J. THOMAS MARTEN, District Judge.
On January 19, 2011, Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion services clinic in Wichita, Kansas. Most of the letter centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic. But in the body of the letter, Dillard also wrote that "You will be checking under your car everyday — because maybe today is the day someone places an explosive under it."
The court has previously denied Dillard's motion to dismiss, accepting the government's contention that additional discovery could supply additional context establishing that Dillard's letter was a "true threat" which may be sanctioned under FACE, rather than constitutionally protected speech. With the completion of discovery, Dillard has moved for summary judgment, arguing that the communication cannot be deemed a true threat under existing law.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. Bertsch v.Overstock.com, 684 F.3d 1023, 1027 (10th Cir.2012). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a
The court made initial findings of fact as to the background of the action in its Order of December 21, 2011. 835 F.Supp.2d at 1126-1128. The facts reflect the initial sending of Dillard's letter, its text, and Dr. Means' reaction to it. Neither party challenges or seeks modification of these findings, and they are adopted herein. Rather, the parties supplement these determinations with the results of the discovery conducted since the court's hearing on the preliminary injunction and the motion to dismiss.
During cross-examination at the preliminary injunction hearing, Dr. Means was asked to agree that Dillard did not write in the letter that she would personally place a bomb under Dr. Means' car. Dr. Means agreed that the writer "carefully didn't say she was going to do anything," and instead spoke to "[w]hat some unknown entities" would do. She was asked if the letter spoke about "a possibility that somebody in the future might put a bomb under your car?" and she agreed, "Right, but that's pretty threatening."
She stated she did not know Dillard's actual intentions from the text of the letter, and stressed the lack of clarity in the letter as to who would perform certain acts:
She stated that "a particular person wrote this [letter] to me, and there's not a way to know if it's her or her cronies that feel like they would do anything to prevent ... prevent abortions from returning to Wichita, Kansas."
Dr. Means was asked about whether she inferred a risk of violence on the part of Dillard due to the acts of other anti-abortion activists. She responded:
Dr. Means was not aware of any ongoing plans by Dillard that would constitute a threat to her, and had no evidence of such a threat at time of the hearing. Dr. Means has explicitly acknowledged that she knows nothing of Dillard's current or ongoing plans, does not know that she has any propensity to violence, and does not know that she is the spokesperson for any group.
The Wichita Police Department was given a copy of the letter on January 19, 2011. The officer receiving the letter noted in his report that some person (the report is illegible) "states that she does perceive the letter to be a threat," but that the officer's inspection found "there was not a direct threat against ... Dr. Means."
The defendant further asserts as a proposed finding of fact that "[t]here is no evidence that the Wichita Police Department took any further action," about the letter other than filing the report. However, at summary judgment, the burden is on
After the letter had been forwarded to the FBI, Agent Sean Fitzgerald called Dillard. Dillard told Fitzgerald that "she was not threatening Doctor Means," but only "trying to educate [her] on how her life will change once she begins to provide abortions." Agent Fitzgerald was asked what he would have done, after the telephone call, if he believed that Dillard was "an active threat." He testified there were:
Fitzgerald agreed that the FBI took none of the actions he described.
In addition, the defendant cites Fitzgerald's affirmative response to whether he agreed with court's ruling that "the letter did not portray a true threat." The evidence fails to support the defendant, because it both misstates Fitzgerald's answer,
Dillard testified that she initially thought the call from Agent Fitzgerald, which occurred on April 1, 2011, was an April Fools Day joke. According to Dillard, after Fitzgerald told her about the contents of the letter, she told him that it was "a little vague," and Fitzgerald (allegedly) told her, "It really is no big deal, there isn't anything criminal, all they're wanting is a C.Y.A." She further testified Fitzgerald
The defendant's husband, Dr. Robert Dillard, testified similarly as to the April 1 call by Agent Fitzgerald. According to Dr. Dillard:
Agent Fitzgerald was asked about this conversation, and he did not directly deny making such comments. He testified that
Dillard also cites Agent Fitzgerald's testimony about a prior F.B.I. threat assessment investigation two years earlier, which began after Dillard wrote to Scott Roder, who was imprisoned for the murder of Dr. George Tiller. The 2009 assessment reported:
The assessment had also concluded no reason to continue investigation of Dillard. The investigation reported that Dillard felt that Scott Roeder had made a mistake.
