ARTICLES

Come in Groups

LOCAL JUDGES STACK THE DECK

By Nicholas Owen

Despite the Planned Parenthood lawsuit and temporary restraining order in mid-March against pro-lifers for picketing on the public sidewalk in front of its Mission Valley abortion clinic, groups of pro-lifers, including young adult groups, have continued to pray and picket there almost every Saturday. Planned Parenthood's complaint, filed against six named defendants by James McElroy, a pro-abortion San Diego attorney, is targeted against the large aborted-baby photos.

On March 23 attorneys for the defendants moved the case from superior court to federal court, and in a March 24 hearing on the temporary restraining order, the superior court acknowledged that it no longer had jurisdiction over the case. Seventeen pro- lifers picketed Planned Parenthood on March 27. Police officers summoned by Planned Parenthood declined to make arrests after picketers provided documents showing that the restraining order was no longer valid. Another picket mustered 12 souls for April 24. Although the demonstrators had not notified the police in advance, when they first arrived at Planned Parenthood, said one pro-lifer, "We noticed immediately that there were scores of police cars driving up and down the street, several undercover police officers parked in the Denny's parking lot, in the Wendy's parking lot, and so forth." A process server for Planned Parenthood attempted to serve the picketers, one by name and the rest as " John Doe's," according to two witnesses. Picketers also reported that a Planned Parenthood operative whom they believe to be William Green, its security director, videotaped them, and Planned Parenthood personnel told picketers they had to leave. Two left. The police did not take action against the picketers, however, and all the officers were gone within an hour and a half. Soon a rosary group of about twelve arrived. "I was just feeling the need to pray, so I knelt down...and I was praying that God would provide...more support," said one of the picketers. "It was right after I prayed that prayer that scores of young people showed up and started praying the rosary right behind me."

Eleven pro-lifers were on hand at the clinic on May 1, along with an attorney. Planned Parenthood's security guard took photos of the picketers and their signs. Ironically, Planned Parenthood seeks to bar pro-lifers from "videotaping/photographing/or recording in any way plaintiffs, their patients, visitors, employees or family members." Four pro- lifers were praying the rosary: two young adults and two young adolescents in their charge. Only two police cars were seen in the vicinity. Most pedestrians who pass by picketers at Planned Parenthood are nonconfrontational; some are friendly. On May 1 I noted that all the passersby seemed congenial. One man, a Vietnam veteran, said that passing by an abortion clinic reminded him of his comrades being killed in Vietnam. Another man stopped to gaze at a large photo of an aborted baby and asked, in a heavy foreign accent, "They do that in there?" (Planned Parenthood aborts preborn babies up to five and one-half months old.)

On May 8 about 15 young adults from a rosary group and four other pro-lifers were at the clinic. One of the latter told me the female security guard usually on duty on Saturdays was wearing a pistol. The guard took notes on the picketers as before and scolded one for using a video camera. No police were present.

On the morning of May 15, Ron Brock, a named defendant, was arrested by two San Diego police officers on a citizen's request while picketing at the clinic, for allegedly violating Planned Parenthood's March 12 temporary restraining order. "They [the police] didn't...notify me that it was still in effect, that they would arrest me if I didn't move; they gave me no option; they just walked up and...placed me under citizen's arrest," Brock recalled. "I never saw the woman who placed me under citizen's arrest." The police answered yes when he asked them, "Is this [the restraining order in question] the same one that I was served with a couple of months ago-- we've been out here before with attorneys, with the police department, and it'd been moved to federal court, and it was no longer in effect-- is this the one that I'm being...given a citizen's arrest under by the police department?" The police officers handed him a citation, told him to leave, and emphasized that the police department itself was not making the arrest. "I thought it was no longer in effect and the police department agreed with that; that's why they did not arrest me the last time I was here, with attorneys," Brock protested to the officers. "There is information that this is valid...and a citizen's arrest can be effected at this point," one of the officers replied. "But they have to have a basis for it, do they not?" Brock asked. "They [Planned Parenthood] can do whatever they want, basically," the officer answered. Brock: "They can?" The officer: "They can place you under citizen's arrest." Brock: "For anything?" The officer: "For a violation of that order." The woman ordering the citizen's arrest was Mindy Moore, a Planned Parenthood employee. On May 16 Brock's attorney, Kevin Snider, sent McElroy a letter stating that the temporary restraining order had expired and "in light of this, you should immediately advise your clients that their attempt to enforce this expired TRO exposes them to liability for false arrest and abuse of process." Some pro-lifers connected to the case believe it is perhaps not coincidental that, since Planned Parenthood filed its suit and obtained its restraining order, it has taken aggressive legal action, with police assistance, against lone picketers. They now caution other pro- lifers against picketing or praying alone at Planned Parenthood. When Duke Weilbacher, who was not a named defendant, was served on March 20, he was at Planned Parenthood by himself, as was Brock, when he was arrested in May.

