United States v. Gregg

Alvarado; Joseph O’Keefe; Eva rine nominal 1997e(e) claims for that his but Roach; O’Hara; Joseph H. Robert provision. aré not barred damages Soderna; Rudnick; James James that Allah’s Furthermore, to the extent Byron Wagi; Sweatt; Elizabeth premised damages punitive for claims Amy Blake; Adams; Boisson Kevin to free right of his violation alleged on the Dino; Elliot; neault; Stephen Baldo than on rather religion exercise Mary Foley; Sheryl Fitzpatrick; Den aas suffered mental distress emotional Raymond Green; George Lynch; nis violation, also are those claims result Mulrenan; Ralph Tra Micco; Alexis affirm in we will Accordingly, not barred. Trott; phagen; Kimiko Trott James the order of part and reverse part on judgment granting District Court Ennis, Sweatt; Kidd; Elizabeth James of Al-Hafeez Rose in favor

pleadings Micco; Wagi; Raymond William proceed- further will remand and we Blake; Soderna; Raiser; Kevin opinion.6 with this James inconsistent not ings Dino; Appellants in No. 99- should remand, also Baldo the District Court On the 26 defendants 5124. address the status were but who joinder it authorized

whose America, of dismissal. in its order States overlooked United v. Ruby McDaniel; Gregg; Luis

Joseph R. Pagnanelli; Menchaca; Francis Wil Henry; Raiser; A. Rose Michael liam Matheson; Kidd; Katharine Arnold America, STATES UNITED Joseph Alvarado; O’Keefe; Eva 99-5079, Appellant No. Roach; O’Hara; Joseph H. Robert v. Soderna; Rudnick; James James McDaniel; Ruby GREGG; C. Joseph R. Byron Wagi; Sweatt; Elizabeth Pagnanel Menchaca; Francis S. Luis Amy Blake; Boisson Adams; Kevin Raiser; Michael li; Charles William Elliot; Dino; Stephen neault; Baldo Matheson; Kidd; Henry; Arnold Rose Foley; Mary Sheryl Fitzpatrick; Den Alvarado; O’Keefe; Eva Katharine Raymond George Lynch; Green; nis Roach; Joseph O’Hara; Joseph F. Mulrenan; Ralph Tra Micco; Alexis Soderna; Rudnick; James Robert Trott; Kimiko Trott phagen; James By Wagi; Sweatt; Elizabeth James Blake; Amy Adams; Bois Kevin ron Appellant Pagnanelli, Francis S. Dino; Stephen sonneault; C. Baldo 99-5205. No. Mary Fo Elliot; Sheryl Fitzpatrick; Lynch; 99-5205. Green; George ley; Nos. 99-5124 Dennis Mulrenan; Micco; Alexis Raymond Appeals, Court United States Trott; Ki Ralph Traphagen; James Third Circuit. Trott. miko April 2000. Argued America, States of United v. Sept. Filed McDaniel; Gregg; Ruby Luis Joseph R. Pagnanelli;

Menchaca; Francis S. Henry; Raiser; Michael A. William Matheson; Kidd; Katha- Arnold Rose claims, us. they are not before course, of Allah’s the merits express no view on we 6. Of General, Lee, Attorney Assistant Acting Levin, (Argued), Flynn, K. Jennifer David Justice, Rights Divi- Civil Department DC, sion, Appel- Washington, Counsel lants/Cross-Appellees. (Argued), Morris- Gilhooly, J.

Edward NJ, town, Appellee/Cross-Ap- for Counsel Pagnanelli. Francis S. pellant Chester, NJ, Pelletier, Coun- Michael C. Alvarado. Appellee for Eva sel Morristown, NJ, Passamano, Russell J. Appellees/Cross-Appellants for Counsel Kidd, Raiser, Rose James Soder- William Sweatt, Baldo na, Wagi, Elizabeth James Dino, Raymond Micco. Campbell, Berkeley Desmond

Donald NJ, Joseph Appellee Counsel Heights, for O’Hara. Herriot, Cotí, Sugrue, &

Ralph Cotí NY, York, Appellee for Jo- Counsel New H. Roach. seph Mittendorf, & Cagney, Lane William C. Iselin, NJ, Appellee Byron for Counsel Adams. Finne- Morgan, Cummings,

Michael O. NY, York, Lee, Pine, New Foley & gan, Blake. Appellee for Kevin Counsel Rose, Burke, En- Cooper, M. & Peter NJ, Appellee Summit, for Counsel glish, George Lynch. BECKER, Judge, WEIS

Before: Chief OAKES,* Judges. Circuit THE COURT OPINION OF OAKES, Judge. Circuit appeals case, the United States In this for the District Court decision Lifland, (John C. Jersey of New District jointly and the defendants Judge) that individually liable, than rather severally $5,000 “per liable, statutory damages Attor- Hochberg, States Faith S. United of Access Freedom Buchanan, Unit- Assistant violation” R. ney, Colette (“FACE” or “the Act Newark, NJ, Entrances Bill Lann Clinic Attorney, ed States * Oakes, designation. Cir- States L. United James Honorable Circuit, sitting by Judge Second for the cuit

Act”), (2000). U.S.C. Several dants and their employees, agents, and defendants filed cross appeals, arguing others acting in them, concert with that FACE is a violation of Congress’s blocking and impeding MMA, access to authority under the U.S. Constitution’s intimidating or attempting intimidate or Commerce Clause the First Amend- interfere persons seeking access to ment. We conclude that damages MMA, and entering or being on MMA FACE are properly awarded jointly premises. severally among defendants and that After the preliminary injunction was

FACE is constitutional. Accordingly, we granted, parties informed the district affirm the district court. court they disagreed over proper interpretation of the civil remedies avail-

BACKGROUND able under FACE. At the district court’s 18, April 1997, On States, request, the United parties the submitted briefs ad- through the United States Attorney dressed to Gen- the proper interpretation of eral, filed complaint injunctive for relief statutory damages under FACE. On June statutory and 18, damages against thirty 1998, de- after considering parties’ the 1 who, fendants the Attorney pleadings, General al- the district court issued a mem- leged, an ongoing were threat to the Met- orandum wherein, rejecting the Attorney ropolitan Medical (“MMA”), Associates a General’s argument that statutory dam- reproductive health ages clinic in Englewood, should be assessed on each defendant Jersey, New its employees violation, and persons per it concluded $5,000 that the seeking reproductive health statutory damages services were to be per assessed MMA. Specifically, the Attorney violation General and that all defendants par- who alleged that each ticipated defendant participated in in each violation would be held one, two, protests or three jointly that obstructed and severally $5,000. liable for access to inMMA violation of FACE. In On 11,1998, December the district court prayer the for Complaint, relief the granted the Attorney General’s motion for Attorney General pursue elected to statu- summary judgment and issued a Memo- tory $5,000 damages per defendant in randum and Order Entering Final Judg- lieu of proving actual damages to MMA. ment. See United States v. Gregg, 32 The district court held an evidentiary F.Supp.2d (D.N.J.1998). 151 The district hearing on July 1997, on the Attor- court found that the defendants violated ney General’s motion for a preliminary they when conducted the three injunction. The evidence at the hearing blockades. See id. 153-58. The district demonstrated that five of the named de- court determined that Congress intended fendants blocked access to MMA on Au- statutory damages $5,000 to be assessed gust 7, 1996, twelve of the named defen- per violation and against all responsible dants blocked access MMA on January persons severally. See id. at 160-61. Ac- 18, 1997, and of the nineteen named defen- cordingly, the defendants were held jointly dants blocked access to on MMA March and severally $5,000 liable for in statutory 15, 1997. on Accordingly, December damages for each violation in they which 1997, the district enjoined court defen- participated. See id. at 161 (holding five 1. The defendants complaint named in the Sheryl Fitzpatrick, Mary Foley, Green, Dennis Joseph R. Gregg, McDaniel, Ruby C. George Luis Lynch, Micco, Raymond Alexis Mulre- Menchaca, Pagnanelli, Francis nan, S. William Ralph Traphagen, Trott, James and Ki- Raiser, Charles Henry, Kidd, Michael Rose miko Trott. The Attorney General dismissed the charges against Mary Foley and her name Matheson, Arnold O'Keefe, Katharine Eva Al- varado, Roach, Joseph Rudnick, Robert has been removed from the caption. They Soderna, James Sweatt, James Elizabeth will be referred to in opinion collectively Wagi, Byron Adams, Blake, Kevin Amy Bois- as "the unless defendants” it is necessary to sonneault, Dino, Baldo Elliot, Stephen C. provide names.

