Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2000

United States v. Gregg
Precedential or Non-Precedential:

Docket 99-5079, 99-5124, 99-5205




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Recommended Citation
"United States v. Gregg" (2000). 2000 Decisions. Paper 189.
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Filed September 7, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 99-5079, 99-5124, 99-5205

UNITED STATES OF AMERICA, Appellant in No. 99-5079

v.

JOSEPH R. GREGG; RUBY C. MCDANIEL; LUIS
MENCHACA; FRANCIS S. PAGNANELLI; WILLIAM
CHARLES RAISER; MICHAEL HENRY; ROSE KIDD;
ARNOLD MATHESON; KATHARINE O'KEEFE; EVA
ALVARADO; JOSEPH F. O'HARA; JOSEPH ROACH;
ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT;
ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY
BOISSONNEAULT; BALDO DINO; STEPHEN C. ELLIOT;
SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN;
GEORGE LYNCH; RAYMOND MICCO; ALEXIS
MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;
KIMIKO TROTT

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA;
FRANCIS S. PAGNANELLI; WILLIAM RAISER; MICHAEL A.
HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE
O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.
ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES
SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN
BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN
ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS
GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS
MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;
KIMIKO TROTT
Rose Kidd; James Sweatt; Elizabeth Wagi;
Raymond Micco; William Raiser; James Soderna;
Kevin Blake; Baldo Dino;
Appellants in No. 99-5124

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA;
FRANCIS PAGNANELLI; WILLIAM RAISER; MICHAEL A.
HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE
O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.
ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES
SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN
BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN
ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS
GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS
MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;
KIMIKO TROTT

Francis S. Pagnanelli, Appellant in No. 99-5205

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 97-cv-02020)
District Judge: Honorable John C. Lifland

Argued: April 25, 2000

Before: BECKER, Chief Judge, WEIS and
OAKES,* Circuit Judges.

(Filed: September 7, 2000)
_________________________________________________________________

* Honorable James L. Oakes, United States Circuit Judge for the Second
Circuit, sitting by designation.


                               2
FAITH S. HOCHBERG, ESQUIRE
United States Attorney
COLETTE R. BUCHANAN, ESQUIRE
Assistant United States Attorney
Federal Building, Suite 700
970 Broad Street
Newark, NJ 07102-23535

BILL LANN LEE, ESQUIRE
Acting Assistant Attorney General
DAVID K. FLYNN, ESQUIRE
JENNIFER LEVIN, ESQUIRE
 (ARGUED)
Department of Justice
Civil Rights Division
P.O. Box 66078
Washington, DC 20035-6078

Counsel for Appellants/
Cross-Appellees

EDWARD J. GILHOOLY, ESQUIRE
 (ARGUED)
14 Franklin Street
Morristown, NJ 07960

Counsel for Appellee/
Cross-Appellant Francis S. Pagnanelli

MICHAEL C. PELLETIER, ESQUIRE
335 Route 24, P.O. Box 700
Chester, NJ 07930

Counsel for Appellee Eva Alvarado

RUSSELL J. PASSAMANO, ESQUIRE
65 Madison Avenue
Morristown, NJ 07960

Counsel for Appellees/
Cross-Appellants William Raiser,
Rose Kidd, James Soderna,
James Sweatt, Elizabeth Wagi,
Baldo Dino, Raymond Micco

                          3
       DONALD DESMOND CAMPBELL,
        ESQUIRE
       186 Sherman Avenue
       Berkeley Heights, NJ 07922

       Counsel for Appellee Joseph O'Hara

       RALPH COTI, ESQUIRE
       Herriot, Coti & Sugrue
       36 West 44th Street, Suite 400
       New York, NY 10036

       Counsel for Appellee Joseph H.
       Roach

       WILLIAM C. CAGNEY, ESQUIRE
       Lane & Mittendorf
       99 Wood Avenue South
       Metro Corporate Campus I
       Iselin, NJ 08830

       Counsel for Appellee Byron Adams

       MICHAEL O. CUMMINGS, ESQUIRE
       Morgan, Finnegan, Pine, Foley & Lee
       345 Park Avenue
       New York, NY 10154

       Counsel for Appellee Kevin Blake

       PETER M. BURKE, ESQUIRE
       Cooper, Rose, & English
       480 Morris Avenue
       Summit, NJ 07901

       Counsel for Appellee George Lynch

OPINION OF THE COURT

OAKES, Circuit Judge.

In this case, the United States appeals the decision of the
District Court for the District of New Jersey (John C.
Lifland, Judge) that the defendants are jointly and severally
liable, rather than individually liable, for statutory damages
of $5,000 "per violation" of the Freedom of Access to Clinic

                                 4
Entrances Act ("FACE" or "the Act"), 8 U.S.C. S 248 (2000).
Several defendants filed cross appeals, arguing that FACE
is a violation of Congress's authority under the U.S.
Constitution's Commerce Clause and of the First
Amendment. We conclude that damages under FACE are
properly awarded jointly and severally among defendants
and that FACE is constitutional. Accordingly, we affirm the
district court.

BACKGROUND

On April 18, 1997, the United States, through the United
States Attorney General, filed a complaint for injunctive
relief and statutory damages against thirty defendants1
who, the Attorney General alleged, were an ongoing threat
to the Metropolitan Medical Associates ("MMA"), a
reproductive health clinic in Englewood, New Jersey, its
employees and persons seeking reproductive health services
at MMA. Specifically, the Attorney General alleged that each
defendant participated in one, two, or three protests that
obstructed access to MMA in violation of FACE. In the
prayer for relief in the Complaint, the Attorney General
elected to pursue statutory damages of $5,000 per
defendant in lieu of proving actual damages to MMA.

The district court held an evidentiary hearing on July 8-
10, 1997, on the Attorney General's motion for a
preliminary injunction. The evidence at the hearing
demonstrated that five of the named defendants blocked
access to MMA on August 7, 1996, twelve of the named
defendants blocked access to MMA on January 18, 1997,
_________________________________________________________________

1. The defendants named in the complaint are Joseph R. Gregg, Ruby C.
McDaniel, Luis Menchaca, Francis S. Pagnanelli, William Charles Raiser,
Michael Henry, Rose Kidd, Arnold Matheson, Katharine O'Keefe, Eva
Alvarado, Joseph Roach, Robert Rudnick, James Soderna, James
Sweatt, Elizabeth Wagi, Byron Adams, Kevin Blake, Amy Boissonneault,
Baldo Dino, Stephen C. Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis
Green, George Lynch, Raymond Micco, Alexis Mulrenan, Ralph
Traphagen, James Trott, and Kimiko Trott. The Attorney General
dismissed the charges against Mary Foley and her name has been
removed from the caption. They will be referred to in this opinion
collectively as "the defendants" unless it is necessary to provide names.

                               5
and nineteen of the named defendants blocked access to
MMA on March 15, 1997. Accordingly, on December 22,
1997, the district court enjoined defendants and their
employees, agents, and others acting in concert with them,
from blocking and impeding access to MMA, intimidating or
attempting to intimidate or interfere with persons seeking
access to MMA, and entering or being on MMA premises.

After the preliminary injunction was granted, the parties
informed the district court that they disagreed over the
proper interpretation of the civil remedies available under
FACE. At the district court's request, the parties submitted
briefs addressed to the proper interpretation of statutory
damages under FACE. On June 18, 1998, after considering
the parties' pleadings, the district court issued a
memorandum wherein, rejecting the Attorney General's
argument that statutory damages should be assessed on
each defendant per violation, it concluded that the $5,000
statutory damages were to be assessed per violation and
that all defendants who participated in each violation would
be held jointly and severally liable for $5,000.

On December 11, 1998, the district court granted the
Attorney General's motion for summary judgment and
issued a Memorandum and Order Entering Final
Judgment. See United States v. Gregg, 

(D.N.J. 1998). The district court found that the defendants
violated FACE when they conducted the three blockades.
See 

The district court determined that
Congress intended statutory damages of $5,000 to be
assessed per violation and against all responsible persons
severally. See 

Accordingly, the defendants
were held jointly and severally liable for $5,000 in statutory
damages for each violation in which they participated. See

(holding five defendants jointly and severally
liable for the August 7 blockade, twelve defendants jointly
and severally liable for the January 18 blockade, and
eighteen defendants jointly and severally liable for the
March 15 blockade).