On May 17 McElroy sent Snider a letter requesting $2,600 for attorney's fees. This resulted from McElroy's motions to the federal judge, Napoleon Jones, Jr., to remand the case back to superior court and order the defendants to pay for his work performed for the motion to remand. In his May 10 order granting both motions, Jones' bias against the pro-lifers was evident: "Plaintiffs [Planned Parenthood] are attempting to prevent Defendants' [sic] from trespassing on their private property and harassing their employees and patients." The defendants deny Planned Parenthood's trespassing, harassment and other charges, and according to one of their attorneys, Rick Vattuone of La Jolla, "Everything the defendants did was constitutional."

A handful of pro-lifers picketed Planned Parenthood again on May 18. Lara McGovern, a visiting reporter for Focus on the Family, took notes. A Planned Parenthood security guard videotaped them, and when McGovern tried to identify herself and ask him questions, "He just continued to videotape her and ignored anything she said," reported Sylvia Sullivan, an eyewitness and defendant. Defense attorneys have obtained a declaration from McGovern in which she refutes Planned Parenthood's claim that, on the 18th, the pro-lifers were heckling passersby and had an altercation with an elderly couple.

Superior court judge Judith McConnell ruled on May 19 that the March 12 temporary restraining order was in effect until the June 10 hearing on a preliminary injunction. She did not rule on the issue of whether the restraining order was in effect between the case's removal to federal court on March 23 and her May 19 ruling. Had she ruled that it was not, Planned Parenthood would have been liable for the false arrest of Brock on May 15. Between March 23 and May 19 pro-lifers continued to display the large aborted baby signs at Planned Parenthood.

On the morning of May 22, three pro-lifers picketed Planned Parenthood for an hour and a half. A police officer advised the picketers to be sure they did not block the sidewalk. After the first group left, nine young adults came to pray the rosary. The security guard stood close by, on the sidewalk, observing them closely for several minutes.

At a June 10 hearing at which McElroy and three defense attorneys were present, Judge Judith McConnell granted Planned Parenthood's request for a preliminary injunction which would enforce the same restrictions as the restraining order until the case is tried. McConnell modified Planned Parenthood's request to ban signs larger than eight and one-half inches by 10 inches within 500 yards of its clinic: she allowed signs larger than eight and one-half by ten inches if they display words only, within 100 yards of the clinic. However, she did give Planned Parenthood what defense attorney Vattuone believes is its primary motivation for the suit: a ban against the use of the large aborted baby pictures, because of their effectiveness in communicating the reality of abortion. At press time, defense attorney Katie Short, who represented defendant Troy Newman at the hearing, said it is unclear whether McConnell's ruling pertains to all pictures. However, said Short, "It was crystal clear that the only thing she was trying to ban was the gory pictures." She let stand the remaining 13 prohibitions and requirements sought by Planned Parenthood in the injunction, including a ban on picketing within 25 feet of any clinic entrance or exit, the requirement that picketers must stand in single file at least three feet apart, and restrictions on handing out literature. "We can't hand out literature to anyone going in or out," defendant Cheryl Sullenger explained. Several of the other provisions pertain to illegal activities in which the defendants deny having engaged.

