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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF KENTUCKYLOUISVILLE DIVISIONCIVIL ACTION NO. 10-759-CERIC H. HOLDER, JR., PLAINTIFF,V. MEMORANDUM OPINION AND ORDERDAVID HAMILTON, DEFENDANT.* * * * * * * * * *
This matter is before the cou
rt on the Attorney General’s motion f
orsummary judgment (R. 45). The Attorney General alleges that David Hamiltonpushed a volunteer escort accompanying a patient into a reproductive health careclinic after the escort had placed herself between Hamilton and the patient, andthat this constitutes a violation of the Freedom of Access to Clinic Entrances Act,
18 U.S.C. § 248 (“FACE”
). However, because genuine disputes of material factexist that preclude summary judgment, the court will deny the motion.T
he undisputed facts of this case are as follows. The EMW Women’s
Surgical Center in Louisville, Kentucky, provides reproductive health services,including abortions. Pro-life protesters are often present outside EMW, as arevolunteer escorts who employ various methods to interpose themselves betweenpatients of the clinic and pro-life protesters. Hamilton, around January 30, 2010,was one such p
rotester, or “sidewalk counselor;” his
purpose outside EMA was topersuade women to consider alternatives to abortion.
Case 3:10-cv-00759-JBC-DW Document 55 Filed 09/20/12 Page 1 of 5 PageID #: 614
2On January 30, 2010, Hamilton approached a woman he perceived to be apatient walking toward EMW. Jane Fitts and others interposed themselves betweenHamilton and the patient, and in his attempt to continue talking to the patient,
Hamilton “pushed [Fitts’s] arm down slightly.” Deposition of David Hamilton, May
21, 2012, R. 45-6 at 45.In addition to these undisputed facts, the Attorney General presents otherevidence, which Hamilton disputes, that indicates Hamilton may have grabbed orshoved Fi
tts in another incident that same day and that Fitts’s arm was bruised at
some point during that day. The Attorney General has also submitted a UniformCitation issued to Hamilton on that day by Louisville Metropolitan Police OfficerBrad Aubin that charges him with disorderly conduct and states that Hamilton
“made
[an]
aggressive attempt to stop people from entering the clinic,” that he was“pushing and shoving clinic escorts,” and that he “caused alarm to other peopleentering the clinic.”
R. 45-8.To hold Hamilton accountable for violating FACE on January 30, 2010, theAttorney General must show that Hamilton: 1) used force, threatened force, orphysically obstructed; 2) with the intent to; 3) injure, intimidate, or interfere withsomeone; 4) because that person was seeking or providing reproductive healthservices.
See
18 U.S.C. § 248(a)(1);
Lotierzo v. Woman’s World Medical Center,
Inc.
, 278 F.3d 1180 (11th Cir. 2002). The statute
further defines “interfere with”to mean “to restrict a person’s freedom of movement,” and “intimidate” to mean“to place a person in reasonable apprehension of bodily harm to him
- or herself or
Case 3:10-cv-00759-JBC-DW Document 55 Filed 09/20/12 Page 2 of 5 PageID #: 615
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another.” 18 U.S.C. § 248(e)
. There is no genuine dispute as to the first element.Hamilton admits that when Fitts blocked his path, he made contact with her inorder to move her arm out of his way. Such contact, however fleeting, is a use of
force; the term “force” as employed in FACE “is not limited to violent or assaultive
force, and there is no exception for fleeting and
de minimis
contact,”
New York exrel. Spitzer v. Cain
, 418 F.Supp.2d 457, 473 (S.D.N.Y. 2006) (internal citationsomitted). However, this admission, along with the other evidence the AttorneyGeneral has submitted, is not sufficient to justify summary judgment in favor of theAttorney General.In order to grant summary judgment to the Attorney General, the courtwould have to resolve multiple material factual disputes in his favor; however, in amotion for summary judgment, the court makes all reasonable inferences in favorof the non-movant.
See Anderson v. Liberty Lobby
, 477 U.S. 242, 255 (1986).Thus, while the Attorney General has established that Hamilton employed force,genuine disputes of material fact exist including, but not limited to, whether suchforce was used intentionally to injure, intimidate, or interfere with Fitts, andwhether Fitts was indeed providing reproductive health services. Courts haverefrained from granting summary judgment where such force that was used wasinadvertent or accidental, such as where defendants bumped into a patient orescort they had been following when that person stopped suddenly.
See Cain
, 418F.Supp.2d
at 475;
see also New York ex rel. Spitzer v. Kraeger
, 160 F.Supp.2d360, 372 (N.D.N.Y. 2001) (describing types of offensive contact proscribed by
Case 3:10-cv-00759-JBC-DW Document 55 Filed 09/20/12 Page 3 of 5 PageID #: 616
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Federal Court Denies U.S. Dept. of Justice's motion for summary judgment in FACE Case Againt Pro-Life Advocate
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