Much of Dillard's motion rests on her own deposition testimony. She explains her own state of mind in writing the passage in the letter about Dr. Means having to check under her car:
Dillard also states that she told the F.B.I. when they came to interview her that, while she was glad Dr. Tiller was no longer performing abortions, she had not wished for any harm to him. She believes that "we should do within the law whatever we can do to stop abortion." She believes that Christians opposed to abortion should do more than "just pray about it," but this means engaging in the political process, performing sidewalk counseling, and other activities "within the bounds of the law." Asked if she believes Roeder's actions were "good and right," Dillard responded that "the consequences of what he did was good, saving children [but] I can't make that leap to where violence is a good thing, no."
Dillard has never engaged in any illegal violence, and did not intend any threat against Dr. Means. Asked about specific passages in the letter, she has stated that these refer purely to the public and professional opprobrium directed at abortion providers, and to actions of prayer and protest, or "whatever other legal means we [opponents of abortion] have at our disposal."
Dillard notes that Dr. Means was also in Wichita during the "Summer of Mercy," and knew that abortion clinics had been the target of numerous protestors in the past. She had seen protestors in Kansas City during her training, and knew that protestors had obtained her car registration. Dr. Means also knew that Dr. Tiller had driven an armored vehicle. She had also read an article about Operation Rescue in which the organization stated it would do everything it could to prevent the opening of an abortion clinic in Wichita. She did not view this as particularly threatening because it didn't sound like a specific threat.
The defendant also cites evidence which she suggests shows that Dr. Means did not take the letter as a serious threat. Thus, a July, 2011 story in the New York Times
Dr. Means has affirmatively testified that when she received the letter, she felt anxious and concerned. After receiving the letter, she took several security measures, including parking her car in sight of her office; taking her car to the mechanic; installing door alarms; and staying away from her home. Andrea Hamel, Dr. Means' office manager at the time she received Defendant's letter, found the letter to be threatening. She testified that she could not "even feel safe at [her] home or anywhere" she went, because she had to "wonder if [she was] going to walk outside and if there was going to be someone out there following [her] or if there was an explosive under [her] car."
At some point, Dr. Means experienced difficulty with her vehicle and took it to a mechanic. She asked him if it was natural wear and tear of if it could have been some kind of sabotage or otherwise related to Dillard's letter. He told her that it was wear and tear. Dr. Means also testified at the preliminary injunction hearing that Dillard's warning letter is similar in content to what she had heard from family and friends. Such warnings did not bother her, she has testified, because of the clear intent behind them, since if the communication "is made out of concern for you, then your're not that — you're not scared about it."
Dillard stresses that Dr. Means did not receive any psychological or emotional counseling directly due to Dillard's letter, although she has discussed it in counseling sessions that were already ongoing. Since the 1990s, Dr. Means has taken an antidepressant medication. Dillard also cites testimony from Hamel, who is no longer Dr. Means' office manager, that Dr. Means was not credible or trustworthy, and that her perception of reality is "a bit skewed."
In its response to Dillard's summary judgment motions, the government stresses that Dillard began corresponding to Scott Roeder while he was in prison for the murder of Dr. Tiller. There is no evidence, however, that the fact of that correspondence was public information at the time that the letter was sent. Nor does it appear that Dr. Means has ever learned the content of that correspondence. While Dr. Means learned from some reports that Dillard admired Roeder's convictions, the very same sources explain that Dillard has publicly deplored his violent actions. There is nothing in the evidence before the court showing that Dillard ever supported Roeder's violent action.
Thus, Dillard has been quoted in a newspaper to the effect that "[w]ith one move [Scott Roeder] was able ... to accomplish what we had not been able to do.... So he followed his convictions and I admire that." But the article is also explicit: Dillard admired Roeder's "convictions," but she did not advocate the use of violence.