257 plain mean a law’s To determine for severally liable and jointly defendants of the language begin we ing, blockade, twelve defendants 7 August Ron Pair v. See United States statute. January severally bable jointly 235, 241, Inc., 109 Enterprises, 489 U.S. blockade, defendants eighteen (1989); New L.Ed.2d liable for March severaby jointly Entity v. Rock Asset Partners blockade). Preferred (3d Advancements, 101 F.3d timely appealed Attorney General Services, Cir.1996); Inc. Fe Medical Santa eight decision court’s the district (3d (In F.3d Segal), re Segal v. At- appealed. The cross the defendants2 Cir.1995). of the language If the statute portion appeals torney General sufficient intent with expresses Congress’s imposed the court’s decision district there and the inquiry ends precision, severally. damages jointly statutory to its terms. according statute Is enforced dispute district do not Defendants Inc., 489 U.S. Enterprises, Pair Ron they violated FACE. findings that court’s the statuto 1026. Where At- Rather, contend Defendants express Congress’s does 'not ry language not, under does torney General traditionaby unequivocally, court intent statutory dam- elect authority to have history and the refers to the damages. actual proof ages lieu en which the was atmosphere in statute un- is an addition, that FACE they argue the con attempt to in determine acted com- Congress’s of exercise constitutional Rock, 101 purpose. See New gressional it violates defen- power and merce of plain meaning Once the F.3d at 1498. First under the guaranteed rights dants’ determined, it is conclusive the statute is of the Constitution. Amendment in the literal rare “except in cases which a re produce a will application of statute DISCUSSION with the inten demonstrably at odds sult of court’s award the review district We (quoting Id. drafters.” tions of its Griffin Figuer novo. See summary judgment de 564, Contractors, Inc., 458 U.S. v. Oceanic (3d 435, Blackburn, F.3d 439 oa v. (1982)). 3245, 973 571, 102 73 L.Ed.2d . Cir.2000) 248(a) FACE, in relevant of Section I. provides: part, statutory resolving how The task of (a) Prohibited Activities.—Whoever— under FACE awarded are to be penalties (1) of force or or threat by force interpretation statutory of question ais obstruction, intentionally in- physical plain the mean by discerning begins which intimidates, or with or interferes jures, statutory penalty provision. of FACE’S ing intimidate, inter- or injure, attempts to is to this issue Congress’s If intent per- person any because fere statutory canons of to other plain, referral been, to intimi- or in order is has son or unnecessary. See Resolu construction person or any or other person date such 62, Nemberg, 3 F.3d 64 Corp. v. Trust tion from, obtaining or persons any of class U.S.A., (3d Nat Cir.1993); Inc. v. Chevron services health reproductive providing Council, Inc., 467 Resources ural Defense 2778, 81 837, (“If (1984) intent of Con the 694 L.Ed.2d civil remedies subject to the ... the mat shall be clear, the end of that is gress is (c) in provided subsection

ter[.]”). 18, February appeal on Sweatt, separate cross Kidd, Wagi, filed a Elizabeth James 2. Rose Raiser, Micco, consolidated arguments So- were William James 1999. Their Raymond derna, appeal a cross appellate Blake filed brief. and Keven one Pagnanelli S. February 1999. Francis on 258 248(a)(2000). § FACE further severally among par-

18 U.S.C. defendants who prohibits damage ticipated intentional or de- Gregg, the blockade. 32 facility it provides 160; of a because F.Supp.2d struction see also Milwaukee Any See id. Services, services. Brock, Women’s Medical Inc. v. person aggrieved by foregoing actions (E.D.Wis.1998) F.Supp.2d 2 may bring a civil action for relief. (awarding statutory damages per violation 248(a)(1)(A)(2000). § U.S.C. defendant); per rather than Greenhut v. Hand, (D.N.J.1998) F.Supp. person In under a action (same); prohibited conduct Planned Parenthood aggrieved Southeast- of Act, Pennsylvania, Walton, “temporary, preliminary obtain ern Inc. v. (E.D.Penn. permanent injunctive com- relief and WL 88373 at *1-2 Feb. 1998) (same). pensatory punitive damages.” (2000). 248(c)(1)(B) addition, § In U.S.C. In compensatory authorizing statutory plaintiff in a civil action to allows $5,000 of damages lieu actual dam- elect, damages, “in of actual an award lieu ages, Congress phrase “per uses the viola- in the statutory damages amount of 248(c)(1)(B). § tion.” 18 U.S.C. This is in $5,000 per violation.” 18 U.S.C. sharp contrast language to the used 248(c)(1)(B)(2000). § permits Act provision permitting courts to assess sub- Attorney attorneys General and state penalties stantial pub- civil vindicate general bring civil actions for same lic interest brought by attorneys cases if they person relief believe or group 248(c)(2)(B). general. § See 18 U.S.C. persons aggrieved by has been viola- 248(c)(2)(B), general an attorney can re- tions Act. See 18 U.S.C. quest $25,000 penalties civil up (3) (2000); 248(c)(2), §§ H.R.Rep. No. 103- “against respondent.” each Id. The lan- (1993), reprinted in 1994 248(c)(2)(B) § guage of illustrates 699, U.S.C.C.A.N. 710. In civil actions Congress knew to explicitly how instruct a brought by attorney general, court per to assess damages defendant court, public The to inter- vindicate per rather than violation. The absence of est, civil penalty also assess a analogous “per respondent” language in against respondent- each 248(c)(1)(B) § and the use instead of the (i) $10,000 in an exceeding amount not phrase “per violation” indicates that Con- for a physical nonviolent obstruction and gress carefully considered the issue and $15,000 violations; for other first and decided that compensatory statutory dam- (ii) $15,000 exceeding an amount not ages imposed per violation, will be a man- for nonviolent physical obstruction and ner that' differs from the civil penalties $25,000 subsequent other viola- imposed to public vindicate the interest. tion. (2000). 248(c)(2)(B) § 18 U.S.C. disagree We with Attorney General 248(a) Attorney § The the use of argues General “whoever” the district incorrectly compensatory court awarded stat means that statutory penal- utory per damages presumably violation to ties are to be imposed individually. Sec- 248(a) be shared by the defendants with involved tion defines the liability substantive each blockade and contends that FACE how, under FACE. It does not address goals require statutory Act, and its damages to under the compensatory damages civil $5,000 be per awarded defendant. We to be use singu- awarded. The agree with the district court that “di provision lar in that does thus not over- chotomy expression” between the civil specific “per come the violation” language remedy provisions of FACE demonstrates in the relevant remedy provision of the Congress’s Thus, statutory damages intent that Act. statutory language indicates imposed per be violation and jointly that Congress compensatory intended that agree the future. We with the in FACE in imposed damages, like those statutory violation, pri- that deterrence is a pre- Attorney General case, per are awarded severally penalties mary goal of substantial federal jointly sumably to be shared is participated goal who clinic blockaders. This against defendants among the of criminal availability the violation. well served sanctions, pen- punitive damages, and civil is consistent interpretation This (c). 248(b), §§ Con- alties. See U.S.C. history and the FACE’S however, explained, that the statuto- gress violence anti-abortion atmosphere of 248(c)(1)(B) ry penalties described was was enacted. which FACE damages.” “in lieu of actual are available backdrop of esca against in 1994 enacted Report, they According to the Senate reproduc directed toward lating violence the often difficult were included to ease clinics, employees, their tive loss in a case where proving actual task Re the House and Senate patients. Both clinic tactics close a tem- anti-abortionists’ accounts of set forth detailed ports ac- person’s interfere with a porarily or by anti campaign waged national virulent health services. cess H.R.Rep. No. 103- abortion activists. statutory dam- report senate stated U.S.C.C.A.N., The evidence at 699. “[bjecause of the ex- included ages were that “this Congress demonstrated before ac- proving difficulties of pense and other death, has lead campaign of violence (for a clinic’s example, lost damages tual harassment, fear, thousands of injury, income).” at Ac- S.Rep. No. 103-117 H.R.Rep. nation.” all across the arrests statutory penalties elected cordingly, the U.S.C.C.A.N., 103-306, at 703. at No. in this case were Attorney General findings forth that state also set compensating goal included with the inade proved authorities had and local prohibited victims of the misconduct unwilling, to curb and sometimes quate, noted As the district court by FACE. 103-117, S.Rep. No. the violence. See effectively in- just can person “[o]ne (1993); H.R.Rep. No. 17-18 with, can a or intimidate as jure, interfere (“state U.S.C.C.A.N., depending on the circumstances.” group, have failed to authorities local enforcement Damages at 160. Gregg, F.Supp.2d na effectively systematic and address bearing on how thus have no compensate being waged tionwide assault damage. Be- individuals caused the many pa providers care against health in- history of FACE legislative the cause tients.”). enacted Consequently, Congress statutory purpose of the dicates the that to federal remedies FACE with substantial that compensate, it follows damages is to blockades, violence prevent the “use compensatory that Congress intended threatening tactics other forceful per viola- awarded statutory damages be and health care medical facilities against par- many people of how regardless tion provide abortion-related personnel who in the misconduct. ticipated 103-117, at 2. In S.Rep. No. services....” sum, important goals: two FACE serves argues Attorney Finally, the General First, compensate help remedies federal among de- liability joint and several care facilities for the and health individuals engage individuals to encourages fendants and, second, caused blockades harm small, blockades. rather than large, from re they protesters to deter serve liability, the Attor- joint and several With violating the law. peatedly contends, damages total ney General same, remains the “per violation” that Con- award argues Attorney General law, violate the persons more who damages yet to be statutory gress intended defendant the amount each punish- the smaller individual so per assessed to en- tending pay, perversely thus of must imposed with the result ment would be defen- discourage, courage, rather than violating deterring defendants organize dants to using greater, blockades gress’s use of “per violation” language in smaller, groups 248(c)(1)(B) rather than people. § opposed as “per re- spondent” 248(c)(2)(B). phrase §in Fur- We are not convinced that awarding thermore, because made statuto- statutory compensatory penalties per vio- ry penalties available principally to ease per lation rather than defendant will cause plaintiffs burden of proving actual strategically defendants to recruit more damages penalties and other to deter the defendants for each violation. Because of prohibited misconduct by FACE are avail- variety wide of remedies available un- able, $5,000 statutory damages are FACE, der clinic will blockaders not know per awarded violation jointly and sev- penalties they face for their mis- erally among the participating defendants. conduct and plan be able accordingly. They will not know the suit before is filed II. whether an Attorney private General or plaintiff opt will for statutory damages in argue Defendants the Attor lieu of damages. actual ney See 18 General may U.S.C. not elect statutory dam 248(c)(1)(B). § They will also not ages know if lieu of damages. actual Their ar they subjects will be made gument of a criminal misapprehends the statute and is prosecution and criminal face fines. See belied Act’s history. Un 248(b). Furthermore, § 18 U.S.C. in the der the Attorney General of the attorney case where an general brings a United States and a state attorney general action, civil he or she option may has the commence a civil against action an requesting that the court assess a individual civil or individuals who engage in the penalty against each defendant prohibited conduct by the Act. See 18 $25,000 great amount as 248(c)(2). in an appropri- § U.S.C. provides The Act ate 248(c)(2)(B). § case. See 18 U.S.C. in an action initiated an attorney gener Moreover, joint al, liability and several “the may does court award appropriate re not solely contemplate lief, group of liable including temporary, preliminary or sharing defendants permanent the award injunctive relief, among and compensa them. A liability joint tory several damages when persons aggrieved as de “the creditor sue one or more of the (1)(B).” scribed in paragraph 18 U.S.C. parties to liability 248(c)(2)(B) such separately, added). § or all of (emphasis Defen them together, at his option.” [or her] dants phrase contend that the “compensa (5th Black’s ed.1979). Law Dictionary 751 tory damages” 248(c)(2)(B) § as used in It is thus highly unlikely that a defendant only refers to actual damages and not to or group of plan defendants would a clinic statutory damages. However, blockade or 248(c)(1)(B) § other violation of the Act in defines compensatory dam- light of the penalty provisions ages under the as actual statutory damages. Act. Because of varying ways penalties 248(c)(1)(B). Thus, U.S.C. by using under the Act may against be assessed the term a “compensatory damages” in group of defendants in 248(c)(2)(B), § involved one viola- Congress plainly meant tion, we are not convinced that the incorporate deter- all of the text relevant to com- (cid:127) rent value of compromised FACE is pensatory damages set out in awarding the compensatory 248(c)(1)(B). § statutory Therefore, dam- the phrase ages jointly and severally as the plain- Act “compensatory damages” as used ly provides they 248(c)(2)(B) § should be. authorizes the attorney gen- eral to elect an award of statutory dam- sum, In we that Congress conclude in- ages. tended compensatory FACE’S statutory damages be per Furthermore, awarded violation and history jointly and severally among defendants. demonstrates that Congress intended that We base our primarily conclusion on Con- statutory damages be awarded in a civil