The Attorney General timely appealed the district court's
decision and eight of the defendants2 cross appealed. The
_________________________________________________________________

2. Rose Kidd, James Sweatt, Elizabeth Wagi, Raymond Micco, William
Raiser, James Soderna, and Keven Blake filed a cross appeal on

                                6
Attorney General appeals that portion of the district court's
decision that imposed the statutory damages jointly and
severally. Defendants do not dispute the district court's
findings that they violated FACE. Rather, Defendants
contend that the Attorney General does not, under FACE,
have the authority to elect statutory damages in lieu of
proof of actual damages. In addition, they argue that FACE
is an unconstitutional exercise of Congress's commerce
power and that it violates defendants' rights guaranteed
under the First Amendment of the Constitution.

DISCUSSION

We review the district court's award of summary
judgment de novo. See Figueroa v. Blackburn, 

, 439 (3d Cir. 2000).

I.

The task of resolving how statutory penalties are to be
awarded under FACE is a question of statutory
interpretation which begins by discerning the plain
meaning of FACE's statutory penalty provision. If
Congress's intent as to this issue is plain, referral to other
canons of statutory construction is unnecessary. See
Resolution Trust Corp. v. Nernberg, 

, 64 (3d Cir.
1993); Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

, 842-43 (1984) ("If the intent of
Congress is clear, that is the end of the matter[.]").

To determine a law's plain meaning, we begin with the
language of the statute. See United States v. Ron Pair
Enterprises, Inc., 

, 241 (1989); New Rock Asset
Partners v. Preferred Entity Advancements, 

,
1498 (3d Cir. 1996); Santa Fe Medical Services, Inc. v. Segal
(In Re Segal), 

, 345 (3d Cir. 1995). If the
language of the statute expresses Congress's intent with
sufficient precision, the inquiry ends there and the statute
_________________________________________________________________

February 18, 1999. Francis S. Pagnanelli filed a separate cross appeal on
February 18, 1999. Their arguments were consolidated in one appellate
brief.

                               7
is enforced according to its terms. See Ron Pair Enterprises,

. Where the statutory language does
not express Congress's intent unequivocally, a court
traditionally refers to the legislative history and the
atmosphere in which the statute was enacted in an attempt
to determine the congressional purpose. See New 

. Once the plain meaning of the statute is
determined, it is conclusive "except in rare cases in which
the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters." 

v. Oceanic Contractors, Inc. , 

,
571 (1982)).

Section 248(a) of FACE, in relevant part, provides:

       (a) Prohibited Activities. -- Whoever --

       (1) by force or threat of force or by physical
       obstruction, intentionally injures, intimidates, or
       interferes with or attempts to injure, 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, obtaining or
       providing reproductive health services

       . . .

       shall be subject to the . . . civil remedies provided in
       subsection (c)

18 U.S.C. S 248(a)(2000). FACE further prohibits the
intentional damage or destruction of a facility because it
provides reproductive health services. See id . Any person
aggrieved by the foregoing actions may bring a civil action
for relief. See 18 U.S.C. S 248(a)(1)(A) (2000).

In any action under FACE, a person aggrieved by conduct
prohibited under the Act, may obtain "temporary,
preliminary or permanent injunctive relief and
compensatory and punitive damages." 18 U.S.C.
S 248(c)(1)(B) (2000). In addition, FACE allows a plaintiff in
a civil action to elect, "in lieu of actual damages, an award
of statutory damages in the amount of $5,000 per
violation." 18 U.S.C. S 248(c)(1)(B) (2000). The Act permits
the U.S. Attorney General and state attorneys general to
bring civil actions for the same relief if they believe that a

                               8
person or group of   persons has been aggrieved by violations
of the Act. See 18   U.S.C. SS 248(c)(2), (3) (2000); H.R. Rep.
No. 103-306, at 13   (1993), reprinted in 1994 U.S.C.C.A.N.
699, 710. In civil   actions brought by an attorney general,

       The court, to vindicate the public interest, may also
       assess a civil penalty against each respondent --

       (i) in an amount not exceeding $10,000 for a nonviolent
       physical obstruction and $15,000 for other first
       violations; and

       (ii) in an amount not exceeding $15,000 for a
       nonviolent physical obstruction and $25,000 for any
       other subsequent violation.

18 U.S.C. S 248(c)(2)(B) (2000).

The Attorney General argues that the district court
incorrectly awarded statutory damages per violation
presumably to be shared by the defendants involved with
each blockade and contends that FACE and its goals
require statutory damages to be awarded $5,000 per
defendant. We agree with the district court that the
"dichotomy of expression" between the civil remedy
provisions of FACE demonstrates Congress's intent that
statutory damages be imposed per violation and jointly and
severally among the defendants who participated in the
blockade. 

; see also Milwaukee
Women's Medical Services, Inc. v. Brock, 

, 1178 (E.D. Wis. 1998) (awarding statutory damages
per violation rather than per defendant); Greenhut v. Hand,

, 379 (D.N.J. 1998) (same); Planned
Parenthood of Southeastern Pennsylvania, Inc. v. Walton,

at *1-2 (E. D. Penn. Feb. 12, 1998) (same).

In authorizing compensatory statutory damages of
$5,000 in lieu of actual damages, Congress uses the phrase
"per violation." 18 U.S.C. S 248(c)(1)(B). This is in sharp
contrast to the language used in the provision permitting
courts to assess substantial civil penalties to vindicate the
public interest in cases brought by attorneys general. See
18 U.S.C. S 248(c)(2)(B). In S 248(c)(2)(B), an attorney
general can request civil penalties of up to $25,000"against
each respondent." 

ofS 248(c)(2)(B)

                                 9
illustrates that Congress knew how to explicitly instruct a
court to assess damages per defendant rather than per
violation. The absence of analogous "per respondent"
language in S 248(c)(1)(B) and the use instead of the phrase
"per violation" indicates that Congress carefully considered
the issue and decided that compensatory statutory
damages will be imposed per violation, a manner that
differs from the civil penalties imposed to vindicate the
public interest.

We disagree with the Attorney General that the use of
"whoever" in S 248(a) means that compensatory statutory
penalties are to be imposed individually. Section 248(a)
defines the substantive liability under FACE. It does not
address how, under the Act, civil compensatory damages
are to be awarded. The use of the singular in that provision
thus does not overcome the specific "per violation" language
in the relevant remedy provision of the Act. Thus, the
statutory language indicates that Congress intended that
compensatory statutory damages, like those imposed in this
case, are awarded per violation, presumably to be shared
jointly and severally among the defendants who
participated in the violation.

This interpretation is consistent with FACE's legislative
history and the atmosphere of anti-abortion violence in
which FACE was enacted. FACE was enacted in 1994
against a backdrop of escalating violence directed toward
reproductive health clinics, their employees, and patients.
Both the House and Senate Reports set forth detailed
accounts of the virulent national campaign waged by anti-
abortion activists. See H.R. Rep. No. 103-306, U.S.C.C.A.N.,
at 699. The evidence before Congress demonstrated that
"this campaign of violence has lead to death, injury,
harassment, fear, and thousands of arrests all across the
nation." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703.
Congress also set forth findings that state and local
authorities had proved inadequate, and sometimes
unwilling, to curb the violence. See S. Rep. No. 103-117, at
17-18 (1993); H.R. Rep. No. 103-306, at 6, 10,
U.S.C.C.A.N., at 703, 707 ("state and local enforcement
authorities have failed to address effectively the systematic
and nationwide assault that is being waged against health

                               10
care providers and patients."). Consequently, Congress
enacted FACE with substantial federal remedies to prevent
the "use of blockades, violence and other forceful or
threatening tactics against medical facilities and health
care personnel who provide abortion-related services. . . ."
S. Rep. No. 103-117, at 2. In sum, FACE serves two
important goals: First, federal remedies help compensate
individuals and health care facilities for the harm caused
by blockades and, second, they serve to deter protesters
from repeatedly violating the law.

