No. 99-2
In the Supreme Court of the United States
RUBY MCDANIEL, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
SUSHMA SONI
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the court of appeals correctly held that the motivation element
of the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. 248,
was satisfied by proof that petitioners engaged in the prohibited conduct
against another 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," 18 U.S.C. 248(a)(1).
2. Whether the imposition of modest civil penalties under 18 U.S.C. 248(c)(2)(B),
absent a government showing of damages, constitutes criminal punishment.
In the Supreme Court of the United States
No. 99-2
RUBY MCDANIEL, ET AL., PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-6) is unpublished, but
the judgment is noted at 175 F.3d 1009 (Table).
JURISDICTION
The judgment of the court of appeals (Pet. App. 7) was entered on March
26, 1999. The petition for a writ of certiorari was filed on June 24, 1999.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. a. Petitioners are ten individuals who, on July 23, 1996, entered the
building of the Eastern Women's Center (EWC), a Manhattan reproductive health
clinic, and "physically blocked the elevator and door entrances to
the clinic by locking themselves together at the neck and ankles."
Pet. 1; Pet. App. 3. As a result of petitioners' actions, "no one was
able to gain access to the clinic for several hours until the police forcibly
removed them." Pet. App. 3. Petitioners subsequently were convicted
of violating a New York City ordinance that makes it unlawful for a person
to obstruct or block another person from entering or exiting a reproductive
health care facility with the intent to prevent another person from obtaining
or rendering a reproductive health care service or counseling. 1A New York,
N.Y., Admin. Code & Charter tit. 8, § 8-803 (Supp. I 1999).
b. On December 6, 1996, the United States brought a civil action against
petitioners in the United States District Court for the Southern District
of New York, alleging that petitioners had, "by physical obstruction,
intentionally interfered with and/or attempted to interfere with patients
and employees of the EWC because they were obtaining and/or providing reproductive
health services," in violation of the Freedom of Access to Clinic Entrances
Act of 1994 (Access Act), 18 U.S.C. 248. C.A. Supp. App. 9-11. The government
sought pemanent injunctive relief, statutory damages, and civil penalties.
Id. at 1-11.
After a jury trial, petitioners were found liable for violating the Access
Act and the district court entered a permanent injunction prohibiting petitioners
from obstructing or being present at the EWC. After two hearings to determine
the appropriateness of imposing civil penalties, the district court imposed
such penalties on certain of the petitioners who the court determined had
sufficient financial resources. Pet. App. 3. The penalties imposed ranged
from $1000 to $6000. The court imposed no civil penalties on petitioners
Buchta, McDaniel, and Raiser because of their insufficient financial resources.
Id. at 3 & n.1.
2. The court of appeals affirmed. Pet. App. 1-6. The court rejected petitioners'
argument that proof of a discriminatory mental state is required under the
Access Act, 18 U.S.C. 248, and that the trial evidence was inadequate on
that element. See Pet. C.A. Br. 2-5. The court relied on its recent decision
in United States v. Weslin, 156 F.3d 292, 298 (2d Cir. 1998), cert. denied,
119 S. Ct. 804 (1999), holding that the plain language of the statute establishes
that the motive element of the Access Act is satisfied if a defendant meant
"to obstruct and interfere with the obtaining and provision of reproductive
health services." Pet. App. 4 (quoting Weslin, 156 F.3d at 298). The
court found that petitioners' actions "fall squarely within the ambit
of the statute," because petitioners "stipulated that their purpose
in blockading the clinic was 'in order to prevent people from receiving
and [the clinic] staff from providing, abortions.'" Ibid. (quoting
C.A. Supp. App. 33).
The court of appeals also rejected petitioners' argument that, because the
government had not provided proof of damages commensurate with the civil
penalties imposed, imposition of such penalties constituted criminal punishment
requiring a heightened evidentiary showing. Pet. App. 5. The court of appeals
noted that, under Hudson v. United States, 522 U.S. 93 (1997), "[w]hether
a particular punishment is criminal or civil is, at least initially, a matter
of statutory construction." Pet. App. 5. The court of appeals concluded
that "[a] reading of the statute manifestly demonstrates that Congress
intended penalties of this sort under it to be classified as civil."
Ibid. The court further noted that "the relatively mild penalties assessed
in this case, imposed with careful consciousness of capacity to pay, do
not rise to the level of 'punitive.'" Id. at 5-6 n.5.1
ARGUMENT
The court of appeals correctly held that the motivation element of the Freedom
of Access to Clinic Entrances Act of 1994, 18 U.S.C. 248, was satisfied
in petitioners' case, and that the civil penalties imposed on certain of
the petitioners did not rise to the level of criminal punishment. Those
fact-specific holdings are correct, and do not conflict with any decision
of this Court or of any other court of appeals. Further review therefore
is not warranted.
1. The Access Act provides, in relevant part, for civil and criminal penalties
for anyone who:
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.
18 U.S.C. 248(a)(1). Thus, to establish a statutory violation, the government
must prove that a person intentionally committed certain proscribed conduct
("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") with a specified motive ("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").2
The court of appeals correctly held that petitioners' conduct met this standard.
As the court recognized, petitioners "stipulated that their purpose
in blockading the clinic was 'in order to prevent people from receiving
and [the clinic] staff from providing, abortions.'" Pet. App. 4 (quoting
undisputed fact in joint pretrial order included in C.A. Supp. App. 33).