261 1370, Soderna, 82 F.3d v. United States attorney general. initiated action (7th denied, Cir.), cert. 519 U.S. au- Act 1373-74 “[t]he House confirmed 507, 1006, 136 L.Ed.2d 398 117 S.Ct. Attorney General U.S. thorizes Dinwiddie, (1996); v. 76 bring civil United States Attorneys General State (8th Cir.), denied, 913, cert. aggrieved F.3d 919-21 behalf of action on causes of 613, 1043, 117 136 L.Ed.2d 519 U.S. S.Ct. available the same persons for relief Wilson, (1996); v. 73 however, attorney United States actions; fees for 538 private (7th Cir.1995), 675, cert. de awarded 679-88 not be F.3d may expert witnesses 47, nied, 806, 103- 117 S.Ct. 136 H.R.Rep. No. 519 U.S. States.” to the United Reno, (1996); v. 55 U.S.C.C.A.N., 12 (emphasis 700 L.Ed.2d 106, 3, at Cheffer Cir.1995). (11th 1517, To added). 1519-22 relief available F.3d Because the decisions damages aligns this statutory day, Circuit includes private actions appeals and holds attorney courts of that an of its sister intended Congress of Con proper a is a exercise same relief as that FACE to the be entitled general power. Clause gress’s the defendants’ Commerce reject we private party, may Attorney General position Lopez, 514 States v. United this case. statutory damages in not elect 1624, 549, 558-59, L.Ed.2d 131 (1995), aptly decision described 626 a III. the Commerce changing Court as Clause. A. Commerce States v. landscape, see United Clause whether question turn to the nowWe 28, (3d Cir.1997), Parker, 29 108 F.3d power under Congress’s falls within FACE three broad cat Supreme identified Court I, § States Consti 8 of the United Article Congress may reg activity egories empowers The Commerce-Clause tution. power. Con under its commerce ulate ... Commerce “regulate 1) use of the “regulate the gress may: Const., the several states.” among commerce,” Lopez, interstate channels of a I, 8, FACE is cl. 3. Whether Art. (citations 558, 1624 514 U.S. S.Ct. commerce Congress’s proper exercise 2) omitted); the in protect “regulate publish much discussed power has been commerce, or of interstate strumentalities Courts of States opinions ed United commerce things persons Indeed, the last this is one of Appeals. only come though the threat even to address appellate tribunals federal (citations Id. activity,” intrastate all, most, if not considering After issue. 3) omitted); those activities “regulate by the defen presented arguments to interstate relation having a substantial case, held courts in this these dants i.e., activities that ... those commerce the Commerce is valid commerce.” affect interstate substantially Hart, 212 v. United States Clause. (citations 558-559, 115 S.Ct. Id. (8th Cir.2000); 1067, United F.3d omitted). (2d Weslin, v. 156 F.3d States judicial branch is the denied, Although Cir.1998), 525 U.S. cert. a constitutionality of (1999); arbiter final 142 L.Ed.2d S.Ct. Hoff (4th statute, de congressional courts review Hunt, 582-88 126 F.3d man v. power to enact that it denied, termination had Cir.1997), 523 U.S. cert. with sub legislation (1998); piece of particular 1838, 140 Unit L.Ed.2d 1089 Parker, 108 F.3d See 667, deference. Bird, 672-82 stantial 124 F.3d v. ed States F.3d 30; Bishop, 66 1006, States v. denied, United (5th Cir.1997), at 523 U.S. cert. (3d Cir.1995). job not our 569, It is (1998); 576-77 1189, 140 L.Ed.2d 320 118 S.Ct. judgment the “second-guess Reno, 1415-18 to v. 101 F.3d Terry and violence denied, Congress” that blockades (D.C.Cir.1996), 520 U.S. of cert. can clinics reproductive health (1997); at 193 directed 138 L.Ed.2d 117 S.Ct. 262 regulated

be under the phrase, Commerce Clause economic activity.” -, Id. at rather, but, power to ensure Congress at 1751. In S.Ct. contrast to gender- had a rational basis for that conclusion. crime, motivated the activity regulated by Parker, 108 at 30 (quoting Bishop, F.3d physical FACE —the obstruction and de- 577). F.3d at hold that Lopez We reproductive of struction health clinics and precedent, and this Circuit’s FACE is a the intentional interference and intimi- proper Congress’s power exercise of to dation persons obtaining and providing regulate that, conduct intrastate the reproductive health activity services—is aggregate, has a substantial effect on in- with an effect that is economic in nature. terstate commerce.3 Reproductive health clinics are income- — generating businesses that employ physi- Morrison,