The government contends that Dillard sought by her letter to prevent Dr. Means from providing abortions in Wichita. The plaintiff agrees that she sought to dissuade Dr. Means from her announced course of action, but that she never indicated any intent to "prevent" such a course of action, with its implication that she block Dr. Means' will by force or threat. Asked if
The government suggests that much of the letter — with its representations that Dillard would work with the Christian community in general and the local community in particular through legislation and picketing — was simply false. According to the government, in her deposition Dillard "admits that she has had no contact with any church or member of any congregation concerning Dr. Means." (Dkt. 188, at 6). Thus, according to the government, Dillard is not credible and the letter can only be seen "only as a threat." (Id., at 11).
As a preliminary matter, it is hard to see how the government's evidence discredits Dillard, where the letter never indicates that Dillard would personally act in concert with all three of the local churches. Instead, the letter refers to collective action on the part of the anti-abortion movement in general, and never states that Dillard was going to personally engage in any particular activity.
Second, the letter simply indicated that the local Christian community would stand against Dr. Means "every step of the way," if she continued with her announced plans. Standing in the way, in this context, meant that the local anti-abortion community would "[p]ray, protest, [or use] whatever other legal means we have at our disposal." However, as will be discussed further in connection with Dillard's partial summary judgment motion, Dr. Means has not continued with her plans to open the planned abortion facilities in Wichita; she has abandoned them, largely due to recent changes in Kansas law. Accordingly, there was neither reason or place to picket.
Third, Dillard's decision to refrain from vigorous anti-abortion picketing or lobbying may be due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice. Almost immediately after the sending the letter, Dillard became the target of investigations by the Wichita police and the F.B.I., followed by the present civil prosecution. Faced with such investigation and litigation, it is utterly unsurprising that Dillard has ceased political activity she might have otherwise undertaken. The government's contention that Dillard never intended to follow through with such activities is simply speculation.
More importantly, the government's underlying premise — that Dillard "admits" she has not engaged in any anti-abortion activity other than sending the letter to Dr. Means — is false. The evidence cited by the government does not support its claims. In her deposition, Dillard stated that she had no contact with two of the three local churches identified in the letter (Maranatha Church and Revelation Ministries). But Dillard expressly states that she has attended the third local church (The Journey) as "member, worship leader, [and] youth worker." She has spoken to church groups about abortion generally, without mentioning Dr. Means by name.
The government asserts that Dillard does not regret writing the letter, and would do it again. In support of this contention, the government notes Dillard's testimony that "I did what the Lord asked me to do. He impressed upon me that I needed to write the letter and I did." This response, however, came in response to an inquiry as to whether she would send the "same" letter again. In the context of the deposition, it appears that Dillard would send the same letter again in 2010, not that she would send similar letters in the future.
The government also cites a Reuters news article from May 16, 2013, that Roeder, who is serving a life sentence, was facing additional administrative charges for his comments in a telephone interview with an abortion opponent in Des Moines, Iowa. Roeder reportedly called the plans of Julie Burkhart to open an abortion clinic in Wichita a "shame and a disgrace." Roeder told the interviewer: "To walk in there and reopen a clinic, a murder mill where a man was stopped, is almost like putting a target on your back — saying, `Well, let's see if you can shoot me.'" The same article states that Burkhart (the director of the non-profit Trust Women Foundation, which owns Dr. Tiller's former clinic) has had her home picketed, and that "she has been called a killer in some anti-abortion procedures."
But there is absolutely nothing in the article which would tie Roeder's comments to Dillard. There is also nothing to show that these events were ever known to Dr. Means, or that they occurred prior to her decision to abandon her planned clinic. There is nothing indicating that Burkhart has been the target of any actual or threatened violence. To the extent the article suggests any threat, it is solely on the part of a person already serving a life sentence, incarcerated in a maximum security prison.
Finally, the government cites Dr. Means subsequent deposition in which she was asked if she had "come across" additional evidence of violent action by Dillard, and responded, "Not specifically," but that she has been shown:
The government has cited absolutely nothing which would corroborate the allegations in the anonymous letter. This anonymous tip letter is plainly inadmissible, and the government cannot indirectly achieve its introduction by getting Dr. Means to speculate about it. More importantly, even after being shown the anonymous letter, Dr. Means still testified that she has seen nothing after the April 2011 preliminary injunction hearing which makes her think an injunction is necessary, and further stated she has no evidence that Dillard intends to contact her in the future.
