New York v. Griepp

991 F.3d 81

People of the State of NEW YORK by Letitia James, Attorney General of the State of New York, Plaintiff-Appellant—Cross-Appellee,

v.Kenneth GRIEPP, Ronald George, Patricia Musco, Ranville Thomas, Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, Deborah M. Ryan, Angela Braxton, Jasmine Lalande, Prisca Joseph, Scott Fitchett, Jr., Defendants-Appellees—Cross-Appellants.¹

Docket Nos. 18-2454-cv

18-2623-cv

18-2627-cv

18-2630-cv

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: September 26, 2019

Decided: March 10, 2021

ESTER MURDUKHAYEVA, Assistant Solicitor General (Steven C. Wu, Deputy Solicitor General, on the brief), for Barbara D. Underwood, Solicitor General of the State of New York, for Letitia James, Attorney General of the State of New York, New York, NY, for Plaintiff-Appellant—Cross-Appellee.

MARTIN A. CANNON, Thomas More Society, Crescent, IA, for Defendants-Appellees—Cross-Appellants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas, Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, Deborah M. Ryan, Prisca Joseph.

RICHARD THOMPSON (Kate Oliveri, on the brief), Thomas More Law Center, Ann Arbor, MI, for Defendants-Appellees—Cross-Appellants Angela Braxton, Jasmine LaLande.

Horatio G. Mihet and Roger K. Gannam, Liberty Counsel, Orlando, FL, for Defendant-Appellee—Cross-Appellant Scott Fitchett, Jr.

Richard Dearing, Aaron Bloom, Eva Jerome, Assistant Corporation Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, amicus curiae in support of Plaintiffs-Appellants—Cross-Appellees People of the State of New York.

Erin Beth Harrist, Arthur Eisenberg, New York Civil Liberties Union, New York, NY, amicus curiae in support of Plaintiffs-Appellants—Cross-Appellees People of the State of New York.

Before: LIVINGSTON, Chief Judge, CALABRESI, and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Courts face unique difficulties when conflicting constitutional rights are at stake. The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.

Helpfully, decisions of the legislature sometimes guide us in conducting this delicate balancing task. With respect to protests outside reproductive health clinics, Congress, the State of New York, and New York City have enacted laws that delineate the line between appropriate protest activities and those that infringe improperly on the right of those attempting to access the clinic. This case requires us to define the scope of the federal Freedom of Access to Clinic Entrances ("FACE") Act and its state and local counterparts.

Every Saturday morning in Queens, New York, anti-abortion groups have protested outside Choices Medical Center, a reproductive health care facility offering a myriad of reproductive health services, including abortions. The protestors contend that their efforts walk up to, but do not cross, the legal boundary. These protestors employ tactics like "do[ing] the slow walk in front of the clients so [other protestors] can talk to [those patients]," because it "gives [them] a little more time to plead for the baby's life," App'x at 1860; "tag teaming" patients so that, even after a patient has asked the protestor to leave her alone, another protestor will approach the patient, App'x at 1750; or using signs as a "barrier" by the clinic entrance on a city sidewalk, App'x at 1881.

After a yearlong investigation into the protestor activity outside Choices, the New York Office of the Attorney General ("OAG") brought suit and sought a preliminary injunction against certain protestors, including Defendants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas, Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, Deborah Ryan, Prisca Joseph, Angela Braxton, Jasmine LaLande, and Scott Fitchett, Jr. (collectively "Defendants") relating to their protest activities in violation of the federal Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248(a)(1), (c)(3)(A) ; the New York Clinic Access Act ("NYSCAA"), N.Y. Penal Law § 240.70(1)(a)-(b) ; and the New York City Clinic Access Act ("the City Act"), N.Y.C. Admin. Code §§ 10-1003(a)(1) - (4), 10-1004.

In its denial of the preliminary injunction, which the OAG appeals before us today, the district court concluded that Defendants’ conduct was too minor to constitute violations of FACE and its state and local analogs. It characterized the challenged protestor activity as merely "incidental contact," causing only "slight[ ]" deviations or delays, or otherwise being too negligible to interfere with patients’ rights. New York by Underwood v. Griepp , No. 17-CV-3706, 2018 WL 3518527, at *33, *44 (E.D.N.Y. July 20, 2018).