In United States v. cians and other staff provide services -, 1740, 1749-52, S.Ct. and goods patients. to their by Motivated (2000), L.Ed.2d the Supreme Court’s sentiment, anti-abortion the primary goal most communique recent on third Lopez’s of individuals groups engaged category provided the the regulation, Court prohibited misconduct by a framework to determine FACE is to whether a law tem- porarily regulates an activity permanently that has a interrupt op- substantial effect on erations of reproductive interstate commerce. The Court health facilities prevent identified four relevant considerations. individuals from accessing 1) These are: the economic nature of their 103-117, services. See S.Rep. No. at regulated activity, at-, 11; see id. H.R.Rep. 103-306, No. at 2) 1750; at jurisdictional element limit- U.S.C.C.A.N., at 706. found ing the reach the law to a discrete set of that the violent and obstructive acts direct- additionally activities that explicit has an ed at health facilities had connection with or on effect interstate caused millions of dollars of damage and commerce, at-, see id. forced close, clinics to caused serious and 3) 1750-51; at express congressional find- delays harmful in the provision of medical ings regarding upon the effects interstate services and intimidated a number of phy- commerce activity in question, see sicians from offering abortion services. at-, 4) id. 1751; S.Ct. at the See S.Rep. 103-117, 14; No. H.R.Rep. link between regulated activity No. U.S.C.C.A.N., at 704. commerce, interstate see id. 120 The effect of the proscribed conduct by S.Ct. at 1751. deter, FACE is to and in some eases to stop completely,

Morrison the commercial activity asks a court first to consider providing reproductive whether the regulates federal law intra- services. state We thus hold that although economic commercial activity. connection See -, id. economic or 120 S.Ct. at commercial activity plays central Supreme noted, role Court whether a law “In is valid under every case Clause, where we have Commerce sustained feder- we hold that eco- al regulation activity under Wickard’s nomic aggregation can be understood in broad principle, regulated activity was of an terms. Pursuant principle, unlike apparent activity commercial character.” prohibited VAWA, Id. Ac- the mis- cordingly, Morrison, Supreme regulated Court conduct although not invalidated remedy the civil provision of motivated concerns, has commercial the Violence Against is, Women Act effect which essence, at its economic. (“VAWA”), in part, gender-moti- Weslin, because (threats 156 F.3d at 296 vated crimes in any “are not sense of the violence that have the effect of deterring 3. Because we determine that prop- is a do Attorney argument not reach the General’s regulation er activity of intrastate that has a that FACE proper regulation is also a of in- commerce, substantial on effect we strumentalities in commerce. commercial activity properly regulated is question substantially affects interstate — clause); Hoffman, Morrison, under commerce 126 commerce.” at-, F.3d at (activity regulated by 120 S.Ct. at (quoting Lopez, 514 U.S. commercial, 563,115 1624). while not itself economic or “is Congress’s conclu- closely directly connected with an sion that activity eco- proscribed by FACE activity nomic ... therefore ... burdens we cannot interstate commerce is a conclu- that sion conclude FACE has derived nothing to do from months of legislative research, hearings, any with commerce or sort of economic debate. The Sen- ate enterprise”); Dinwiddie, Judiciary Committee and F.3d at 921 the House (“FACE Committee on prohibits Labor and interference with a com- Human Re- sources which mercial provision considered the activity receipt legislation —the before it services.”); law reproductive health became submitted Cheffer, extensive (“the reports on the necessity 55 F.3d at of FACE. Access Act See does Bird, Thus, 124 F.3d at 678. regulate Congress’s commercial activity, provision conclusion that services.”). is constitutional reproductive health judicial entitled to Parker, deference. See Morrison next instructs a court to con 108 F.3d at 29. sider jurisdictional the existence of a ele — Finally, in accordance with the fourth ment. 120 S.Ct. factor findings set forth jurisdictional at 1750-51. “A element ... in the House and Senate Committee Re- provision refers to a in a statute federal ports demonstrate that Congress had a requires government to establish rational upon basis which to conclude that specific facts justifying the exercise of fed the activities governed by FACE have a jurisdiction eral in connection with substantial effect on interstate commerce. individual application of the statute.” below, As set out in detail the findings Rodia, United States v. 194 F.3d show that a national (3d market for abortion- Cir.1999), denied, U.S. -, cert. related services exists in country (2000). 146 L.Ed.2d 958 reproductive health clinics directly FACE does contain explicit juris not engaged in interstate commerce. The dictional element establishing that the fed findings further demonstrate that a nation- eral cause of pursuance action is in al movement engaged in the pro- activities Congress’s power regulate to by scribed FACE has decreased the avail- commerce. Although such an element ability of abortion-related services would certainly support lend the conclu to national market and caused women seek- sion that FACE is tied to interstate com ing services and physicians providing merce, ser- we conclude that it was not neces vices to travel interstate. Accordingly, the sary for Congress explicitly to limit the activity proscribed by FACE has a sub- civil remedy provision in the of regu case stantial effect on the interstate commerce lating activity anti-abortion directed at re health services. productive are, clinics defi nition, directly engaged the business of legislative record establishes providing reproductive health services. a shortage of abortion-related services Bird, See 124 F.3d at 675 (reasoning that a exists this country that is exacerbated jurisdictional element is always “not a nec proscribed misconduct FACE. essary” method ensure S.Rep. 103-117, See No. Only does not its exceed commerce power). percent of counties the United States

Morrison directs that also the existence have an provider. abortion H.R.Rep. See of congressional findings 103-306, on burden U.S.C.C.A.N., of No. at 705. regulated activity on interstate com- percent This leaves 83 of counties without merce “may enable [a physician court] evaluate willing perform abortions. judgment activity that the S.Rep. No. at 17 & n. 29. The abortion ser- provide lines to in rural counties across state most severe

shortage is 103-117, at 31 & n. S.Rep. No. lo- vices. See health clinics are reproductive because to several areas, doctors traveled 46. “Some leav- metropolitan in primarily cated miles, states, per- of for hundreds some without in rural areas residing ing women no at clinics which had form abortions H.R.Rep. services. See these provider of example, Id. For physicians of their own.” U.S.C.C.A.N., 103-306, at 705. at No. only physician who in Dakota the South provider community, only one In a rural commutes from Minne- performs abortions area, geographical large in a usually exists in provides abortion services sota and target for anti- preferred it a making thus n Dakota, Minnesota, Montana, North of that elimination because abortionists at 16-17 n. of id. & parts Canada. See for abortion services eliminates provider 31. H.R.Rep. See No. in that area. women all U.S.C.C.A.N.,