Petitioners' contention (Pet. 12) that that stipulation "goes to conduct,
but not to motive" is belied by the plain language of the stipulation
clearly stating the purpose of petitioners' clinic blockade.
In any event, testimony by various petitioners at trial confirmed the undisputed
fact of petitioners' motive.3 See, e.g., C.A. Supp. App. 272-273 (petitioner
Radich admitted that he sat in front of a clinic door "to prevent anyone
from getting in and out" of the door and "for the sole reason
of preventing abortions from taking place that day"); id. at 262-263
(petitioner Gerlach testified that he chained himself in front of a clinic
door "to keep the mothers from killing their babies"); id. at
282-283 (petitioner Conlon testified that he sat down by a clinic door to
"prevent use of the door" and "to prevent the killing of
children"). Therefore, sufficient evidence supported the conclusion
that petitioners, by physical obstruction, interfered with or intimidated
another person (or attempted to do so) with the requisite motive, i.e.,
"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," 18 U.S.C. 248(a)(1).
Petitioners' suggestion (Pet. 12-14) that the jury instructions somehow
failed to require proof of the relevant motive is without merit. As petitioners
concede (Pet. 13), the trial court unequivocally instructed that the government
had to prove that petitioners' obstructive conduct "was done for the
purpose of interfering with or preventing people from obtaining reproductive
health services." See C.A. Supp. App. 397-398. That instruction was
part of the court's explanation of the elements of the offense. The later
comment by the court on which petitioners rely (Pet. 13)-that there "wasn't
much of an issue of intent here" -is properly understood in context
as a reference back to the court's observation that there was not much dispute
about the motive element in light of the trial testimony. See C.A. Supp.
App. 398. The court took care, however, when making that observation to
also emphasize that a jury finding on the element was still required. The
court stated: "I think the defendants who testified frankly admitted
that they were concerned with preventing people from, to use their language,
'killing babies.' That element does not appear to be in hot dispute, but
it is still something that you must find established by a preponderance
of the evidence." Ibid. Thus, there was no contradiction or confusion
in the jury instructions regarding the requisite proof of motive.
2. a. Petitioners' assertion (Pet. 14-20) that the civil penalties imposed
on several of the petitioners constitute criminal punishment because the
government proved no damages or costs is likewise without merit. The Access
Act provides that, in a civil action brought under the Act by the Attorney
General of the United States, the court may award "appropriate relief,
including temporary, preliminary or permanent injunctive relief, and compensatory
damages to persons aggrieved" as described in the preceding section
of the statute. 18 U.S.C. 248(c)(2)(B). The Act further provides that
[t]he 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. 248(c)(2)(B). The statutory language thus clearly reflects an
intent that such a penalty be civil in nature and not depend on proof of
damage to the government.
The court of appeals properly noted (Pet. App. 5-6 n.5) that, in Hudson
v. United States, 522 U.S. 93 (1997), this Court held that "[e]ven
in those cases where the legislature 'has indicated an intention to establish
a civil penalty, we have inquired further whether the statutory scheme was
so punitive either in purpose or effect,' * * * as to 'transfor[m] what
was clearly intended as a civil remedy into a criminal penalty.'" Id.
at 99 (citations omitted). At the same time, this Court emphasized, however,
that "only the clearest proof" will suffice to override legislative
intent and effect such a transformation. Id. at 100 (citations omitted).
The statutory scheme here is not "so punitive either in purpose or
effect" as to justify overriding the intent of Congress and petitioners
have not presented such clear proof to support that result. For example,
petitioners provide no support for their contention that the court of appeals
erred in rejecting the claim that the fines are excessive. As the court
noted, the fines ranged from $1000 to $6000, and it found that those "relatively
mild penalties assessed in this case, imposed with careful consciousness
of capacity to pay, do not rise to the level of punitive." Pet. App.
5-6 n.5. The court's case-specific rejection of petitioners' claim under
Hudson does not merit further review.
b. Petitioners also attempt to raise (Pet. 17-20) a double jeopardy claim,
contending that their case falls within an exception to the dual sovereignty
doctrine articulated in Bartkus v. Illinois, 359 U.S. 121 (1959). But nothing
in the record suggests that the federal authorities were acting as a "tool"
for the state prosecutors, or vice versa, see id. at 123, as petitioners'
theory would require. In any event, petitioners raise this issue for the
first time in this Court, and this Court has, "with very rare exceptions,"
refused to consider claims that were not raised or addressed below. Yee
v. City of Escondido, 503 U.S. 519, 533 (1992).4
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
MARK B. STERN
SUSHMA SONI
Attorneys
SEPTEMBER 1999
1 Because the court of appeals rejected petitioners' arguments on the merits,
it declined to decide whether petitioners had waived their right to appeal
their claim of failure to prove a discriminatory mental state, whether petitioner
McWilliams' default precluded review of his appeal, and whether petitioners
Buchta, McDaniel, and Raiser lacked standing in the appeal because no civil
penalties had been imposed on them. Pet. App. 3 n.1, 4 n.3.
2 The First Amendment does not prevent a civil or criminal statutory provision
from turning on such a motive. Wisconsin v. Mitchell, 508 U.S. 476 (1993).
3 That trial testimony also undermines petitioners' contention (Pet. 11)
that, "[w]hile Petitioners may have been aware that their conduct could
have some undesirable consequences, they acted in spite of these consequences,
not because of them."
4 Because the case does not warrant further review, the Court also need
not, at this juncture, address the issues not reached by the court of appeals.
See Pet. App. 3 n.1.