We cannot completely agree with the district court's conclusions. FACE is by its own terms broad. Writing in restrictions to narrow its reach, in contravention of its text and purpose, would effectively eviscerate the statute. Because we determine that the district court made certain improper evidentiary and credibility rulings, relied on clearly erroneous factual findings in assessing the OAG's physical obstruction claims, erred in its interpretation of the FACE statute and its state and local analogs, and abused its discretion in finding no irreparable harm, we vacate and remand in part.² We affirm as to the remainder.

Defendants also cross-appeal from the same order denying the preliminary injunction. Defendants challenge the following conclusions of the district court: (1) Defendant Brian George violated FACE, NYSCAA, and the City Act by physically obstructing patients; (2) the statutes do not violate the First Amendment; and (3) the OAG has parens patriae standing to sue under the City Act. We affirm the district court's conclusions on these issues.

BACKGROUND

I. Choices Medical Center

Choices Medical Center ("Choices") is an ambulatory outpatient medical center that provides extensive reproductive health services in Jamaica, Queens, New York. Choices provides medical services such as abortions, prenatal care, colposcopy, and obstetrics and gynecological services, among others. The main entrance is located on 147th Place between Jamaica and Archer Avenues, but there is also an employee entrance on 148th Street between Jamaica and Archer Avenues and a patient exit on Jamaica Avenue between 147th Place and 148th Street. Most patients arrive by foot and enter through the main entrance. Other patients arrive by cars, which drop them off on 147th Place next to the main entrance.

Every Saturday morning since the clinic first opened in 2012, people have protested outside the main entrance. While some protestors are independent individuals, most are affiliated with organized groups such as Church at the Rock or Grace Baptist Church.³ Protestors from Church at the Rock are typically assigned roles including preaching, sidewalk counseling, handing out literature, or holding large signs.

As a response to the protest activity, Choices started a program by which volunteer "escorts" greet and walk patients down the sidewalk to the main entrance when protestors are present. These escorts arrive on Saturday mornings and are present from the clinic's opening at 7:00 am until the protestors’ departure at approximately 10:00 am. To assist patients walking toward the entrance and past the protestors, the escorts at times use their bodies to shield the protestors, either by standing at the sides of patients or by walking in front of or behind patients. Escorts also sometimes hold out their arms to maintain distance between patients and protestors or stand in front of protestors’ signs to block their visibility. On an average Saturday morning, there are two to three dozen protestors and escorts.

II. The Attorney General's Investigation

In June 2016, the OAG began a year-long investigation into the protest activity outside Choices. As part of its investigation, it installed a high-mounted surveillance camera to capture the 147th Place entrance, and it also used undercover investigators with hidden cameras to pose as patients and their companions. Two escort leaders,⁴ Pearl Brady and Theresa White, aided the investigation by wearing hidden cameras on a few occasions.

III. Procedural History

A. Preliminary Injunction Hearing

On June 20, 2017, the OAG, on behalf of the State of New York as parens patriae, sued thirteen protestors for purported violations of FACE, 18 U.S.C. § 248(a)(1), (c)(3)(A) ; the NYSCAA, N.Y. Penal Law § 240.70(1)(a)-(b) ; and the City Act, N.Y.C. Admin. Code §§ 10-1003(a)(1) - (4), 10-1004. In broad strokes, the OAG alleged that Defendants violated these laws by crowding patients and escorts with their bodies and signs, leaning into cars to provide literature or counseling, making threatening statements, and attempting to engage patients and escorts despite clear rebuffs. The OAG also filed a motion for a preliminary injunction the same day it filed its complaint. Shortly thereafter, Defendants filed motions to dismiss and opposed the motion for a preliminary injunction.

The parties agreed to expedite discovery and proceed to a preliminary injunction hearing that, though trial-like, would not fully resolve the case. The hearing spanned fourteen days. The district court held oral argument on the motion approximately two and one-half months later. At the hearing, the parties introduced three types of evidence: documentary evidence, video and photographic evidence, and oral testimony from seven plaintiff's witnesses and ten defendants’ witnesses.

The documentary evidence consisted of two types of records kept by the clinic: Clinic Escort Recaps ("Recaps") and Protestor Experience Questionnaires ("PEQs"). The Recaps provide an overview of the day's events and any...