103-306, at 705. at concluded also The Senate Committee engage clinics reproductive health that ser- of abortion-related shortage The Committee re- interstate commerce. market for in a national has resulted vices ported many pa- because these services pro- and other abortion service Clinics commerce engage in interstate tients must clearly are involved interstate viders to obtain re- from one state by traveling commerce, directly indirectly. both in another. productive health services medicine, sup- medical They purchase Congress evidence before Testimony and and other plies, surgical instruments numbers of women that substantial showed necessary products, often from medical of the services travel seek staff; States; they they employ other S.Rep. See reproductive health clinics. they space; gener- and lease office own 103-603, 31; 103-117, H.R.Rep. No. No. at short, In the Committee ate income. U.S.C.C.A.N., Many patients at 703. at they operate within the finds appoint- their travel 100 miles to over stream of interstate commerce. 103-117, at 17 n. S.Rep. & ments. See No. Doe, Sylvia who example, Thus, Ms. 103-117, 29. For one at Con- 5.Rep. No. that after learn- Congress testified before that a national market existed gress found permanent from a ing baby her suffered reproductive services because of health death, early cause its disability that would physicians provide of who shortage to a clinic Kansas Virginia traveled from services, reproduc- abortion-related procedure she capable performing of employ physicians tive health clinics often 103-306, at H.R.Rep. No. required. they outside the which state 7-8, U.S.C.C.A.N., at 704-05. Further- located, reproductive health clinics more, percent found that the Senate in interstate com- engaged themselves are Wichita, at a clinic patients treated merce. KS, S.Rep. No. of state. See are from out Finally, Congress determined that 103-117, determination Congress’s at 31. prohibited by conduct FACE inhibits are an services reproductive health delivery reproductive prohibits supported by interstate market was well care in the national market. services to the commit- testimony presented be- testimony Based on the and evidence (set- Bird, at tees. See 124 F.3d 668-79. it, clinic Congress fore found ting summary testimony). forth blockades, employees, against the threats activ- addition, the other violent and obstructive health clinics prohibited by single ities FACE have the employ physicians a national market of of abortion eliminating practice shortage phy- goal and staff. Because of the S.Rep. No. by closing in the abortion clinics. See willing perform sicians abortions 103-306, 11; violence, H.R.Rep. No. age employed of clinic doctors also, U.S.C.C.A.N., at 703. reproductive health clinics often travel it, rationally based on the evidence before reported mittee also that the violence “has determined that the national movement ... taken a providers, severe toll on intim- Report was succeeding. House stated idated ceasing some into to offer abortion “campaign services, that the of violence has led to and contributed to an already death, harassment, fear, injury, thou- acute shortage qualified of provid- abortion sands of all across the S.Rep. 103-117, arrests nation. It ers.” No. at Specifi- 14. resulted, intended, has in cally, access to the providers “some have succumbed to constitutionally protected right to choose the intimidation and threats.” Id. at 17. being denied to thousands of women na- At physicians least three in Dallas stopped tionwide against H.R.Rep. their will.” performing No. abortions in 1992 as a result of 103-306, 6, U.S.C.C.A.N., at at 703. The pressure by an anti-abortion group, two Report Senate states that clinic stopped blockades doctors in working 1993 after re- protests proscribed by and violent threats, the Act ceiving Gunn, death and since Dr. significant impact have “a only adverse not an abortion-provider Florida, in was shot patients on abortion providers, but at least eight more doctors have delivery also on the range stopped of wide of offering abortion services. See id. 103-117, S.Rep. health care services.” No. at 16-17. The House Committee also re- at 14. The effect of the violence ported forced that the shortage pro- of abortion close, “clinics to caused serious harm- partially viders is “at least attributable ful delays provision of medical ser- the violence and intimidation described in vices, pa- and increased health report. risks to Doctors understandably are field, tients.” Id. leaving the graduate^] and new have little desire to enter the field part even as Furthermore, enacted, when was FACE of a wider obstetrics/gynecology practice.” .damage millions of dollars of had been 103-306, H.R.Rep. U.S.C.C.A.N., No. at by caused to these facilities the clinic at 705. H.R.Rep. 103-306, blockades. See No. at 7, U.S.C.C.A.N., Moreover, at 704. The damage although under Lopez Con- reproductive caused to health care facili- gress may regulate activity intrastate ties temporary perma- eliminates on a aggregate has an effect on interstate reproductive commerce, nent basis the health care the anti-abortion it- movement provided by services that are the facilities. self whose conduct is regulated by FACE 9, U.S.C.C.A.N., Thus, See id. at at 706. scope. is national in Congress found that proscribed by activities FACE many inhibit organized activities were operation of entities that are directly directed across state lines. S.Rep. No. engaged 103-117, 26; interstate commerce. at H.R.Rep. & n. No. 103-306, 9, U.S.C.C.A.N., at at 706. The Congress explicitly noted the link be- reported House that a national strategy tween the abortion-related violence and emerged, has orchestrated anti-abor- the shortage physicians willing per- tion H.R.Rep. leaders. See No. form A physicians abortions. number of 9, U.S.C.C.A.N., at personnel and health care have been intim- found that regulated by the conduct idated threats violence made to beyond was the control of local and state them and their families and have stopped Thus, authorities. when it enacted services, providing their contributing thus Congress sought regulate truly na- to the shortage providers. The House problem. tional Committee found that rural clinics and sum, doctors preferred targets have become the due to the shortage acute for abortion foes because elimination of country abortion-related services in this single provider effectively eliminates resulting and the national market for abor- many service for services, women. See id. pro- tion-related the conduct U.S.C.C.A.N., at 705. The Senate Com- scribed FACE —the commission of private and other acts violence—has Court held that arson of a dwelling

blockades availability effect on the a substantial beyond was the reach of federal commerce interstate commerce of power to arson. criminalize See id. at The effect of the misconduct is services. -, determine, 1911. To physicians providing further to deter however, particular whether the arson of a temporarily permanently services and act, facility commerce-affecting is a clinics, reproductive health to shut down proper inquiry Court instructed that “[t]he forcing large thus -numbers of women to ... building is into the function of the to obtain services. travel across state lines itself, a and then determination of whether We, thus, agree testimony with the must that function affects interstate commerce.” that, before the Senate Here, Id. 1910. the the shift of demand for abortion services temporarily per- facilities blockaded and from those areas where clinic access is manently by closed the activities of anti- to those where it obstructed areas is not protestors abortion are businesses that represents the sort of interstate com- provide reproductive health services and beyond merce effect that is the effective directly involved in interstate com- any control of one state and is accord- Thus, functionality merce. under the test subject for ingly proper congressional a Jones, provided in blockading the and de- regulation under the Commerce Clause. reproductive clinics, struction of health Bird, (quoting 124 F.3d at 681 Senate just like the arson of a commercial build- (statement Hearings, at 97 of Professor ing, is a commerce-affecting activity and Tribe)).4 therefore properly regulated by Congress. regulates Our determination that FACE States, In Atlanta Motel v. United activity that a effect on has substantial 241, 250-58, 85 S.Ct. 13 L.Ed.2d by supported interstate commerce is Su (1964), Supreme the Ti- upheld Court preme young Court cases and old. Re tle II of the Rights Civil Act of 1964 aas States, cently, in Jones v. United proper regulation of activity an -, affects 1904, 1909, 146 L.Ed.2d 902 commerce. The (2000), holding premised was on Supreme the Court considered the conclusion that discrimination in res- owner-occupied whether arson taurants results in serving residence not for fewer custom- used commercial ers, purposes therefore qualified property adversely affecting as arson of inter- Here, used in interstate commerce within the state given commerce. Congress’s meaning of the federal arson statute. The specific findings that there exists a nation- respectfully register disagreement ply compared We our gender-motivated cannot be , activity regulated by the dissent. The dissent characterizes crime—the VAWA.Given services, the national connection between clinic blockades and market for abortion activity regulated by nexus between the commerce as the same attenuated FACE and interstate gender-moti- commerce is direct. “but-for-causal chain” between reject- vated crimes and interstate commerce dissent comparison also relies on a The ed the Court in Morrison. This view nar- rape, robbery, anti-abortion violence rowly regulated activity focuses on the trespass to conclude that anti-abortion vio- acknowledge FACE in the abstract and fails to problem lence is a properly regulated by local reproductive the national market for compari- the anti-abortion movement. This country. Congress services in this deter- acknowledge son fails to the motivation of the provider shortage mined that the abortion anti-abortion Although movement. the indi- the United States has resulted in a national vidual tactics of anti-abortion activists context, market for abortion services. In this have similar characteristics as common law crimes, abortion-related violence committed to close comparison ends there. As Con- reproductive a found, down health clinic or deter a gress the anti-abortion movement tar- accessing woman from its gets services has di- specifically a branch of commerce that Hence, rect effect on interstate commerce. Abortion- operates in a national market. anti- national, related specific violence context of a abortion violence is a rather than a local, reproductive national problem. market for services sim- is a argue first Defendants health services reproductive al market speech and restriction on services, view-point based shortage suffering protected under expressive conduct that is permanently temporarily effect not view Amendment. FACE is the First health clinics reproductive down shutting language based. The of the statute point staffed frequented and often that are history demonstrates has a direct lines crossing state people all individuals and governs that FACE under the commerce on interstate effect re provision groups obstruct in Atlanta Motel. presented reasoning religious productive health services activity sum, conclude we was to worship. purpose of FACE economic in nature. by FACE is regulated staff, clinics, patients their protect na- that due to the determine further We right harm when their from the suffered health ser- tional nature reproductive health provide and receive protests, the civil anti-abortion vices and ap The law was interfered with. services the boundaries is within penalty provision with the plies equally to all who interfere interstate power regulate Congress’s of services, of regardless of these provision that is Applying the deference commerce. for the conduct. See Wes the motivation Parker, see 108 findings, Congress’s 296-97; Dinwiddie, due lin, 76 F.3d at 156 that, further conclude at we F.3d 923; Network at also Pro-Choice F.3d see Lopez in Schenck, the statutes reviewed unlike v. 67 F.3d New York Western of 377, Morrison, (2d Cir.1995) (en banc), conduct that regulates FACE 386 aff'd. 855, 357, to conclude had a rational basis 137 Congress 117 S.Ct. part, 519 U.S. (1997) on inter- (holding and substantial effect 1 that because the has a direct L.Ed.2d therefore, hold, a injunction enjoining group purpose We of state commerce. prevent protestors was to scope congres- of of anti-abortion FACE falls within would prospective patients the harm that under the Commerce authority sional activities if the anti-abortionists’ suffer of activi- legitimate regulation a Clause as continued, neu injunction was content effect on ty having a substantial tral). Thus, pass did not FACE commerce. message disagreement with the because v. Accord Hill Colo of anti-abortionists. B. First Amendment. — 2480, rado, -, 147 120 S.Ct. U.S. (2000) law (holding Colorado L.Ed.2d 597 Finally, join we the decisions any person it unlawful for that makes does not appeals that FACE the courts facility’s health care 100 feet of a within expression protected speech and regulate approach within knowingly entrance Hart, 212 See First Amendment. by the person without of another eight feet Balint, 1071-73; States v. F.3d at United re is a content-neutral person’s consent (7th Cir.2000); Wes F.3d 934-36 201 striction). prohibits con Because FACE 296-98; lin, v. at United States 156 F.3d view-point of the regardless of Cir.1998),duct (7th Wilson, 662-64 154 F.3d on the actor, not does discriminate FACE denied, 1081, 119S.Ct. rt. 525 U.S. ce content. basis of (1999); 126 824, 142 Hoffman, L.Ed.2d 681 683-84; 588-89; Bird, Furthermore, FACE, at view- F.3d which is F.3d at 1418-22; Soderna, neutral, speech. conduct not Terry, governs 101 F.3d point 1418-19; Dinwiddle, 1374-77; F.3d at 101 F.3d at Terry, F.3d at See Hoff- 588; man, 55 F.3d 921-24; Cheffer, at 1521-22. Cheffer, 55 F.3d 126 F.3d terms, regulates thoroughly By very addressed its courts have These force,” “physical “force,” presented by “threat[s] Defendants arguments 248(a). Activi- 18 U.S.C. agreement in full obstruction.” and we are this case threaten, or obstruct reason, injure, we do not ties that For this their decisions. Amendment, First protected by the not analysis of these claims. expound on our ages or not such conduct communi- as an alternative to establishing whether Wilson, message. 154 F.3d at actual loss not change cates does the nature of n 663; Terry, compensation, 101 F.3d at 1418-19. Al- nor make it cumulative. though “expressive the conduct have However, I differ majority with the components,” not exempt this does it its conclusion that FACE survives consti- Weslin, prohibition. governmental scrutiny. tutional I am aware that seven 156 F.3d at 297. hold that We FACE is Appeals upheld Courts of have the consti- a valid restriction of conduct that has an tutionality of the Act. Some of deci- these component expressive the three- sions were made over arguing dissents O’Brien, part test United States v. that FACE could not be sustained under 367, 376-82, U.S. 88 S.Ct. analysis Lopez, United States v. (1968). L.Ed.2d 672 FACE serves the 131 L.Ed.2d 626 important governmental interest in ensur- (1995). Although Appeals the Courts of ing public safety right and woman’s opinions Lopez, considered they essentially services; seek this in- treated it as a narrow holding that did not suppression terest is unrelated to the affect measures such as FACE. speech; free narrowly FACE is tai- Weslin, Lopez application Doubts that had lored to meet these ends. See be 297-98; yond however, unique setting, its factual Terry, 156 F.3d at 101 F.3d at dissipated by expansive were holding 1419-20. FACE is therefore constitution- in United States v. Accordingly, al under O’Brien. we hold -, S.Ct. FACE is constitutional under L.Ed.2d 658 the (2000). There, the Court revisited First Amendment.5 the

