confused, disoriented, intimidated, or angry. This is in contrast to patients' demeanor on the days when the defendants are absent. A social worker at the Center observes that patients are more nervous and emotional on the days when the defendants are present than other days.
Approximately 25% of patients arrive by car. Most cars drive down Bleecker and let patients out on the southeast corner of Bleecker and Mott. Occasionally, the cars drop off patients on Mott, just outside the Center's entrance.
The majority of the Center's patients arrive by subway. Morrissey or one of the defendants meets women at the Bleecker Street subway station, and tries to give them pamphlets. After the patient crosses Mott Street, the defendants frequently flank the patient, or if she is walking quickly, follow closely behind her, accompanying her to the Center's door. They are often just inches away from her, so that if the patient stops moving before reaching the Center, the defendants run into her from behind. As they walk alongside or behind the patient, one of the defendants will talk to her, pleading with her not to have an abortion.
Once a woman whom the defendants have approached indicates that she is not interested in the defendants' message, they increase the volume of their voices and adopt a more intimidating tone. They move closer physically to the woman and become more aggressive in their interactions. Several witnesses demonstrated in court the relative positions of the defendants to patients when they approach closely to hand out literature. A defendant stands a few inches to the side and just in front of a patient, with his body angled towards hers somewhere between forty-five and ninety degrees. With their shoulders almost touching, he extends his arm out directly in front of her with the literature he wishes her to take. The defendant maintains this position until the patient reaches the clinic door.
Sometimes the defendants move to place themselves directly in front of patients as they walk towards the Center, forcing the women to choose between pushing through the men or backing up and trying to walk around them. Frequently, women who notice the defendants standing at the corner of Mott and Bleecker Streets attempt to escape the defendants by walking into the street and weaving between the parked cars on Mott Street instead of crossing in the crosswalk. One escort estimated that it takes approximately twice as long for women who have been approached by one of the defendants to reach the Center as it does for women who are not approached. Because the entrance of the Center is so close to the intersection, however, it takes only a matter of seconds for a patient to enter the Center if her path is unobstructed.
While the defendants used to stay some feet away from the entrance to the Center, more recently they follow patients right up to the doorway. On occasion, Menchaca stands directly in front of the Center's door, facing the door to prevent it from being opened. When asked to move, he ignores the request, and only moves after the security guard, who works inside the Center, leaves his post to address the situation or after the police are called.
Cain denies that either defendant blocks the door. He asserted that they generally stay fifteen feet away from door as women approach it, five feet away as they enter, and then two to three feet from the door after a woman enters. More credible evidence from the plaintiffs' witnesses and even videotapes offered by the defendants as exemplars of their habitual protest activity demonstrate to the contrary. In one videotape, Menchaca is seen following women to the door, at one point getting sufficiently close to the threshold of the Center that he can be seen through the clear glass of the open door from the security camera mounted on the external wall of the Center. In another videotape clip, Menchaca is at the edge of the open door, and Cain is visible immediately behind him, and leaning over him in order to project his voice into the Center.
As the door to the Center is opened, Cain often screams "Stop the murder in there," or "Murderers; they're killing babies," or "There's murder in there." Although the defendants have denied that Cain is shouting so loudly that his voice can be heard on the second floor of the Center and as high as the fourth floor in buildings across the street, Cain admits that he tries to elevate his voice whenever the door to the Center opens so that he will be heard inside the waiting room, and the credible evidence establishes that he is indeed shouting as loudly as he can with his deep, resonating voice.
The defendants routinely make overtly hostile comments to the escorts who guide patients to the Center door in a tone clearly intended to intimidate. Credible testimony from escorts reports the defendants making abortion-specific statements to the escorts such as "I'd like to stick a coat hanger in you" or "I hope what happens to those babies happens to you," as well as more general comments such as "Burn in hell" and "You'll be lucky if you're alive next week." Defendants also make derogatory comments regarding an escort's gender, sexual orientation, and perceived physical characteristics.
D. Findings Relating to Specific Occasions The findings of fact in this Opinion stem largely from
detailed descriptions of specific incidents by the witnesses who testified during the hearing. This evidence established that Menchaca, frequently motivated by a desire to protect the protestors' signs, has engaged in physical confrontations with escorts and assaulted them. Cain has had less physical contact with escorts, but he has repeatedly uttered threats that frightened escorts, leading some of them to give up working at the clinic because of concern over their safety. Both defendants have physically obstructed access to the Center. As time has progressed, both men have become bolder and more confrontational in conveying their message and in attempting to intimidate both patients and escorts. The following describes some of the more noteworthy incidents about which the witnesses testified at the hearing.