The Attorney General argues that Congress intended
statutory damages to be assessed per individual so that
punishment would be imposed with the result of deterring
defendants from violating FACE in the future. We agree
with the Attorney General that deterrence is a primary goal
of substantial federal penalties against clinic blockaders.
This goal is well served by the availability of criminal
sanctions, punitive damages, and civil penalties. See 18
U.S.C. SS 248(b), (c). Congress explained, however, that the
statutory penalties described in S 248(c)(1)(B) are available
"in lieu of actual damages." According to the Senate Report,
they were included to ease the often difficult task of proving
actual loss in a case where anti-abortionists' tactics close a
clinic temporarily or interfere with a person's access to
reproductive health services. The senate report stated that
statutory damages were included "[b]ecause of the expense
and other difficulties of proving actual damages (for
example, a clinic's lost income)." S. Rep. No. 103-117 at 26.
Accordingly, the statutory penalties elected by the Attorney
General in this case were included with the goal of
compensating the victims of the misconduct prohibited by
FACE. As the district court noted "[o]ne person can just as
effectively injure, interfere with, or intimidate as can a
group, depending on the circumstances." Gregg , 32 F.
Supp.2d at 160. Damages to compensate thus have no
bearing on how many individuals caused the damage.
Because the legislative history of FACE indicates that the
purpose of the statutory damages is to compensate, it
follows that Congress intended that compensatory statutory
damages be awarded per violation regardless of how many
people participated in the misconduct.

                               11
Finally, the Attorney General argues that joint and
several liability among defendants encourages individuals
to engage in large, rather than small, blockades. With joint
and several liability, the Attorney General contends, the
total damages award "per violation" remains the same, yet
the more persons who violate the law, the smaller the
amount each defendant must pay, thus perversely tending
to encourage, rather than discourage, defendants to
organize blockades using greater, rather than smaller,
groups of people.

We are not convinced that awarding compensatory
statutory penalties per violation rather than per defendant
will cause defendants strategically to recruit more
defendants for each violation. Because of the wide variety of
remedies available under FACE, clinic blockaders will not
know the penalties that they face for their misconduct and
be able to plan accordingly. They will not know before the
suit is filed whether an Attorney General or private plaintiff
will opt for statutory damages in lieu of actual damages.
See 18 U.S.C. S 248(c)(1)(B). They will also not know if they
will be made subjects of a criminal prosecution and face
criminal fines. See 18 U.S.C. S 248(b). Furthermore, in the
case where an attorney general brings a civil action, he or
she has the option of requesting that the court assess a
civil penalty against each defendant in an amount as great
as $25,000 in an appropriate case. See 18 U.S.C.
S 248(c)(2)(B). Moreover, joint and several liability does not
solely contemplate a group of liable defendants sharing the
award among them. A liability is joint and several when
"the creditor may sue one or more of the parties to such
liability separately, or all of them together, at his [or her]
option." Black's Law Dictionary 751 (5th ed. 1979). It is
thus highly unlikely that a defendant or group of
defendants would plan a clinic blockade or other violation
of the Act in light of the penalty provisions under the Act.
Because of the varying ways penalties under the Act may
be assessed against a group of defendants involved in one
violation, we are not convinced that the deterrent value of
FACE is compromised by awarding the compensatory
statutory damages jointly and severally as the Act plainly
provides that they should be.

                               12
In sum, we conclude that Congress intended FACE's
compensatory statutory damages be awarded per violation
and jointly and severally among defendants. We base our
conclusion primarily on Congress's use of "per violation"
language in S 248(c)(1)(B) as opposed to the"per
respondent" phrase in S 248(c)(2)(B). Furthermore, because
Congress made statutory penalties available principally to
ease the plaintiff 's burden of proving actual damages and
other penalties to deter the misconduct prohibited by FACE
are available, the $5,000 statutory damages are awarded
per violation and jointly and severally among the
participating defendants.

II.

Defendants argue that the Attorney General may not
elect statutory damages in lieu of actual damages. Their
argument misapprehends the statute and is belied by the
Act's legislative history. Under FACE, the Attorney General
of the United States and a state attorney general may
commence a civil action against an individual or individuals
who engage in the conduct prohibited by the Act. See 18
U.S.C. S 248(c)(2). The Act provides that in an action
initiated by an attorney general, "the court may award
appropriate relief, including temporary, preliminary or
permanent injunctive relief, and compensatory damages to
persons aggrieved as described in paragraph (1)(B)." 8
U.S.C. S 248(c)(2)(B) (emphasis added). Defendants contend
that the phrase "compensatory damages" as used in
S 248(c)(2)(B) refers only to actual damages and not to
statutory damages. However, S 248(c)(1)(B) defines
compensatory damages as actual and statutory damages.
See 18 U.S.C. S 248(c)(1)(B). Thus, by using the term
"compensatory damages" in S 248(c)(2)(B), Congress plainly
meant to incorporate all of the text relevant to
compensatory damages as set out in S 248(c)(1)(B).
Therefore, the phrase "compensatory damages" as used in
S 248(c)(B) authorizes the attorney general to elect an award
of statutory damages.

Furthermore, the legislative history demonstrates that
Congress intended that statutory damages be awarded in a
civil action initiated by an attorney general. The House

                                13
confirmed that "[t]he Act authorizes the U.S. Attorney
General and State Attorneys General to bring civil causes of
action on behalf of aggrieved persons for the same relief
available in private actions; however, fees for attorney and
expert witnesses may not be awarded to the United States."
H.R. Rep. No. 103-106, at 3, U.S.C.C.A.N., at 700
(emphasis added). Because the relief available in private
actions includes statutory damages and Congress intended
that an attorney general be entitled to the same relief as a
private party, we reject the defendants' position that the
Attorney General may not elect statutory damages in this
case.

III.

A. Commerce Clause.

We now turn to the question whether FACE falls within
Congress's power under Article I, S 8 of the United States
Constitution. The Commerce Clause empowers Congress to
"regulate Commerce . . . among the several states." U.S.
Const., Art. I, S 8, cl. 3. Whether FACE is a proper exercise
of Congress's commerce power has been much discussed in
published opinions of United States Courts of Appeals.
Indeed, this is one of the last federal appellate tribunals to
address the issue. After considering most, if not all, of the
arguments presented by the defendants in this case, these
courts held that FACE is valid under the Commerce Clause.
See United States v. Hart, 

, 1074 (8th Cir.
2000); United States v. Weslin, 

, 296 (2d Cir.
1998), cert. denied, 

(1999); Hoffman v. Hunt,

, 582-88 (4th Cir. 1997), cert. denied, 

(1998); United States v. Bird, 

, 672-
82 (5th Cir. 1997), cert. denied, 

(1998); Terry
v. Reno, 

, 1415-18 (D.C. Cir. 1996), cert.
denied, 

(1997); United States v. Soderna, 

, 1373-74 (7th Cir.), cert. denied, 

(1996); United States v. Dinwiddie, 

, 919-21
(8th Cir.), cert. denied, 

(1996); United States
v. Wilson, 

, 679-88 (7th Cir. 1995), cert. denied,

(1996); Cheffer v. Reno, 

, 1519-
22 (11th Cir. 1995). Today, this Circuit aligns with the
decisions of its sister courts of appeals and holds that

                               14
FACE is a proper exercise of Congress's Commerce Clause
power.

In United States v. Lopez, 

, 558-59 (1995),
a decision aptly described by this Court as changing the
Commerce Clause landscape, see United States v. Parker,

, 29 (3d Cir. 1997), the Supreme Court
identified three broad categories of activity that Congress
may regulate under its commerce power. Congress may: 1)
"regulate the use of the channels of interstate commerce,"

(citations omitted); 2)"regulate and
protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce even though the
threat may come only from intrastate activity," 

and 3) "regulate those activities having a
substantial relation to interstate commerce . . . i.e., those
activities that substantially affect interstate commerce." 

(citations omitted).