question of Congress’ power the CONCLUSION Commerce legislate Clause to on matters traditionally prownce within the of the Therefore, compensa- we conclude Setting portions States. aside of the Vio tory statutory damages under FACE are Act, Against lence Women the Court wrote properly per violation and jointly awarded reject accordingly argument “[w]e the and severally among par- who defendants that Congress may regulate non-economic, Furthermore, ticipated in the violation. violent criminal conduct solely based on join we our sister circuits hold that conduct’s aggregate effect on inter FACE is a constitutional exercise of Con- state commerce. The Constitution re gress’s power commerce and does not vio- quires a distinction truly between what is late the First Amendment. The District national and what truly is local.” Id. at Court is affirmed. -, 120 S.Ct. at Continuing, 1754. said, Court “we can think of no better WEIS, Judge, Dissenting. Circuit example police power, of the which the damages Were I to reach the issue Founders denied the National Government case, agree majority’s I would with the States, reposed in the than sup conclusion that defendants are liable on a pression of violent crime and vindication of joint per incident, and several basis its victims.” Id. per not Obviously, individual. if gov- ernment sought damages, had actual it Together, Lopez and Morrison mandate would have been restricted to recovering limits to the federalization of local crime an proven trial, amount and that sum under the aegis of the Commerce Clause. n could be only recovered once. The fact like the Gun-Free School Zones that Congress provided statutory Act, dam- Act Against and the Violence Women case, argue Defendants plied also that because the At- unconstitutionally vague in this is torney General argument described the actions of lawful and overbroad. This is without protesters brief, FACE, appellate in its ap- merit. 3) example congressional is an intrusion Are there congressional findings that traditionally into law criminal within illuminate reasonable legislative judg- province of the States. These statutes are ment that activity substantially af- commerce, that “neither the nor their similar actors fects interstate although such character, a commercial conduct has an effect not is “visible the naked purposes design neither nor the eye”; and statute[s] has evident nex- commercial 4) Is a link there between activity Lopez,

us.” 514 U.S. at and a effect on substantial interstate J., 1624 (Kennedy, concurring). commerce that is not so attenuated that the federal-state balance destroyed? alone, Considered these statements — raise the likelihood that clearly FACE is Morrison, U.S. at-& n. Upon unconstitutional. more re- detailed 4; 120 S.Ct. at 1749-52 & n. Lopez, view, becomes per- it clear that Morrison 115 S.Ct. 1624. These no other mits conclusion. considerations will be examined turn. observes, majority As the here the Su- A. Activity is Not Commercial preme Court has identified catego- three prohibit FACE is drafted to specific con- Congress may ries of activities that regu- duct outside health climes. first, power: late under the Commerce provides It part: relevant commerce; use channels of second, (a) the instrumentalities of interstate Prohibited activities.—-Whoever— persons or things commerce in inter- (1) by force or threat of force or commerce, state though even threat physical obstruction, intentionally in- only from activity; come intrastate jures, intimidates or interferes with or third, activities that substantially af- attempts injure, intimate or inter- fect interstate commerce. fere person per- because 1749. No con- been, son is or has or in order to tention has been made that the first cate- such person any intimidate or other here, gory is involved and the Courts of person any from, or class persons Appeals that have considered constitu- the or obtaining providing reproductive tionality of generally upheld FACE have services; the category. Act under the third For this reason, I will begin with a discussion of (3) intentionally or damages destroys point. property facility, of a or attempts so, to do facility provides because such Regulation I. of Activities reproductive health services ...