In Dillard's motion for summary judgment, she first argues that no true threat exists because there is no evidence showing that she had "a determination, design, purpose, goal, or intention to inflict harm on Dr. Means." (Dkt. 182, at 30). Thus, she contends that she lacked any subjective intent to threaten, one of the essential components of a true threat as set forth in
Dillard relies on two Ninth Circuit decisions to support her contention that subjective intent is a separate component of true threat analysis. See United States v. Cassel, 408 F.3d 622 (9th Cir.2005); Fogel v. Collins, 531 F.3d 824 (9th Cir.2008). But other courts have recently rejected this approach. See United States v. Jeffries, 692 F.3d 473, 479-80 (6th Cir.2012) (because the Virginia statute contained its own specific intent requirement, "Black thus did not turn on subjective versus objective standards for construing threats"); United States v. Nicklas, 713 F.3d 435, 440 (8th Cir.2013) (same, holding that true threat analysis does not inherently require the subjective intent to threaten). See also United States v. Turner, 720 F.3d 411, n. 4 (2d Cir.2013) (noting split of authority).
The Tenth Circuit has not explicitly addressed the objective and subjective intent as separate components of true threat analysis. In United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir.2005), the court rejected a collateral attack on the defendant's conviction of conspiracy to violate civil rights after burning a cross outside a house. Following Black, the court observed:
Id. (citations and internal quotation omitted). The defendant cites this language as a requirement that the sender must indeed intend to cause the recipient the "fear of bodily harm or death." The government does not argue the issue, and agrees in its response that "[t]o demonstrate liability under FACE, the United States must show that Defendant intended to intimidate Dr. Means." (Dkt. 189, at 21).
The government argues that Dillard's arguments about her intent are largely about credibility. It correctly argues that much of Dillard's evidence takes the form of the opinions of a local law enforcement officer and the F.B.I., who found Dillard's letter not a threat, and that such opinions are not dispositive.
As noted in the court's factual findings, much of the government's evidence on the issue of intent is simply inadmissible or based on impermissible speculation — an anonymous tip letter, the (erroneous) suggestion that Dillard has not participated in other anti-abortion activities, hearsay evidence of the prison communications by the
Accordingly, the additional discovery has apparently produced nothing in the way of usable evidence on the issue of the defendant's intent, and the sole basis for inferring an intent to threaten is from the text of the letter itself. However, the court need not decide whether that language by itself would justify disregarding the substantial evidence showing that Dillard intended to dissuade rather than threaten. Even if there were a triable question as to plaintiff's subjective intent, the government's claim is fatally flawed because it lacks any proof as to two essential components of the objective portion of the true threat analysis.
First, the threat cannot be hypothetical or conditional or predictional; the threat must be imminent, likely, and unconditional. A threat is not a true threat if it is "expressly conditional in nature." Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). A communication with "equivocal language" remains protected speech. United States v. Barcley, 452 F.2d 930, 934 (8th Cir. 1971). Where a communication is "equally susceptible of two interpretations, one threatening and the other nonthreatening, the government carries the burden of presenting evidence serving to remove that ambiguity. Absent such proof, the trial must direct a verdict of acquittal." Id. at 933.
In its response, the government makes no attempt to show Dillard's letter threatened any imminent violence. Instead, it misconstrues this court's prior Order as a determination that imminence is not required. (Dkt. 189, at 13). It accomplishes this by citing that portion of the court's Order which agreed that a threat of future violence could constitute a true threat. 835 F.Supp.2d at 1125 (observing that in some cases "a statement that a listener will suffer future violence may be a true threat"). But nothing in the cited passage, or anywhere else in the court's Order, suggests that imminence is not a requirement of a true threat.