Although the judicial branch is the final arbiter of the
constitutionality of a statute, courts review a congressional
determination that it had the power to enact a particular
piece of legislation with substantial deference. See 

; United States v. Bishop, 

, 576-
77 (3d Cir. 1995). It is not our job to "second-guess the
legislative judgment of Congress" that blockades and
violence directed at reproductive health clinics can be
regulated under the Commerce Clause power but, rather, to
ensure that Congress had a rational basis for that
conclusion. 

(quoting 

). We hold that under Lopez and this Circuit's
precedent, FACE is a proper exercise of Congress's power to
regulate intrastate conduct that, in the aggregate, has a
substantial effect on interstate commerce.3

In United States v. Morrison, ___ U.S. ___, 

, 1749-52 (2000), the Supreme Court's most recent
communique on Lopez's third category of regulation, the
Court provided a framework to determine whether a law
_________________________________________________________________

3. Because we determine that FACE is a proper regulation of intrastate
activity that has a substantial effect on interstate commerce, we do not
reach the Attorney General's argument that FACE is also a proper
regulation of instrumentalities in commerce.

                               15
regulates an activity that has a substantial effect on
interstate commerce. The Court identified four relevant
considerations. These are: 1) the economic nature of the
regulated activity, see 

2) a jurisdictional
element limiting the reach of the law to a discrete set of
activities that additionally has an explicit connection with
or effect on interstate commerce, see 

3)
express congressional findings regarding the effects upon
interstate commerce of the activity in question, see 

and 4) the link between the regulated activity and
interstate commerce, see 

Morrison first asks a court to consider whether the
federal law regulates intrastate economic or commercial
activity. See 

In Morrison , the Supreme Court
noted, "In every case where we have sustained federal
regulation under Wickard's aggregation principle, the
regulated activity was of an apparent commercial
character." 

Morrison, the Supreme Court
invalidated the civil remedy provision of the Violence
Against Women Act ("VAWA"), in part, because gender-
motivated crimes "are not in any sense of the phrase,
economic activity." 

In contrast to gender-
motivated crime, the activity regulated by FACE-- the
physical obstruction and destruction of reproductive health
clinics and the intentional interference and intimidation of
persons obtaining and providing reproductive health
services -- is activity with an effect that is economic in
nature. Reproductive health clinics are income-generating
businesses that employ physicians and other staff to
provide services and goods to their patients. Motivated by
anti-abortion sentiment, the primary goal of individuals and
groups engaged in the misconduct prohibited by FACE is to
temporarily and permanently interrupt the operations of
reproductive health facilities and prevent individuals from
accessing their services. See S. Rep. No. 103-117, at 11;
H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706.
Congress found that the violent and obstructive acts
directed at reproductive health facilities had caused
millions of dollars of damage and forced clinics to close,
caused serious and harmful delays in the provision of
medical services and intimidated a number of physicians
from offering abortion services. See S. Rep. No. 103-117, at

                               16
14; H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., at 704. The
effect of the conduct proscribed by FACE is to deter, and in
some cases to stop completely, the commercial activity of
providing reproductive health services. We thus hold that
although the connection to economic or commercial activity
plays a central role in whether a law is valid under the
Commerce Clause, we hold that economic activity can be
understood in broad terms. Pursuant to this principle,
unlike the activity prohibited by VAWA, the misconduct
regulated by FACE, although not motivated by commercial
concerns, has an effect which is, at its essence, economic.
See 

(threats of violence that have
the effect of deterring commercial activity is properly
regulated under commerce clause); 

(activity regulated by FACE, while not itself economic
or commercial, "is closely and directly connected with an
economic activity . . . therefore . . . we cannot conclude that
FACE has nothing to do with commerce or any sort of
economic enterprise"); 

("FACE
prohibits interference with a commercial activity-- the
provision and receipt of reproductive health services.");

("the Access Act does regulate
commercial activity, the provision of reproductive health
services.").

Morrison next instructs a court to consider the existence
of a jurisdictional 

."A
jurisdictional element . . . refers to a provision in a federal
statute that requires the government to establish specific
facts justifying the exercise of federal jurisdiction in
connection with any individual application of the statute."
United States v. Rodia, 

, 471 (3d Cir. 1999),
cert. denied, ___ U.S. ___, 

(2000). FACE
does not contain an explicit jurisdictional element
establishing that the federal cause of action is in pursuance
of Congress's power to regulate interstate commerce.
Although such an element would certainly lend support to
the conclusion that FACE is tied to interstate commerce, we
conclude that it was not necessary for Congress explicitly to
limit the civil remedy provision in the case of regulating
anti-abortion activity directed at reproductive health clinics
that are, by definition, directly engaged in the business of
providing reproductive health services. See Bird , 

at 675 (reasoning that a jurisdictional element is"not
always a necessary" method to ensure that Congress does
not exceed its commerce power).

Morrison also directs that the existence of congressional
findings on the burden of the regulated activity on
interstate commerce "may enable [a court] to evaluate the
legislative judgment that the activity in question
substantially affects interstate commerce." Morrison, 120 S.
Ct. at 1752 (quoting 

). Congress's
conclusion that the activity proscribed by FACE burdens
interstate commerce is a conclusion derived from months of
legislative hearings, research, and debate. The Senate
Judiciary Committee and the House Committee on Labor
and Human Resources which considered the legislation
before it became law submitted extensive reports on the
necessity of FACE. See 

. Thus,
Congress's conclusion that FACE is constitutional is
entitled to judicial deference. See 

.

Finally, in accordance with the fourth factor of Morrison,
the findings set forth in the House and Senate Committee
Reports demonstrate that Congress had a rational basis
upon which to conclude that the activities governed by
FACE have a substantial effect on interstate commerce. As
set out in detail below, the findings show that a national
market for abortion-related services exists in this country
and that reproductive health clinics are directly engaged in
interstate commerce. The findings further demonstrate that
a national movement engaged in the activities proscribed by
FACE has decreased the availability of abortion-related
services in the national market and caused women seeking
services and physicians providing services to travel
interstate. Accordingly, the activity proscribed by FACE has
a substantial effect on the interstate commerce of
reproductive health services.

The legislative record establishes that a shortage of
abortion-related services exists in this country that is
exacerbated by the misconduct proscribed by FACE. See S.
Rep. No. 103-117, at 17. Only 17 percent of counties in the
United States have an abortion provider. See H.R. Rep. No.
103-306, at 8, U.S.C.C.A.N., at 705. This leaves 83 percent
of counties without a physician willing to perform

                               18
abortions. See S. Rep. No. 103-117, at 17 & n.29. The
shortage is most severe in rural counties because
reproductive health clinics are located primarily in
metropolitan areas, leaving women residing in rural areas
without a provider of these services. See H.R. Rep. No. 103-
306, at 8, U.S.C.C.A.N., at 705. In a rural community, only
one provider usually exists in a large geographical area,
thus making it a preferred target for anti-abortionists
because elimination of that provider eliminates abortion
services for all women in that area. See H.R. Rep. No. 103-
306, at 8, U.S.C.C.A.N., at 705.

The shortage of abortion-related services has resulted in
a national market for these services because many of the
patients must engage in interstate commerce by traveling
from one state to obtain reproductive health services in
another. Testimony and evidence before Congress showed
that substantial numbers of women travel interstate to seek
the services of reproductive health clinics. See S. Rep. No.
103-117, at 31; H.R. Rep. No. 103-603, at 6, U.S.C.C.A.N.,
at 703. Many patients travel over 100 miles to their
appointments. See S. Rep. No. 103-117, at 17 & n.29. For
one example, Ms. Sylvia Doe, who testified before Congress
that after learning her baby suffered from a permanent
disability that would cause its early death, traveled from
Virginia to a clinic in Kansas capable of performing the
procedure she required. See H.R. Rep. No. 103-306, at 7-8,
U.S.C.C.A.N, at 704-5. Furthermore, the Senate found that
44 percent of the patients treated at a clinic in Wichita, KS,
are from out of state. See S. Rep. No. 103-117, at 31.
Congress's determination that reproductive health services
are an interstate market was well supported by the
testimony presented to the committees. See Bird , 124 F.3d
at 668-79 (setting forth a summary of testimony).