Having a Substantial To Relation Inter- shall subject penalties provided be to the state Commerce (b) in subsection and the civil remedies (c).... provided in determining In subsection may whether Congress properly regulate activity 18 U.S.C. 248. classification, third Commerce Clause Lo- provided The services abortion clinics pez present and Morrison considerations nature, clearly are commercial conduct- be following can distilled into the four as they exchange money. ed are questions: But these services not the activities 1) activity apparent Is the of an com- targeted by legislation. prohib- character; mercial parties interfering its third from with pa-

2) Does the express clinics, statute contain an entering tients and staff abortion jurisdictional element establish as well as may inflicting damage to the commerce; a with property By plain connection language, itself. its against the conduct of to its economic effects. reviewing statute is directed Courts operations. to a clinic’s employ those external FACE should a similarly disci- plined analysis. protestor’s a proscribed activity, theAs sale, purchase, involve a conduct- does not considering congres- When the limits of value in for the any exchange or return power, sional adopted the Court has service, rendering of a and cannot in “practical conception regula- of commercial sense be economic commercial deemed Lopez, tion.” 514 U.S. at 115 S.Ct. Although may in character. blockades re J.,' (Kennedy, concurring); see also revenue, prohibited a clinic’s con duce — Morrison, at-, U.S. S.Ct. fundamentally criminal in duct is nature 1750 (quoting Lopez). But to sustain easily category and does not fit within the reject concept. courts must activity. of commercial The statute does not resemble a commer- fact that criminal The conduct also regulation, cial typical but instead a exer- have financial effects does not transform police power: cise of a prohibiting state’s activity one commercial in into nature. intimidation, violence; trespass, robbery monetary Murder and have conse- providing criminal in- sanctions as well as quences, that does not transform crim- but junctions. inal codes into commercial regulation. inquiry threshold articulated in Lo- Morrison made it clear that the nature of pez repeated in Morrison is consistent activity to be restricted is determined prior the Court’s Commerce Clause itself, by an examination of the conduct wrote, decisions. As the Court “thus far and not such external factors as finan- in our history Nation’s our cases have effects, step cial which are one removed upheld regulation Commerce Clause of in- — Morrison, from the' statute’s focus. activity only trastate where that activity is U.S. 120 S.Ct. at 1750. Morrison, economic nature.” U.S. Lopez both finan- — n —, 1751. Two cases prohibited cial effects of the conduct were cited the Court in that provide context disputed. Breyer not Justice outlined in present useful contrast dispute. to the Lopez his dissent “obvious” links be- Motel, In Heart Atlanta Inc. v. Unit- economy tween gun violence. States, 241, 261-62, ed 379 U.S. 85 S.Ct. J., Lopez, 514 at 619-22 (Breyer, dis- (1964), 13 L.Ed.2d 258 paral- and the senting). Justice Souter’s dissent in Mor- lel case of Katzenbach v. McClung, 379 report ris on cited a leg- Senate from the 294, 13 L.Ed.2d 290 impact islative that estimated the history (1964), upheld legislation the Court requir- be, against violent crimes women to ing hotels and restaurants to make accom- minimum, Morrison, annually. billion $3 open — modations patrons to black as well as (Sout- at-, 120 U.S. S.Ct. at 1762 regulated white. The enterprises were er, J., dissenting). The Court nonetheless clearly within Morrison’s definition of eco- in Lopez concluded the Gun Free activity. nomic It was the hoteliers and School Zones Act was “a criminal statute themselves, restauranteurs in opera- its nothing terms has to do with business, tion of their who had to alter any ‘commerce’ or sort of economic enter- their conduct in comply order to with the prise,” Lopez, 514 U.S. at 115 S.Ct. , law. legislation apply The did not to third 1624, and said in “[g]en- Morrison that parties whose may conduct or not not, der-motivated crimes of violence are have been commercial. in any phrase, sense of the economic ac- - Morrison, tivity.” at-, U.S. any FACE does not in way control the S.Ct. operation of a clinic in procedures its or apparent It is distinction, that the Court patients. examined selection of That prohibited conduct element, without reference jurisdictional well as the lack of a private separates Rights FACE from the Civil residences and thus avoided the upheld issues, in Heart Atlanta and legislation despite constitutional Katzenbach. connections in mortgage, the forms of a an insurance policy and the use of natural cavalierly To dismiss the traditional dis- gas. tinctions criminal and commercial between “downplay

conduct is to the role that the inBut there is no such ambigui- regulated activity economic nature of the Indeed, ty. appears it sim- plays analysis.” in our Commerce Clause ply sought to “remedy extend a over a — Morrison, S.Ct. wider, intrastate, purely and more body of Lopez 1750. Both Morrison made the violent crime.” U.S. at inquiry key into commercial character a -, juris- S.Ct. at 1752. Without a holdings. present element to their In the dictional provide clause to a case-by-case case, only reasoned answer to the limitation, the Act’s reach becomes vulner- question blockading of whether the com- is able a Constitutional challenge. mercial in character nega- must be jurisdictional Because FACE lacks the tive. element, government in this case was required not any to establish connection B. The Act No Contains Jurisdictional with interstate commerce. It was not nec- “Hook” essary to show that interstate travel was jurisdictional A element in a statute affected, equipment hindered or regulated serves define the limits of the furnishings purchased were in interstate activity. Including requirement such a as- commerce, or that juris- other legislation sures that to- directed dictional indicia that have been used conduct, scope ward a defined one more passed statutes that have constitutional apt to be within the reach of the commerce muster satisfied. All that gov- were power granted Congress. See United clinic, ernment had to show was that a (3d States v. Bishop, 66 F.3d purely even if a enterprise, being local was Cir.1995) (Becker, J., concurring Ch. prosecutor blockaded. The thus had al- part part). A dissenting statutorily most unlimited discretion to intervene in a required proof of connection with inter- purely local disturbance. state case-by-case commerce mandates a preservation The of the constitutional inquiry. power allocation of between state and fed- Stressing redemptive power of such governments eral ais serious concern for element, in Lopez the Court discussed judicial both the branches. Bass, United States v. Including jurisdictional requirement in a (1971), 30 L.Ed.2d 488 where it way Congress statute is one can demon- circumspectly gun legislation read federal it recognizes important strate that to require a nexus with interstate com- in light issue and has acted of that knowl- Lopez, merce. 514 U.S. at edge. Bass, 1624. In the Court chose to avoid a jurisdictional of a absence clause potential infirmity constitutional in this “ flaw, a fatal FACE is one that is not cured Congress conveys fashion because ‘unless by the congressional findings that will be purpose clearly, its it will not be deemed to discussed next. significantly have changed the federal- ” Bass, (quoting state balance.’ Id. 404 Legislative Findings C. The 515). 349, U.S. at 92 Similarly, S.Ct. Inadequate Are — States, -, Jones v. United -, --, 1904, 1908, 1910, Morrison, 146 Lopez, Unlike but like (2000), carefully interpreted L.Ed.2d 902 legislative history FACE’S contains con- apply arson statute so as not to to all a gressional findings. As result of hear- 272 alleged very Committee re- This is the same “but-for causal

ings, Congress patients logic explicitly that chain” of that ports in floor debates Court at-, Morrison. Id. rejected in interstate for abor- and doctors travel tions; every 120 S.Ct. at 1752-53. If attenuated authorities were some- local upon stemming effect interstate commerce to control violence abor- times unable clinics; from an occurrence of violent crime that obstructionist tactics satis- tion test, in the of dol- fied the substantial effects then Con- had caused losses millions lars, close, gress “regulate any long in- could crime as as clinics to and had caused nationwide, impact patients. aggregated physicians timidated as well evidence, employ- crime has effects on Congress anecdotal substantial Based on ment, transit, production, consumption.” or intervention autho- decided federal Id. rized Clause and sec- Commerce

tion 5 of the Fourteenth Amendment was opinions Appeals of the Courts of appropriate. upheld rely heavily that have all on occasions, several we have said that

On the legislative history concluding that a congressional findings judi- are entitled to substantial effect on interstate commerce it our cial deference and that is not role to Weslin, existed. See United States v. 156 “ ‘second-guess legislative judgment (2d 292, United States Cir.1998); F.3d ” Parker, v. Congress.’ United States Bird, (5th v. 667, Cir.1997); 124 F.3d (3d Cir.1997) (quoting Bishop, 28, F.3d Reno, Terry v. 1412, 101 F.3d 1415-16 577). Accordingly, all that 66 F.3d at was (D.C.Cir.1996); United States v. Dinwid court was to en- die, required reviewing of a (8th Cir.1996); 76 F.3d 920-21 Congress had a rational sure basis for Wilson, United States v. 73 F.3d Id. legislation. its Reno, (7th Cir.1995); v. 55 F.3d Cheffer (11th Cir.1995); American 1520-21 approach However correct be Reno, (4th League v. 47 F.3d Life settings, longer in other it can no be said Cir.1995). But these decisions are undercut that such substantial deference is due in Morrison. With the asserted justifica assessing congressional cases the limits of infirm, tions constitutionally legislative power under In the Commerce Clause. history little does to demonstrate a reason Morrison, the Court stated that “the exis- congressional able judgment pro that the tence of congressional findings is not suffi- activity substantially hibited affects inter cient, itself, to sustain the constitution- state commerce. ality of legislation.” Commerce Clause Any Link is Too Attenuated D. upon Whether effect commerce is substantial enough to make As was said in Lopez, a sense “[i]n Congress’ power exercise of interdependent conduct world of appropriate Commerce Clause ulti- “is ours has an origin ultimate commercial mately judicial rather than a consequence, but yet we have not said the question.” Id. power may commerce reach so far. If