To the contrary, the court explicitly noted the controlling authority holding a true threat is one which "`conveys a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected vehement, caustic unpleasantly sharp attacks on government and public officials.'" Nielander v. Board of County Com'rs, 582 F.3d 1155, 1168 (10th Cir. 2009) (quoting United States v. Crews, 781 F.2d 826, 832 (10th Cir.1986) (alterations and internal quotations omitted)). See 835 F.Supp.2d at 1124. Similarly, the court quoted with approval the observation of the Second Circuit in New York ex rel. Spitzer v. Operation Rescue, 273 F.3d 184, 197 (2nd Cir.2001):
See 835 F.Supp.2d at 1130. Similarly, the court stressed that the bomb threats which were the subject in United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir.1999) were true threats because of "specific information suggesting that [the sender] was a participant in the bomb plot, that the bombs were real, and their detonation imminent." Id. (emphasis added).
There must be context linking the sender to the prospective violence. See Magleby, 420 F.3d at 1139 (citing Black, 538 U.S. at 359, 123 S.Ct. 1536 in holding that true threats are those "that communicate the speaker's intent to commit an act of violence against identifiable individuals"). "A communication rises to the level of an unprotected threat ... only if in its context it would have a reasonable tendency to create apprehension that its originator will act according to its tenor." United States v. O'Dwyer, 443 Fed.Appx. 18, 20 (5th Cir.2011). Thus, communications which are predictions of violence by others are not true threats. United States v. Bagdasarian, 652 F.3d 1113, 1119 (9th Cir.2011).
The court previously denied Dillard's motion to dismiss in light of the preference for trial by jury, coupled with the government's representation "there may well be other facts that provide further context, but which are unknown and unknowable to the United States at this time, when discovery has yet to be conducted." 835 F.Supp.2d at 1120 (quoting Dkt. 21, at 6 n. 4).
After the completion of extensive discovery, the government has failed to supply such further context. Rather, the evidence before the court, together with controlling precedent, establishes that Dillard's letter falls short of a true threat, and that summary judgment is therefore warranted. Ordinarily the existence of a true threat is a matter for the finder of fact. Id. at 1132. However, where the evidence fails to show an objective threat of imminent violence by the sender, the matter is appropriately resolved by the court. See Corales v. Bennett, 567 F.3d 554, 563-64 (9th Cir.2009) (summary judgment may be appropriate if the evidence ultimately fails to show that the defendant "did not express any intent to commit any act of unlawful violence or to inflict bodily harm"). See also United States v. Lincoln, 403 F.3d 703 (9th Cir.2005) (reversing defendant's conviction for threatening the President, where defendant sent a single letter which simply predicted potential violence by third parties).
Turning to Dillard's letter to Dr. Means, it is clear that the threat is predictive and contingent, and addresses a danger which is not imminent in nature. Dillard wrote Dr. Means: "You will be checking under your car everyday — because maybe today is the day someone places an explosive under it." The letter makes no reference to any imminent danger, such as in Viefhaus, where the sender alleged that bombs in 15 major cities would detonate within a week of the communication. To the contrary, Dillard's letter not only lacks any specific time frame, it is doubly conditional. First, the danger is intendant on the establishment of the planned clinic (which could take months or years). Second, and even then, the letter proposes only a possibility, that "maybe" such a bomb will be placed.
Despite its energetic pursuit of discovery, the government has supplied no additional context which would objectively support the determination that actual violence against Dr. Means was likely and imminent. Of course, as it did at the time of
835 F.Supp.2d at 1131. All of these observations have apparently been confirmed by discovery, and the government supplies neither evidence nor argument to show that the threat of a car bomb may be objectively viewed as imminent, likely, and unconditional.
The same result is equally true as to the second element of the objective element of true threat analysis, the defendant's personal participation in such a car bombing. Again, the court's earlier observations are applicable here:
835 F.Supp.2d at 1131.
The evidence produced by discovery has confirmed these observations. As noted earlier, Dillard's letter suggests that at some indefinite, future time, "someone" may act violently against Dr. Means. The government can offer nothing more than Dr. Mean's admitted speculation that it is "quite possible" that Dillard may be "a spokesperson that would incite others to violence." Dr. Means acknowledges that she knows nothing of Dillard's propensity to violence, and indeed that she has received the same sort of warnings from her own family.