In addition, reproductive health clinics employ a national
market of physicians and staff. Because of the shortage of
physicians willing to perform abortions in the age of clinic
violence, doctors employed at reproductive health clinics
often travel across state lines to provide abortion services.
See S. Rep. No. 103-117, at 31 & n.46. "Some doctors
traveled to several states, some for hundreds of miles, to
perform abortions at clinics which had no physicians of

                               19
their own." 

in South Dakota the only
physician who performs abortions commutes from
Minnesota and provides abortion services in Minnesota,
Montana, North Dakota, and parts of Canada. See 

& n. 29, 31.

The Senate Committee also concluded that reproductive
health clinics engage in interstate commerce. The
Committee reported that

       Clinics and other abortion service providers clearly are
       involved in interstate commerce, both directly and
       indirectly. They purchase medicine, medical supplies,
       surgical instruments and other necessary medical
       products, often from other States; they employ staff;
       they own and lease office space; they generate income.
       In short, the Committee finds that they operate within
       the stream of interstate commerce.

S. Rep. No. 103-117, at 31. Thus, Congress found that a
national market existed for reproductive health services
because of the shortage of physicians who provide abortion-
related services, that reproductive health clinics often
employ physicians from outside the state in which they are
located, and reproductive health clinics themselves are
engaged in interstate commerce.

Finally, Congress determined that the conduct prohibited
by FACE inhibits and prohibits the delivery of reproductive
health care services in the national market. Based on the
testimony and evidence before it, Congress found that the
clinic blockades, the threats against employees, and the
other violent and obstructive activities prohibited by FACE
have the single goal of eliminating the practice of abortion
by closing abortion clinics. See S. Rep. No. 103-117, at 11;
H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703.
Congress also, based on the evidence before it, rationally
determined that the national movement was succeeding.
The House Report stated that the "campaign of violence has
led to death, injury, harassment, fear, and thousands of
arrests all across the nation. It has resulted, as intended,
in access to the constitutionally protected right to choose
being denied to thousands of women nationwide against
their will." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at

                               20
703. The Senate Report states that clinic blockades and
violent protests proscribed by the Act have "a significant
adverse impact not only on abortion patients and providers,
but also on the delivery of a wide range of health care
services." S. Rep. No. 103-117, at 14. The effect of the
violence forced "clinics to close, caused serious and harmful
delays in the provision of medical services, and increased
health risks to patients." 

FACE was enacted, millions of dollars
of damage had been caused to these facilities by the clinic
blockades. See H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N.,
at 704. The damage caused to reproductive health care
facilities eliminates on a temporary or permanent basis the
reproductive health care services that are provided by the
facilities. See 

U.S.C.C.A.N., at 706. Thus, the
activities proscribed by FACE inhibit the operation of
entities that are directly engaged in interstate commerce.

Congress explicitly noted the link between the abortion-
related violence and the shortage of physicians willing to
perform abortions. A number of physicians and health care
personnel have been intimidated by the threats of violence
made to them and their families and have stopped
providing their services, thus contributing to the shortage
of providers. The House Committee found that rural clinics
and doctors have become the preferred targets for abortion
foes because elimination of that single provider effectively
eliminates service for many women. See 

U.S.C.C.A.N., at 705. The Senate Committee also reported
that the violence "has . . . taken a severe toll on providers,
intimidated some into ceasing to offer abortion services,
and contributed to an already acute shortage of qualified
abortion providers." S. Rep. No. 103-117, at 14.
Specifically, "some providers have succumbed to the
intimidation and threats." 

At least three
physicians in Dallas stopped performing abortions in 1992
as a result of pressure by an anti-abortion group, two
doctors stopped working in 1993 after receiving death
threats, and since Dr. Gunn, an abortion-provider in
Florida, was shot in 1993, at least eight more doctors have
stopped offering abortion services. See 

. The
House Committee also reported that the shortage of

                               21
abortion providers is "at least partially attributable to the
violence and intimidation described in this report. Doctors
understandably are leaving the field, and new graduate[s]
have little desire to enter the field even as part of a wider
obstetrics/gynecology practice." H.R. Rep. No. 103-306, at
8, U.S.C.C.A.N., at 705.

Moreover, although under Lopez Congress may regulate
intrastate activity that in the aggregate has an effect on
interstate commerce, the anti-abortion movement itself
whose conduct is regulated by FACE is national in scope.
Congress found that many of the activities were organized
and directed across state lines. See S. Rep. No. 103-117, at
13, 14 & n.26; H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N.,
at 706. The House reported that a national strategy has
emerged, orchestrated by anti-abortion leaders. See H.R.
Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. Congress
found that the conduct regulated by FACE was beyond the
control of local and state authorities. Thus, when it enacted
FACE, Congress sought to regulate a truly national
problem.

In sum, due to the acute shortage of abortion-related
services in this country and the resulting national market
for abortion-related services, the conduct proscribed by
FACE -- the commission of blockades and other acts of
violence -- has a substantial effect on the availability in
interstate commerce of reproductive health services. The
effect of the misconduct is to deter physicians from
providing further services and temporarily and permanently
to shut down reproductive health clinics, thus forcing large
numbers of women to travel across state lines to obtain
services. We, thus, must agree with the testimony before
the Senate that,

       the shift of demand for abortion services from those
       areas where clinic access is obstructed to those areas
       where it is not represents the sort of interstate
       commerce effect that is beyond the effective control of
       any one state and is accordingly a proper subject for
       congressional regulation under the Commerce Clause.

                               22


(quoting Senate Hearings, at 97
(statement of Professor Tribe)).4

Our determination that FACE regulates activity that has
a substantial effect on interstate commerce is supported by
Supreme Court cases young and old. Recently, in Jones v.
United States, ___ U.S. ___, 

, 1909 (2000),
the Supreme Court considered whether the arson of an
owner-occupied residence not used for any commercial
purposes qualified as arson of property used in interstate
commerce within the meaning of the federal arson statute.
The Court held that arson of a private dwelling was beyond
the reach of federal commerce power to criminalize arson.
See 

To determine, however, whether the arson
of a particular facility is a commerce-affecting act, the
Court instructed that "[t]he proper inquiry .. . is into the
function of the building itself, and then a determination of
whether that function affects interstate commerce." Id. at
_________________________________________________________________

4. We respectfully register our disagreement with the dissent. The
dissent characterizes the connection between clinic blockades and
interstate commerce as the same attenuated "but-for-causal chain"
between gender-motivated crimes and interstate commerce rejected by
the Court in Morrison. This view narrowly focuses on the activity
regulated by FACE in the abstract and fails to acknowledge the national
market for reproductive health services in this country. Congress
determined that the abortion provider shortage in the United States has
resulted in a national market for abortion services. In this context,
abortion-related violence committed to close down a reproductive health
clinic or deter a woman from accessing its services has a direct effect on
interstate commerce. Abortion-related violence in the specific context of
a national market for reproductive services simply cannot be compared
to gender-motivated crime -- the activity regulated by VAWA. Given the
national market for abortion services, the nexus between the activity
regulated by FACE and interstate commerce is direct.

The dissent also relies on a comparison of anti-abortion violence to
rape, robbery, and trespass to conclude that anti-abortion violence is a
local problem properly regulated by the anti-abortion movement. This
comparison fails to acknowledge the motivation of the anti-abortion
movement. Although the individual tactics of anti-abortion activists may
have similar characteristics as common law crimes, the comparison ends
there. As Congress found, the anti-abortion movement targets
specifically a branch of commerce that operates in a national market.
Hence, anti-abortion violence is a national, rather than a local, problem.

                               23
1910. Here, the facilities blockaded and temporarily or
permanently closed by the activities of anti-abortion
protestors are businesses that provide reproductive health
services and are directly involved in interstate commerce.
Thus, under the functionality test provided in Jones, the
blockading and destruction of reproductive health clinics,
just like the arson of a commercial building, is a commerce-
affecting activity and therefore properly regulated by
Congress.

In Atlanta Motel v. United States, 

, 250-58
(1964), the Supreme Court upheld Title II of the Civil Rights
Act of 1964 as a proper regulation of an activity that affects
commerce. The holding was premised on the conclusion
that discrimination in restaurants results in serving fewer
customers, therefore adversely affecting interstate
commerce. Here, given Congress's specific findings that
there exists a national market for reproductive health
services suffering from a shortage in services, the effect of
temporarily and permanently shutting down reproductive
health clinics that are often frequented and staffed by
people crossing state lines has a direct effect on interstate
commerce under the reasoning presented in Atlanta Motel.