As the concluding extension, basis for that block- Congress attempts that then at upon ades have substantial effect inter- inquire the least we must whether commerce, state reasoned that power exercise of national seeks to intrude patients obstructions that deter going upon an area of traditional state concern.” to a clinic for Lopez, caused diminished business 514 U.S. at 115 S.Ct. 1624 cases, enterprise. J., (Kennedy, some when clin- concurring). Any supposed closed, travel, ics women were required to link proscribed between the conduct in interstate, perhaps commerce, to obtain the services FACE and interstate if one exists, another establishment. would be so attenuated that it could three justify general to also a federal occasions when the conduct oc- be used curred, police power. police intervened, local arrest- protesters, ed and filed state criminal surgical of the assuming Even some charges. All of the blockades were con- instruments, medications, furnishings and authorities, by trolled local including the were in interstate commerce at equipment one, last which police caused the local to point, some such a connection is so nebu- seek assistance from neighboring munici- provides boundary it no useful lous palities. only reported injuries were According under the Clause. Commerce the result of one kicking demonstrator Morrison, allowing to such remote factors police head-butting a officer. govern to constitutional limitations would “completely allow to obliterate standpoint From the of local law en- the Constitution’s distinction between na- personnel, forcement the conduct authority.” tional and local extraordinary, FACE addresses is not but U.S. 120 S.Ct. at 1752. is akin to following high disturbances rivals, game to to school seeking Persons block access abor- between bitter where problem, tion climes be a national loyalty but fans demonstrate their in mass un- sense, rape, robbery in that trespass ruly gatherings. Celebrations fans of present Being national concerns as well. a Super champions Bowl frequently require commonality mere of the several States by city police intervention to maintain or- justify regulation does not federal of these (some protect property der and of it un- auspices matters under the of interstate commerce). doubtedly in interstate Near commerce. by performers riots rock concerts who have traveled routinely interstate are con- The conduct at issue ac- blocking here — police trolled local Many forces. building verbally intimidating cess to a arguments justify same used to attempted those who a quin- enter —is could be used to federalize criminal con- tessentially problem. Despite local nature, despite duct of fact, competence inescapable obvious and the federal state authorities have demonstrated government use over chose to its resources years.1 they required ap- where were neither nor

propriate. It is difficult why to understand prohibited activity government

Because the has no federal invoked FACE when jurisdictional commercial and no character local authorities had the situation well in proved, element need be the statute as Duplication hand. of state and federal impermissibly jur- drafted extends federal injunctions judicial wastes resources and purely isdiction over conduct that to uncertainty leads and confusion. More- simply relationship intrastate and has no over, overlapping authority of enforcement in any substantial manner to interstate system is detrimental to the federal jurisdictional pre- commerce. Without a “[Cjitizens the liberties it secures. must requisite, FACE leaves the federal gov- have some means of which of the knowing ernment free to intrude into a state’s sov- two governments to hold accountable for duty ereign to maintain order perform given the failure to function. disturbance, abortion clinic-related no assign political ‘Federalism re- serves ” matter how trivial. sponsibility, not Lopez, to obscure it.’ (Kenne- S.Ct. 1624

Contrary congressional findings, to the J., dy, concurring) (quoting FTC v. Ticor responsi- here there was no abdication of Co., 621, 636, Title Ins. bility by state authorities. A state court (1992)). injunction had issued an 119 L.Ed.2d 410 against obstruct- When occurs, ing entry overlapping to the clinic. On each of the drawn fed- lines adequate- petition Attorney 1. Where state officials are unable to General for assistance ly control disturbances with their own re- community. from the federal law enforcement sources, 42 U.S.C. 10501 allows officials 274 therefore, and the “resultant ina- are blurred traveled interstate to reach it.

eralism basis, Id. On govern- branch of the that bility hold either the court concluded that to the protected people ment answerable to citizens is more the statute and business devolving than too much in dangerous even interstate commerce and so was within power.” Congress’ power remote central authority to the to enact under the second 577, J., Id. Id.2 (Kennedy, category. 1624 115 S.Ct.

concurring). Dinwiddie, however, failed to consider significance jurisdic the lack a glaring example is a of the feder- in although tional hook such ab fatally alization of local criminal law that is Lopez. a sence was factor in It is note implementation in flawed its because it worthy that the two cited by cases activities with no commercial regulates Dinwiddie court support holding its juris- character. The statute contains no that “in the clinic was com might which cabin dictional element its merce” were based on statutes did operation within the confines of the Com- E.g., jurisdictional contain limitations. Clause, congressional merce and the find- Bldg. United States v. American Maint. necessary justifica- ings provide fail to Indus., 271, 275-76, 2150, 422 U.S. 95 S.Ct. tion for federal intrusion into local law (1975) Act); 45 Unit (Clayton L.Ed.2d 177 enforcement. Robertson, ed States v. 669, 670, 514 U.S. 1732, (1995) II. of Interstate 115 S.Ct. 714 Instrumentalities L.Ed.2d (RICO). Commerce government argues persuaded also that FACE I am not purely that a local

may be catego- sustained under the second frequented by commercial service that is ry Supreme protec- noted nearby but patrons out-of-state is within Court — tion scope of the instrumentalities of interstate of the Commerce Clause without persons in things saving grace commerce or inter- jurisdictional of a clause. --- in Appeals 5, state commerce. The Court of n. Bird, 667, United States v. F.3d 674 S.Ct. at 1752 n. 5. (5th Cir.1997) concluded that FACE was in Lopez, significant It is the cases not category sustainable under this second support cited in power of the commerce because no evidence was submitted at trial under the second category involved such support such a conclusion. The Court Safety Appliance matters as the Act as Reno, Terry v. 1412, 101 F.3d 1415 applied to railroad cars used intrastate (D.C.Cir.1996) simply only noted that Southern Ry. commerce, and interstate

third category was relevant the case States, Co. v. United 20, 24, 222 U.S. before it. 2, (1911), fixing L.Ed. 72 The Court of Appeals in United States v. intrastate railroad fees affect inter- Dinwiddie, (8th Houston, 913, 76 F.3d 919-20 E. & W.T.R. Co. v. Cir. state rates. 1996), U.S., category, 342, 345, considered this second ob 234 U.S. 34 S.Ct. serving (1914). the clinic in that case was L.Ed. 1341 examples Other cited located in metropolitan area straddling Supreme Court include destruction this, two states. Because of a number of of an aircraft or thefts from interstate patients States, Perez v. United and staff members did not shipments. live located, Missouri where the clinic was and U.S. 91 S.Ct. 28 L.Ed.2d determinative, Harriss, It interesting, proscribed, but not United v. States 347 U.S. Dinwiddie, 612, 617, (1954), the record established the inter- 98 L.Ed. 989 state patients. including travel of a doctor and some jurisdictional facts that must be No findings such proved. were made in the case be- prosecution pro- The fact that the event, fore us. In the Dinwiddie evidence satisfy hypotheti- duces evidence that could would not cure deficiency jurisdictional the facial cal element cannot cure the statute, text of the Act itself. aAs criminal it lack of the material element in the statute give must notice of the nature of the conduct itself. (1971). ap- None of these situations sweep proaches broad

which, again, it must be said lacks jurisdictional appli- limitation to restrict its demonstrably matters

cation those interstate commerce.

III. Amendment Fourteenth government attempts also to sustain the statute as a valid exercise of congres- power

sional the Fourteenth provides Amendment. Morrison a short answer to that contention. The Four- states, applies teenth Amendment Act, Against and like the Violence Women private FACE is directed conduct where there is no indication of state action. Mor- —rison, 120 S.Ct. at 1756.

FACE, therefore, cannot be sustained un-

der the Fourteenth Amendment.

I conclude that FACE unconstitution- al under both the Commerce Clause and judg- the Fourteenth Amendment. The ments in this case should set be aside. ORAN; Terry Adolphs; Philip Albert Morris; Doyle Lupo; James Paul H.

Maurer, individually and on behalf of similarly situated,

a class of others Appellants,

v. STAFFORD; Blount; R. John Robert G. Joseph Carr; Jr.; Hoynes, J. Louis L. Murray; Olivier;

William J. David M. Considine; Jones; R. John Paul J. Hassan; Fred American Home Prod- Corporation. ucts

No. 99-5184. Appeals, United States Court of Third Circuit. Argued Feb. 2000. Sept. Filed

Case Details

Case Name: United States v. Gregg

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 7, 2000

Citation: 226 F.3d 253

Docket Number: 99-5079, 99-5124 and 99-5205

Court Abbreviation: 3rd Cir.