The earliest specific occasion about which there was testimony occurred around August 2003. A patient walking toward the Center was confronted by Cain and another man (possibly Morrissey) who regularly participates in protest activities at the Center. The two men cornered the petite woman against a wall as she approached the Center and began to yell at her. An escort helped to extricate the woman, who ran away from the Center in tears.
On January 22, 2004, Cain became upset when an escort got in his way while walking a patient to the Center door. After she let the patient in, he screamed at her "I will knock your teeth out if you get in our way again." The escort called the police to complain about the threat, and two officers came to speak with the defendants.
Cain denies that he ever said this. His denial is not credible. In his direct testimony, he explained that what he has said to escorts is that he would call the police if they got in his way again. During examination by the Court on this incident, he denied making any comment at all similar to what the escort described, but did claim to have called the police at some point in 2004 in response to being "boxed out" by an escort.
There was testimony about a few additional instances of confrontational conduct in early 2004. For instance, on February 28, Cain used his body to partially block the Center entrance, making it difficult for patients to enter and leave. An escort on duty that day noted that several patients, their friends and family members responded to the behavior of Cain and another protestor by making verbal threats.
In March 2004, one of the escorts drove her parents' car to the Center and parked her car directly outside it. After she left the car, Cain made a point of being seen inspecting the license plate of the escort's car. The escort became fearful that Cain might post the license plate on the internet and that her parents would be targeted by violent pro-life advocates.
Toward the end of 2004, the pace and intensity of the confrontations increased. In October or November 2004, Cain threatened an escort that he would "knock [her] in the head." Moving within inches of her, he said, "be careful, we're watching you; get in my way, you'll live to regret it." Cain told another escort during this time period, "I'd like to do to you what they do to babies", and "I'd like to stick a coat hanger in you."
On November 6, a yelling match erupted when a patient asked Cain to leave her alone. After the police had responded to the scene and left, Cain deliberately pushed into an escort as she was opening the door for a patient. Then he stepped back and walked away.
On December 4, Cain and Menchaca made comments to an escort about her coffee, to the effect, "How's that coffee. In a few hours you won't be feeling too well," and "I hope you have someone to take you to the hospital." The escort had left her coffee cup outside for a few minutes while she went into the Center, and worried that the defendants had actually put something into her drink. Cain contends that the escort simply misunderstood a story about coffee that he and Menchaca were discussing.
Cain and Menchaca were at the Center conducting their protests on December 18. Cain said to the escorts, "someone will set off a bomb here someday." One of the escorts related this event in an email to Center staff shortly thereafter, explaining that Cain had uttered the comment about the bomb "under his breath" but in a manner that appeared intended to be heard by the escorts.*fn3 That day, Cain also told the escort, "You'll be lucky if you're alive next week," a remark he has made more than once to escorts. When the escort and Cain bumped into each other, Cain said, "That'll be the last thing you do if you don't watch out."
In January 2005, an escort noticed one of the defendants' signs leaning up against the portion of the Center wall close to the corner of Mott and Bleecker Streets. Believing this placement to be illegal, the escort asked the defendants to move the sign. When the defendants refused, the escort approached the sign and picked it up, intending to move it herself to the lamppost on the corner. Seeing this, Menchaca rushed at the woman from behind, reached around her left side, and grabbed the sign out of her hands. Although Menchaca did not intend to come into contact with the escort, he came with such speed that he did not come to a full stop by the time he reached her, and the front of his body made contact with the back of hers as he lunged for his sign.
Menchaca acknowledges that this incident occurred, but denies that he made physical contact. According to Menchaca, he saw the escort reaching for his sign and went over to retrieve his property from her. He testified that he did not reach around the escort.
On March 12, an escort placed herself between the defendants and the patients so that the patients could reach the Center's entrance. Cain got close to her, pointed his finger in her face and screamed "stay out of my way. This is your last warning."
When a police car arrived and stayed for forty-five minutes to an hour, apparently responding to a neighbor's complaint about the noise the defendants were making, the defendants were quiet and did not come near the clinic entrance. After the police left, the defendants yelled at the escort, "may what happens in there happen to you," and "may you burn in hell." This was the kind of statement that several escorts reported that Cain said to them at different points in 2005.
Cain counters that what he said was "This is your last warning, you've been bumping into me, before I call the police. Please stop." He further testified that he in fact called the police that day. Neither assertion is credible. When asked at another point in his examination if he had ever called the police in response to something an escort had done, Cain said that he did, but identified the date as "some time in '04," and explained that it involved another escort.
That same day, an escort saw the defendants stand near car doors so patients could not leave their cars. One patient called the police from her cell phone outside the clinic to complain about how the defendants had blocked her progress to the Center. The police came for a second time that day and spoke to the patient and the defendants. After the police left, the defendants resumed blocking women who tried to exit their cars.
When another patient left the Center and tried to enter a waiting car, the defendants surrounded her to prevent her from doing so. The man driving the car got out of the car to extricate her and help her enter the car.