In sum, we conclude that the activity regulated by FACE
is economic in nature. We further determine that due to the
national nature of reproductive health services and anti-
abortion protests, the civil penalty provision is within the
boundaries of Congress's power to regulate interstate
commerce. Applying the deference that is due Congress's
findings, see 

-31, we further
conclude that, unlike the statutes reviewed in Lopez and
Morrison, FACE regulates conduct that Congress had a
rational basis to conclude has a direct and substantial
effect on interstate commerce. We hold, therefore, that
FACE falls within the scope of congressional authority
under the Commerce Clause as a legitimate regulation of
activity having a substantial effect on interstate commerce.

B. First Amendment.

Finally, we join the decisions of the courts of appeals that
FACE does not regulate speech and expression protected by
the First Amendment. See 

;

                               24
United States v. Balint, 

, 934-36 (7th Cir.
2000); 

-98; United States v. Wilson,

, 662-64 (7th Cir. 1998), cert. denied, 

(1999); 

; 

; 

; 

; 

-24; 

. These courts have thoroughly addressed
the arguments presented by Defendants in this case and we
are in full agreement with their decisions. For this reason,
we do not expound on our analysis of these claims.

Defendants first argue that FACE is a view-point based
restriction on speech and expressive conduct that is
protected under the First Amendment. FACE is not view-
point based. The language of the statute and the legislative
history demonstrates that FACE governs all individuals and
groups that obstruct the provision of reproductive health
services and religious worship. The purpose of FACE was to
protect clinics, their staff, and patients from the harm
suffered when their right to provide and receive
reproductive health services was interfered with. The law
applies equally to all who interfere with the provision of
these services, regardless of the motivation for the conduct.
See 

-97; 

;
see also Pro-Choice Network of Western New York v.
Schenck, 

, 386 (2d Cir. 1995) (en banc), aff 'd
in part, 

(1996) (holding that because the
purpose of an injunction enjoining a group of anti-abortion
protestors was to prevent the harm that prospective
patients would suffer if the anti-abortionists' activities
continued, the injunction was content neutral). Thus,
Congress did not pass FACE because of disagreement with
the message of anti-abortionists. Accord Hill v. Colorado,

(2000) (holding Colorado law that makes it
unlawful for any person within 100 feet of a health care
facility's entrance to knowingly approach within eight feet of
another person without that person's consent is a content-
neutral restriction). Because FACE prohibits conduct
regardless of the view-point of the actor, FACE does not
discriminate on the basis of content.

Furthermore, FACE, which is view-point neutral, governs
conduct not speech. See 

;

                               25
5. Defendants also argue that because the Attorney General described
the actions of lawful protesters in its appellate brief, FACE, as applied
in
this case, is unconstitutionally vague and overbroad. This argument is
without merit.

; 

. By its
very terms, FACE regulates "force," "threat[s] of force," or
"physical obstruction." 18 U.S.C. S 248(a). Activities that
injure, threaten, or obstruct are not protected by the First
Amendment, whether or not such conduct communicates a
message. See 

; 

. Although the conduct may have "expressive
components," this does not exempt it from governmental
prohibition. 

. We hold that FACE is
a valid restriction of conduct that has an expressive
component under the three-part test in United States v.
O'Brien, 

, 376-82 (1968). FACE serves the
important governmental interest in ensuring public safety
and a woman's right to seek reproductive health services;
this interest is unrelated to the suppression of free speech;
and FACE is narrowly tailored to meet these ends. See

-98; 

.
FACE is therefore constitutional under O'Brien .
Accordingly, we hold that FACE is constitutional under the
First Amendment.5

CONCLUSION

       Therefore, we conclude that compensatory statutory
damages under FACE are properly awarded per violation
and jointly and severally among defendants who
participated in the violation. Furthermore, we join our
sister circuits and hold that FACE is a constitutional
exercise of Congress's commerce power and does not violate
the First Amendment. The District Court is affirmed.

                                26
WEIS, Circuit Judge, Dissenting.

Were I to reach the damages issue in this case, I would
agree with the majority's conclusion that defendants are
liable on a joint and several basis per incident, and not per
individual. Obviously, if the government had sought actual
damages, it would have been restricted to recovering an
amount proven at trial, and that sum could be recovered
only once. The fact that Congress provided for statutory
damages as an alternative to establishing the actual loss
does not change the nature of the compensation, nor make
it cumulative.

However, I differ with the majority in its conclusion that
FACE survives constitutional scrutiny. I am aware that
seven Courts of Appeals have upheld the constitutionality
of the Act. Some of these decisions were made over dissents
arguing that FACE could not be sustained under the
analysis in United States v. Lopez, 

(1995).
Although the Courts of Appeals opinions considered Lopez,
they essentially treated it as a narrow holding that did not
affect measures such as FACE.

Doubts that Lopez had application beyond its unique
factual setting, however, were dissipated by the expansive
holding in United States v. Morrison, 

(2000). There, the Court revisited the question of Congress'
power under the Commerce Clause to legislate on matters
traditionally within the province of the States. Setting aside
portions of the Violence Against Women Act, the Court
wrote that "[w]e accordingly reject the argument that
Congress may regulate non-economic, violent criminal
conduct based solely on that conduct's aggregate effect on
interstate commerce. The Constitution requires a
distinction between what is truly national and what is truly
local." 

Continuing, the Court said, "we can
think of no better example of the police power, which the
Founders denied the National Government and reposed in
the States, than the suppression of violent crime and
vindication of its victims." 

and Morrison mandate limits to the
federalization of local crime under the aegis of the
Commerce Clause. FACE, like the Gun-Free School Zones

                               27
Act and the Violence Against Women Act, is an example of
congressional intrusion into criminal law traditionally
within the province of the States. These statutes are similar
in that "neither the actors nor their conduct has a
commercial character, and neither the purposes nor the
design of the statute[s] has an evident commercial nexus."

(Kennedy, J., concurring).

Considered alone, these statements clearly raise the
likelihood that FACE is unconstitutional. Upon more
detailed review, it becomes clear that Morrison permits no
other conclusion.

As the majority here observes, the Supreme Court has
identified three categories of activities that Congress may
regulate under the Commerce power: first, the use of
channels of interstate commerce; second, the
instrumentalities of interstate commerce or persons or
things in interstate commerce, even though the threat may
come only from intrastate activity; and third, activities that
substantially affect interstate commerce. Morrison, 120 S.
Ct. at 1749. No contention has been made that thefirst
category is involved here, and the Courts of Appeals that
have considered the constitutionality of FACE have
generally upheld the Act under the third category. For this
reason, I will begin with a discussion of that point.

I. Regulation of Activities

Having a Substantial Relation To Interstate Commerce

In determining whether Congress may properly regulate
an activity under the third Commerce Clause classification,
Lopez and Morrison present considerations that can be
distilled into the following four questions:

       1) Is the activity of an apparent commercial character;

       2) Does the statute contain an express jurisdictional
       element that may establish a connection with interstate
       commerce;

       3) Are there congressional findings that illuminate a
       reasonable legislative judgment that the activity

                               28
       substantially affects interstate commerce, although
       such an effect is not "visible to the naked eye"; and

       4) Is there a link between the activity and a substantial
       effect on interstate commerce that is not so attenuated
       that the federal-state balance is destroyed?

See 

& n.4; 

. These considerations will be examined in turn.

A. The Activity is Not Commercial

FACE is drafted to prohibit specific conduct outside
reproductive health clinics. It provides in relevant part:

       (a) Prohibited activities. -- Whoever --

       (1) by force or threat of force or by physical
       obstruction, intentionally injures, intimidates or
       interferes with or attempts to injure, intimate 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,
       obtaining or providing reproductive health services;

       . . . .

       (3) intentionally damages or destroys the property of
       a facility, or attempts to do so, because such facility
       provides reproductive health services . . .

       shall be subject to the penalties provided in subsection
       (b) and the civil remedies provided in subsection (c)
       . . . .