Dillard sent a single letter to Dr. Means, under her own name, in an envelope bearing her return address. The letter makes no reference to any violent action by Dillard, and is largely devoted to pragmatic and religious arguments against providing abortion services. The only witness presented by the government, Dr. Means, admits that the letter says nothing about
It is not enough for the government, when presented with defendant's motion for summary judgment, simply to point to witness speculation that violence is "quite possible," or that the witness "couldn't rule it out." There is simply nothing to show, in the words of Viefhaus, that Dillard intended to convey her "own intent, purpose, or goal" of engaging in violence.
Dillard's letter to Dr. Means is much less vivid than the defendant's letter to the President in United States v. Lincoln, 403 F.3d 703 (9th Cir.2005). The defendant wrote:
403 F.3d at 705. The Ninth Circuit concluded that the defendant's letter was "crude[,] offensive [and] disturbing," but not a true threat:
Id. at 707. The court also rejected the government's argument that the defendant's prior writings in a private workbook could be used to supply a violent context to the letter, because the evidence showed that Lincoln had "disassociated himself from any violent action" by crossing out the writings. Here, the evidence shows that Dillard has never advocated violence, and has publicly rejected violent action. She had nothing to disassociate herself from.
Similarly, in United States v. Bagdasarian, 652 F.3d 1113, 1115 (9th Cir.2011), the defendant wrote in an internet posting that the President "will have a 50 cal in the head soon." The court reversed Bagdasarian's conviction, stressing that the posting "conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure" the President. Id. at 1119 (emphasis added). The court agreed that Bagdasarian's comment was "alarming and dangerous," but cited the Supreme Court's observation in Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) that
Id. at 1120.
Dillard's letter, which is far less alarming that the communications in Bagdasarian or Lincoln, is not a true threat. It suggests neither likely and imminent violence, nor does it suggest that Dillard herself will engage in violence against Dr. Means. After full discovery, the government has supplied no additional evidence of any threatening context which would add to the language of the letter itself. Accordingly, summary judgment in favor of the plaintiff is warranted.
As indicated earlier, Dr. Means has discontinued her plans to open an abortion services clinic in Wichita. The decision occurred after, and in response to, recent changes in Kansas law increasing the regulation of such clinics. She stated that she finalized this decision in the fall of 2011, "because of [Kansas state] law changes." While Dr. Means has testified that the financial costs of providing security were one part of her decision, and that she would feel more secure if an injunction were entered, she does not state that this would change were decision. Her decision is apparently final and conclusive.
After discontinuing her plans, protest activity against her has dropped off. The last protest at her office ended before the preliminary injunction hearing, the last at her home occurred a few months later. As noted earlier, Dr. Means knows of no propensity to violence on Dillard's part, and that she has no additional reason for thinking that Dillard, or any group acting in concert with her, plans any direct violence against her. More generally, Dr. Means simply "feels as though all of that group [the pro-life community] is still against me."
Dillard has filed a separate motion for summary judgment seeking the dismissal of the government's requested relief in the form of a request for a permanent injunction. Here, the defendant stresses that Dr. Means no longer intends to provide abortions services in Kansas. In its Response to the motion, the government stresses that fact questions exists as to both the intent of Dillard in sending the letter, and the credibility of Dr. Means in her reaction to the letter. Otherwise, the government offers very little to support any finding of a likelihood that Dillard will ever send any further communications to Dr. Means. As Dillard points out, she would not have any reason to do so, since Dr. Means has abandoned her plans for opening any clinic in Wichita.
Given the court's finding that the letter was not a true threat, and hence that no underlying FACE violation occurred, the defendant's additional motion for partial summary judgment will be denied as moot. The court notes, however, that in light of the evidence before it, Dillard's motion would appear to have substantial merit, as the balance of factors necessary for injunctive relief does not weigh in the government's favor where it has shown nothing but speculation as to any future FACE violations by the defendant.
The government stresses that Dr. Means was in part dissuaded from opening any clinic because of the cost of security. Her actual deposition answer is more equivocal, indicating that "there are a lot of things that go into" a big decision, and security costs were "one of those things."