One week later, on March 19, Menchaca spoke to two men who were on the sidewalk across the street from the Center. Cain identifies the men as Mexican and states that he and Menchaca told the men about what goes on in the Center and why the defendants were protesting against it. Immediately afterwards, and for 2-3 minutes, the two strangers threw gravel and small rocks across the street at the escorts and the Center. Cain said, "you're lucky they're not hitting you in the head. You better watch out for next time." As Cain walked by an escort, he muttered that he was going to "bash your fucking head in." Although she did not hear any other words surrounding this phrase, the escort understood what she heard as a threatened assault by Cain.
On April 7, Menchaca blocked the door of the Center several times. When Center personnel asked him to stand back, he refused. He also approached one of the Center escorts and got as close as he possibly could to her without actually touching her. From that position, he told her to go ahead and call the police.
Just two days later, on April 9, Menchaca came up to an escort and, pressing his body into him, screamed at him "how can you do what you do?" and "we're not going to take this anymore." When the escort told Menchaca, "you need to move away," Menchaca screamed, "you need to move away," and pushed the escort. The escort became frightened of what Menchaca might do next, and he called the police from his cell phone. In the meantime, another protestor approached Menchaca and dragged him away. Both men were gone by the time the police arrived. The police were called to the Center again, on May 1, when Cain and one other protestor blocked a woman, impeding her progress toward the building.
Only one patient who receives medical care at the Center testified at the hearing. Her testimony was particularly graphic about Cain's efforts to prevent her from entering the Center. On June 11, Cain approached the patient in the crosswalk, walking with her until she turned toward the Center. He tried to hand her anti-abortion pamphlets. When she rejected the materials, he yelled at her in a loud voice, "think about the baby. You'll be killing the baby," and "abortion is murder, you have other options. We can help you find other options." Cain then stepped directly in front of her, dodging back and forth to prevent her from approaching the Center. While he did this, he was shouting at her, just inches from her face. She was extremely frightened by the aggressive, threatening behavior of this stranger, a man so large and close to her that he filled her field of vision. She stepped backwards, putting her hands in front of her to create some distance. Cain continued to yell at her. When she told him that she was not pregnant, he moved out of her way and said, "Oh, okay then. You can go in."
Several escorts have stopped working at the Center after incidents with the defendants made them too frightened for their own safety to continue their volunteer work. One such incident occurred on July 9, 2005. When the escort arrived at the Center at about 7:40 a.m., the defendants and another protestor were already there, walking close to patients as they approached and entered the Center, yelling at them along the way, and yelling into the Center when the door opened.
At 8:45 a.m., the escort was standing on Bleecker Street near its corner with Mott, about two to three feet in front of a light post against which a three-by-four foot anti-abortion sign was leaning. Menchaca tried to move the sign up higher on the post so that it would be more visible. A passerby approached Menchaca and told Menchaca not to bother the patients. During their exchange, Menchaca, who was standing to the left of the escort, hit her with a second poster that he was carrying under his arm. It was made of stiff, corrugated material. The escort responded, "hey, you hit me with your sign, don't hit me." The man also told Menchaca not to hit the escort with the sign. Menchaca's response was to back into the escort repeatedly with the sign, jabbing it into her. When she again asked Menchaca to stop hitting her, he shouted that she had to move, not him. He then purposely brushed up against her as he went to a parked car.
Another escort saw what was happening and called the police. The
police arrested Menchaca. He has been charged in state court with
harassment and disorderly conduct, and an order of protection has been
entered against him to forbid him from harassing, assaulting, or
engaging in any other illegal conduct toward the escort.*fn4
The escort is too afraid to return to act as an escort and
has not done so.
Cain asserts, improbably, that Menchaca was holding a poster and that the escort repeatedly leaned into it and proceeded to pretend that Menchaca was hitting her with it. Cain accused the escort of engaging in "play-acting" and melodrama, crying out "ouch" and "stop hitting me". In his examination by the Court about the incident, Menchaca was unclear on the events leading up to the encounter. He could not remember if it was he or the escort who was at the corner first, but he admitted that he might have seen her standing by the sign and approached her in order to protect his sign. He stated that he often gets close to escorts when he sees them near his signs. Menchaca denies hitting the escort, but admitted that he did not move at all when she told him to stop hitting her because he did not want to leave his property unattended. He agrees that a passerby intervened.
The last significant incidence of violence occurred on October 1, when Menchaca and a neighborhood resident were arguing over an anti-abortion sign. The man, who was carrying a child on his hip, refused to accept literature from the defendants. The man grabbed a sign from Morrissey, walked away and threw the sign to the ground. Menchaca then grabbed the man from behind and would not let him go until a passerby intervened to ...