18 U.S.C. S 248.

The services provided by abortion clinics are clearly
commercial in nature, conducted as they are in exchange
for money. But these services are not the activities targeted
by the legislation. FACE prohibits third parties from
interfering with patients and staff entering abortion clinics,
as well as from inflicting damage to the property itself. By
its plain language, the statute is directed against the
conduct of those external to a clinic's operations.

As the proscribed activity, a protestor's conduct does not
involve a purchase, sale, or any exchange of value in return

                                29
for the rendering of a service, and cannot in any sense be
deemed economic or commercial in character. Although
blockades may reduce a clinic's revenue, the prohibited
conduct is fundamentally criminal in nature and does not
fit easily within the category of commercial activity.

The fact that criminal conduct may also have financial
effects does not transform that activity into one commercial
in nature. Murder and robbery have monetary
consequences, but that does not transform criminal codes
into commercial regulation. Morrison made it clear that the
nature of the activity to be restricted is determined by an
examination of the conduct itself, and not by such external
factors as financial effects, which are one step removed
from the statute's focus. 

.

In both Lopez and Morrison, thefinancial effects of the
prohibited conduct were not disputed. Justice Breyer
outlined in his Lopez dissent the "obvious" links between
the economy and gun violence. 

(Breyer, J., dissenting). Justice Souter's dissent in Morrison
cited a Senate report from the legislative history that
estimated the impact of violent crimes against women to be,
at minimum, $3 billion annually. 

(Souter, J., dissenting). The Court nonetheless
concluded in Lopez that the Gun-Free School Zones Act
was "a criminal statute that by its terms has nothing to do
with `commerce' or any sort of economic enterprise," 

, and said in Morrison that"[g]ender-
motivated crimes of violence are not, in any sense of the
phrase, economic activity." 

.

It is apparent that the Court examined the prohibited
conduct without reference to its economic effects. Courts
reviewing FACE should employ a similarly disciplined
analysis.

When considering the limits of congressional power, the
Court has adopted a "practical conception of commercial
regulation." 

(Kennedy, J.,
concurring); see also 

(quoting
Lopez). But to sustain FACE, courts must reject that
concept. The statute does not resemble a commercial
regulation, but instead a typical exercise of a state's police

                                30
power: prohibiting trespass, intimidation, and violence; and
providing criminal sanctions as well as injunctions.

The threshold inquiry articulated in Lopez and repeated
in Morrison is consistent with the Court's prior Commerce
Clause decisions. As the Court wrote, "thus far in our
Nation's history our cases have upheld Commerce Clause
regulation of intrastate activity only where that activity is
economic in nature." 

. Two
cases cited by the Court in that context provide a useful
contrast to the present dispute.

In Heart of Atlanta Motel, Inc. v. United States , 

, 261-62 (1964), and the parallel case of Katzenbach v.
McClung, 

, 305 (1964), the Court upheld
legislation requiring hotels and restaurants to make
accommodations open to black patrons as well as white.
The regulated enterprises were clearly within Morrison's
definition of economic activity. It was the hoteliers and
restauranteurs themselves, in the operation of their
business, who had to alter their conduct in order to comply
with the law. The legislation did not apply to third parties
whose conduct may or may not have been commercial.

FACE does not in any way control the operation of a
clinic in its procedures or selection of patients. That
distinction, as well as the lack of a jurisdictional element,
separates FACE from the Civil Rights legislation upheld in
Heart of Atlanta and Katzenbach.

To cavalierly dismiss the traditional distinctions between
criminal and commercial conduct is to "downplay the role
that the economic nature of the regulated activity plays in
our Commerce Clause analysis." 

. Both Lopez and Morrison made the inquiry into
commercial character a key element to their holdings. In
the present case, the only reasoned answer to the question
of whether the blockading is commercial in character must
be in the negative.

B. The Act Contains No Jurisdictional "Hook"

A jurisdictional element in a statute serves to define the
limits of the regulated activity. Including such a

                                31
requirement assures that the legislation is directed toward
a defined scope of conduct, one more apt to be within the
reach of the commerce power granted to Congress. See
United States v. Bishop, 

, 594 (3d Cir. 1995)
(Becker, Ch.J., concurring in part and dissenting in part).
A statutorily required proof of connection with interstate
commerce mandates a case-by-case inquiry.

Stressing the redemptive power of such an element, the
Court in Lopez discussed United States v. Bass, 

(1971), where it circumspectly read federal gun
legislation to require a nexus with interstate commerce.

. In Bass, the Court chose to avoid
a potential constitutional infirmity in this fashion because
" `unless Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-state
balance.' " 

404 U.S. at 349). Similarly,
Jones v. United States, 

, 1908, 1910 (2000),
carefully interpreted an arson statute so as not to apply to
all private residences and thus avoided the constitutional
issues, despite interstate connections in the forms of a
mortgage, an insurance policy and the use of natural gas.

But in FACE, there is no such ambiguity. Indeed, it
appears that Congress simply sought to extend a"remedy
over a wider, and more purely intrastate, body of violent
crime." 

. Without a
jurisdictional clause to provide a case-by-case limitation,
the Act's reach becomes vulnerable to a Constitutional
challenge.

Because FACE lacks the jurisdictional element, the
government in this case was not required to establish any
connection with interstate commerce. It was not necessary
to show that interstate travel was hindered or affected, that
equipment or furnishings were purchased in interstate
commerce, or that any of the other jurisdictional indicia
that have been used in statutes that have passed
constitutional muster were satisfied. All that the
government had to show was that a clinic, even if a purely
local enterprise, was being blockaded. The prosecutor thus
had almost unlimited discretion to intervene in a purely
local disturbance.

                               32
The preservation of the constitutional allocation of power
between state and federal governments is a serious concern
for both the legislative and judicial branches. Including a
jurisdictional requirement in a statute is one way Congress
can demonstrate that it recognizes this important issue and
has acted in light of that knowledge.

The absence of a jurisdictional clause in FACE is a fatal
flaw, one that is not cured by the congressionalfindings
that will be discussed next.

C. The Legislative Findings Are Inadequate

Unlike Lopez, but like Morrison, FACE's legislative history
contains congressional findings. As a result of hearings,
Congress alleged in Committee reports and in floor debates
that patients and doctors travel interstate for abortions;
that local authorities were sometimes unable to control
violence at abortion clinics; and that obstructionist tactics
had caused losses in the millions of dollars, caused clinics
to close, and had intimidated physicians as well as
patients. Based on anecdotal evidence, Congress decided
that federal intervention authorized by the Commerce
Clause and section 5 of the Fourteenth Amendment was
appropriate.

On several occasions, we have said that congressional
findings are entitled to judicial deference and that it is not
our role to " `second-guess the legislative judgment of
Congress.' " United States v. Parker, 

, 30 (3d
Cir. 1997) (quoting 

). Accordingly, all
that was required of a reviewing court was to ensure that
Congress had a rational basis for its legislation. 

that approach may be in other settings,
it can no longer be said that such substantial deference is
due in cases assessing the limits of congressional power
under the Commerce Clause. In Morrison, the Court stated
that "the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of
Commerce Clause legislation." 

.
Whether the effect upon interstate commerce is substantial
enough to make Congress' exercise of power under the

                               33
Commerce Clause appropriate "is ultimately a judicial
rather than a legislative question." 

basis for concluding that blockades have a
substantial effect upon interstate commerce, Congress
reasoned that obstructions that deter patients from going to
a clinic caused diminished business for the enterprise. In
some cases, when clinics closed, women were required to
travel, perhaps interstate, to obtain the services of another
establishment.

This is the very same "but-for causal chain" of logic that
the Court explicitly rejected in Morrison. 