At the hearing Short rebutted McElroy's assertion that people who see the large signs displayed on public sidewalks at Planned Parenthood constitute a captive audience and are thus forced to see them, and argued that Planned Parenthood furthermore had no standing to represent the general public. She said McConnell appeared to believe she possessed considerable latitude in restricting speech, based on content, whereas Short argued that the use of the large aborted baby signs constitutes political speech, which is clearly outside the range of constitutionally proscribable speech, a very narrowly defined category. "It seems to be a no-fault injunction: in other words, you don't need to have done anything wrong to be enjoined," she commented, in reference to McConnell's approach to the case. Moreover, said Short, McConnell did not address McElroy's failure to notify the defendants in advance of obtaining the March 12 restraining order, nor was she deterred by the several of the defendants' lack of notice of the June 10 hearing.

Short and defendants Sullenger and Newman, who also attended the hearing, separately commented that they were struck by McConnell's seeming willingness to overlook a lack of evidence for Planned Parenthood's charges. Newman put it succinctly: "McElroy's allegation was enough for her." Sullenger reported that Weilbacher, who was not one of the original named defendants, is now being sued as "Doe Number One," as a result of a San Diego police officer obtaining and providing his name to Planned Parenthood. His attorney, John Martin, maintains that he was improperly served, was not notified of the hearing, does not picket with the large aborted baby signs, and there is no evidence of him committing any of the offenses listed in the complaint. Therefore, Martin argued, Weilbacher should not be included in the case. McConnell disagreed, saying that on the videotapes provided to her, she had indeed spotted him holding a picture. "You know what it was?" Sullenger asked me rhetorically. "It was a little sign with a picture of Mother Teresa on it." Attorneys for the defendants plan to appeal McConnell's rulings.

Planned Parenthood's March 12 temporary restraining order affected pro-lifers other than those who picket with the large, aborted baby signs, Weilbacher's case being a clear illustration. The two young adults praying the rosary at Planned Parenthood on May 1 told me that, when six of them prayed at Planned Parenthood on April 17, the female security guard told them that their nine by 12 inch picture of the Virgin Mary and Baby Jesus exceeded the maximum sign size allowed at the clinic, and asked them to "put it away, which we did, right away." On the following Saturday, April 24, when twelve members of the same group came to the clinic, to avoid further problems with Planned Parenthood they attached signs the size of notebook paper, that said "pro-life," to their shirts. Later the group stopped wearing signs altogether, but has been able to continue praying a pro-life rosary and the Divine Mercy chaplet at Planned Parenthood on most Saturdays. Another pro-life group which prays the rosary and holds "Abortion Kills Children" signs in front of Planned Parenthood once a month stayed away from the clinic in April and May, but resumed, without signs, in June, without experiencing any problems. Yet another pro-life rosary group reported that one of the reasons it had stayed away from Planned Parenthood during April and May was fear of possible legal action by the clinic.

Sullenger believes there is another factor behind Planned Parenthood's newly aggressive response to pro-life picketing: "I think there is a big competition in San Diego for every abortion dollar, and I think there's really stiff competition between Family Planning Associates and Planned Parenthood.... FPA is losing business like crazy, I think, to Planned Parenthood, because of their aggressive marketing. When we are out in front of Planned Parenthood, they've testified that their business is down, so that means that the business may go to their competitor. Overall the number of abortions seems to be going down in America, and that means there's more competition for fewer abortion dollars. So I think this is nothing but pure greed."

Donations to support the legal defense of pro-life activists can be sent to Life Legal Defense Foundation, Box 2105, Napa, CA 94558, 707-224-6675 and the U.S. Justice Foundation, 2091 East Valley Parkway, Ste. 1-C, Escondido, CA 92027, 760-741-8086.