Dr. Means' testimony fails to provide support for prospective injunctive relief for three reasons. First, she explicitly ascribes security costs as but one of "a lot"
The government explains Dillard's failure to engage in any other communications with Dr. Means (other than the original letter) as a simple ruse, writing that "it is not surprising that Defendant has refrained from communicating with or coming near Dr. Means, and from violating FACE, during the pendency of this case, for she has been aware that such action could be used in this proceeding." (Dkt. 188, at 14). But future violations of FACE would in themselves be actionable, and likely bring a governmental response against Dillard equally as heavy as the present action. If the glare of publicity and the prospect of additional government legal action are sufficient by themselves to prevent further communications by Dillard, they would remain even in the absence of separate injunctive relief. That is, the government effectively concedes that Dillard is a rational person, at least in the sensing the folly of additional communications with Dr. Means.
Beyond this, the government offers primarily generalized arguments that fact questions exist as to Dillard's actual intent in sending the letter, and the extent and credibility of Dr. Means' explanation of her subjective response to that letter. Even if this were true, the focus here is whether permanent injunctive relief would serve any purpose to deter future illegal acts by Dillard, given that Dr. Means will not be opening her clinic.
As to this, the government's response relies heavily on a single passage in Dillard's deposition, in which Dillard indicated she would send the same letter again. But, as noted earlier, in the context of the deposition it is clear Dillard was being asked about her regrets or feelings about the 2011 letter, and if she would send "the same letter" if she had to chance to do so again. The deposition testimony was clearly about the 2011 letter; Dillard was not directly asked about future communications towards Dr. Means.
Dr. Means has explicitly acknowledged that, after the court denied the requested preliminary injunction in April, 2011, she has acquired no new evidence which she believes shows the need for an injunction. She does not know that Dillard has ever come near her, other than at the preliminary injunction hearing. She knows that Dillard has publicly stated that she opposes violence, and that she has no intention of committing acts of violence.
As a party seeking injunctive relief, the plaintiff "must show more than past harm or speculative future harm." Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir.2006). See also Riggs v. City of Albuquerque, 916 F.2d 582, 586 (10th Cir.1990). The government must show some "current and ongoing plans or activities" by Dillard, or persons with whom she is acting in concert, "are currently engaged in the plans or activities that constitute a threat of violating F.A.C.E." New York ex rel. Spitzer v. Operation Rescue Nat'l, 273 F.3d 184, 200 (2d Cir.2001).
Wholly apart from the legitimate and inevitable constitutional challenges which accompany any attempt at the restraint of speech, it is too late for the government to suddenly assert that, notwithstanding all the pleadings and discovery in the last two years, it now seeks injunctive relief, not on behalf of Dr. Means, but on behalf of some other, unidentified health care providers. Even if that were the case, the result would be the same: the plaintiff has failed to provide supporting probative evidence of an ongoing plan on the part of the defendant to make true threats violating FACE. As noted earlier, the evidence of future threats against Dr. Means is purely speculative — the suggestion of future threats against additional persons is speculation piled on top of speculation.
Finally, the government cites to one of Dillard's prison letters, which the court has previously and explicitly held to be a privileged communication. The government justifies this remarkable action by asserting (Dkt. 189, at 23 n. 5) that Dillard referenced the letter in her motion, thereby effectively waiving the privilege. But the fact asserted by the plaintiff (Dkt. 182, ¶ 47) is a recitation of Dillard's deposition responses. Those answers were questions posed by government's counsel. It was thus the government's counsel who quoted from the privileged letter before asking a generic question about Dillard's religious beliefs. Dillard's response does not focus in any way on the letter, but her beliefs in general:
Dillard was asked generally about her religious beliefs, and her general answer was the evidence cited in the plaintiff's brief. There was no waiver.
IT IS ACCORDINGLY ORDERED this 15th day of August, 2013, that the defendant's Motion for Summary Judgment (Dkt. 182) is hereby granted; defendant's Motion for Partial Summary Judgment (Dkt. 181) is denied as moot. The government's Motion to Unseal (Dkt. 161), predicated on determination of the United States Magistrate Judge (Dkt. 160) is denied in light of the court's subsequent order of April 19, 2013, 2013 WL 1704919 (Dkt. 175). The government's Motion for Leave (Dkt. 183), seeking to partially unseal certain exhibits, is denied in light of the explicit provisions in the Privacy Act Protective Order (Dkt. 140) entered in the