If
every attenuated effect upon interstate commerce stemming
from an occurrence of violent crime satisfied the
substantial effects test, then Congress could "regulate any
crime as long as the nationwide, aggregated impact of that
crime has substantial effects on employment, production,
transit, or consumption." 

of the Courts of Appeals that have upheld
FACE all rely heavily on the legislative history for
concluding that a substantial effect on interstate commerce
existed. See United States v. Weslin, 

, 296 (2d
Cir. 1998); United States v. Bird, 

, 678 (5th
Cir. 1997); Terry v. Reno, 

, 1415-16 (D.C.
Cir. 1996); United States v. Dinwiddie, 

, 920-21
(8th Cir. 1996); United States v. Wilson, 

, 681
(7th Cir. 1995); Cheffer v. Reno, 

, 1520-21
(11th Cir. 1995); American Life League v. Reno , 

, 647 (4th Cir. 1994). But these decisions are undercut
by Morrison. With the asserted justifications
constitutionally infirm, the legislative history does little to
demonstrate a reasonable congressional judgment that the
prohibited activity substantially affects interstate
commerce.

D. Any Link is Too Attenuated

As was said in Lopez, "[i]n a sense any conduct in this
interdependent world of ours has an ultimate commercial
origin or consequence, but we have not yet said the
commerce power may reach so far. If Congress attempts
that extension, then at the least we must inquire whether

                                34
the exercise of national power seeks to intrude upon an
area of traditional state concern." 

(Kennedy, J., concurring). Any supposed link between the
proscribed conduct in FACE and interstate commerce, if
one exists, would be so attenuated that it could be used to
also justify a general federal police power.

Even assuming that some of the surgical instruments,
medications, furnishings and equipment were in interstate
commerce at some point, such a connection is so nebulous
that it provides no useful boundary under the Commerce
Clause. According to Morrison, allowing such remote factors
to govern constitutional limitations would allow Congress to
"completely obliterate the Constitution's distinction between
national and local authority." 

.

Persons seeking to block access to abortion clinics may
be a national problem, but in that sense, rape, robbery and
trespass present national concerns as well. Being a mere
commonality of the several States does not justify federal
regulation of these matters under the auspices of interstate
commerce.

The conduct at issue here -- blocking access to a
building and verbally intimidating those who attempted to
enter -- is a quintessentially local problem. Despite that
obvious and inescapable fact, the federal government chose
to use its resources where they were neither required nor
appropriate.

Because the prohibited activity has no commercial
character and no jurisdictional element need be proved, the
statute as drafted impermissibly extends federal jurisdiction
over conduct that is purely and simply intrastate and has
no relationship in any substantial manner to interstate
commerce. Without a jurisdictional prerequisite, FACE
leaves the federal government free to intrude into a state's
sovereign duty to maintain order in any abortion clinic-
related disturbance, no matter how trivial.

Contrary to the congressional findings, here there was no
abdication of responsibility by state authorities. A state
court had issued an injunction against obstructing entry to
the clinic. On each of the three occasions when the conduct
occurred, the local police intervened, arrested protesters,

                                35
and filed state criminal charges. All of the blockades were
controlled by local authorities, including the last one, which
caused the local police to seek assistance from neighboring
municipalities. The only reported injuries were the result of
one demonstrator kicking and head-butting a police officer.

From the standpoint of local law enforcement personnel,
the conduct that FACE addresses is not extraordinary, but
is akin to disturbances following a high school game
between bitter rivals, where fans demonstrate their loyalty
in mass unruly gatherings. Celebrations by fans of Super
Bowl champions frequently require intervention by city
police to maintain order and protect property (some of it
undoubtedly in interstate commerce). Near riots at rock
concerts by performers who have traveled interstate are
routinely controlled by local police forces. Many of the same
arguments used to justify FACE could be used to federalize
criminal conduct of this nature, despite the competence
state authorities have demonstrated over the years. 1

It is difficult to understand why the federal government
invoked FACE when local authorities had the situation well
in hand. Duplication of state and federal injunctions wastes
judicial resources and leads to uncertainty and confusion.
Moreover, overlapping of enforcement authority is
detrimental to the federal system and the liberties it
secures. "[C]itizens must have some means of knowing
which of the two governments to hold accountable for the
failure to perform a given function. `Federalism serves to
assign political responsibility, not to obscure it.' " 

(Kennedy, J., concurring) (quoting FTC
v. Ticor Title Ins. Co., 

, 636 (1992)). When
overlapping occurs, the lines drawn by federalism are
blurred and the "resultant inability to hold either branch of
the government answerable to the citizens is more
dangerous even than devolving too much authority to the
remote central power." 

(Kennedy, J., concurring).
_________________________________________________________________

1. Where state officials are unable to adequately control disturbances
with their own resources, 42 U.S.C. S 10501 allows officials to petition
the Attorney General for assistance from the federal law enforcement
community.

                               36
FACE is a glaring example of the federalization of local
criminal law that is fatally flawed in its implementation
because it regulates activities with no commercial
character. The statute contains no jurisdictional element
which might cabin its operation within the confines of the
Commerce Clause, and the congressional findings fail to
provide the necessary justification for federal intrusion into
local law enforcement.

II. Instrumentalities of Interstate Commerce

The government also argues that FACE may be sustained
under the second category noted by the Supreme Court--
protection of the instrumentalities of interstate commerce
or persons or things in interstate commerce. The Court of
Appeals in United States v. Bird, 

, 674 (5th
Cir. 1997) concluded that FACE was not sustainable under
this second category because no evidence was submitted at
trial to support such a conclusion. The Court in Terry v.
Reno, 

, 1415 (D.C. Cir. 1996) simply noted
that only the third category was relevant to the case before
it.

The Court of Appeals in United States v. Dinwiddie, 

, 919-20 (8th Cir. 1996), considered this second
category, observing that the clinic in that case was located
in a metropolitan area straddling two states. Because of
this, a number of patients and staff members did not live
in Missouri where the clinic was located, and therefore,
traveled interstate to reach it. 

basis, the court
concluded that the statute protected people and business
in interstate commerce and so was within Congress' power
to enact under the second category. Id. 2
_________________________________________________________________

2. It is interesting, but not determinative, that in Dinwiddie, the record
established the interstate travel of a doctor and some patients. No such
findings were made in the case before us. In any event, the Dinwiddie
evidence would not cure the facial deficiency in the text of the Act
itself.
As a criminal statute, it must give notice of the nature of the conduct
proscribed, United States v. Harriss, 

, 617 (1954), including
jurisdictional facts that must be proved. The fact that the prosecution
produces evidence that could satisfy a hypothetical jurisdictional
element cannot cure the lack of the material element in the statute
itself.

                               37
Dinwiddie, however, failed to consider the significance of
the lack of a jurisdictional hook in FACE, although such
absence was a factor in Lopez. It is noteworthy that the two
cases cited by the Dinwiddie court to support its holding
that the clinic was "in interstate commerce" were based on
statutes that did contain jurisdictional limitations. E.g.,
United States v. American Bldg. Maint. Indus., 

, 275-76 (1975) (Clayton Act); United States v.
Robertson, 

, 670 (1995) (RICO).

I am not persuaded that a purely local commercial
service that is frequented by nearby but out-of-state
patrons is within the scope of the Commerce Clause
without the saving grace of a jurisdictional clause. See
Morrison, 

n.5.

It is significant that in Lopez, the cases cited in support
of the commerce power under the second category involved
such matters as the Safety Appliance Act as applied to
railroad cars used in intrastate and interstate commerce,
Southern Ry. Co. v. United States, 

, 24 (1911),
and fixing intrastate railroad fees that affect interstate
rates. Shreveport Rates Cases, 

, 345 (1914).
Other examples cited by the Supreme Court include
destruction of an aircraft or thefts from interstate
shipments. Perez v. United States, 

, 150
(1971). None of these situations approaches the broad
sweep of FACE, which, it must be said again, lacks any
jurisdictional limitation to restrict its application to those
matters demonstrably in interstate commerce.

III. Fourteenth Amendment

The government also attempts to sustain the statute as a
valid exercise of congressional power under the Fourteenth
Amendment. Morrison provides a short answer to that
contention. The Fourteenth Amendment applies to the
states, and like the Violence Against Women Act, FACE is
directed at private conduct where there is no indication of
state action. 

. FACE, therefore,
cannot be sustained under the Fourteenth Amendment.

                               38
I conclude that FACE is unconstitutional under both the
Commerce Clause and the Fourteenth Amendment. The
judgments in this case should be set aside.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               39