United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2001 Decided May 1, 2001
No. 00-5035
United States of America,
Appellee
v.
Patrick J. Mahoney, et al.,
Appellants
Consolidated with
Nos. 00-5036, 00-5055, 00-5090 & 00-5148
Appeals from the United States District Court
for the District of Columbia
(98cv01446)
Brian Ricardo Chavez-Ochoa argued the cause for appel-
lants. With him on the briefs were Frederick Herbert Nel-
son, Richard P. Caro, and James Matthew Henderson, Sr.
James Matthew Henderson, Sr. was on the brief for appel-
lant Patrick J. Mahoney. Mark N. Troobnick entered an
appearance.
Kevin K. Russell, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Bill Lann Lee, Assistant Attorney General, and Jessica D.
Silver, Attorney.
Before: Henderson and Randolph, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Separate concurring statement filed by Circuit Judge
Henderson.
Randolph, Circuit Judge: January 22, 1998, marked the
twenty-fifth anniversary of Roe v. Wade, 410 U.S. 113 (1973).
Individuals from around the country arrived in Washington to
participate in the annual "March for Life." Other demonstra-
tions were also planned, including a protest at the Capitol
Women's Center, an abortion clinic in Washington. Among
those who took part in that protest were the seven individuals
who bring this appeal. In a civil action by the United States,
the district court found these defendants guilty of violating
the Freedom of Access to Clinic Entrances Act, 18 U.S.C.
s 248. The court issued an injunction forbidding the defen-
dants from "[c]oming within a twenty-foot-radius of any re-
productive health facility located within" the Capital Beltway.
They contest their liability and the scope of the injunction.
I.
On January 23, 1998, one day before the demonstration at
the abortion clinic, the defendants attended a rally at a
downtown hotel. Defendants Mahoney and Benham an-
nounced the demonstration planned for the Capitol Women's
Center. Mahoney later alerted the police. The next morning
a group led by defendants Benham and Gabriel approached
the clinic. The clinic had three entrances, two in the front
(the north and south walkways) and another in a back alley.
By the time the defendants arrived, volunteers had already
created a human chain in front of the clinic to assist staff,
patients and other authorized persons who sought to enter
the clinic. Four of the defendants (Gabriel, Heldreth, Tyree
and White), later joined by defendant Newman, knelt in front
of the clinic on the south walkway, bowing their heads and
praying.
Shortly thereafter officers of the Washington Metropolitan
Police Department cordoned off the front of the clinic with
police tape. The enclosed area included both front entrances
to the clinic, as well as the main sidewalk along the length of
the front of the building. Beginning at 8:15 a.m., police
officers issued three warnings to all individuals inside the
tape line that if they did not vacate the cordoned area they
would be arrested for incommoding in violation of D.C. Code
Ann. s 22-1107.1 Mahoney--who until this time had been
outside the cordoned area--approached a police officer and
asked whether anyone was allowed inside the tape line. The
officer told him no. Mahoney then crossed the line, proceed-
ed down the north walkway, knelt near the north clinic door
and prayed aloud, expressing his hope that the demonstration
would prevent abortions from occurring. The police arrested
the individuals inside the cordoned-off area, including the
seven defendants. Each was charged with incommoding, and
was released after pleading guilty and paying a $50 fine.
Throughout the demonstration the clinic continued to treat
patients by admitting them through a rear entrance. Al-
though other demonstrators impeded entry through that
__________
1 In relevant part, this statute provides: "It shall not be lawful
for any person or persons within the District of Columbia to
congregate and assemble in any street, avenue, alley, road, or
highway, or in or around any public building or inclosure, or any
park or reservation, or at the entrance of any private building or
inclosure, and engage in loud and boisterous talking or other
disorderly conduct, or to insult or make rude or obscene gestures or
comments or observations on persons passing by, or in their
hearing, or to crowd, obstruct, or incommode, the free use of any
such street, avenue, alley, road, highway, or any of the foot pave-
ments thereof, or the free entrance into any public or private
building or inclosure...."
door, clinic volunteers were able to escort patients into the
facility.
The United States later brought this action in federal
district court, charging the defendants with violating the
Access Act and seeking an injunction (the government
dropped its request for civil penalties and statutory damages).
After a two-day bench trial, the court ruled in favor of the
government and entered a permanent injunction.
II.
The attorneys for the defendants must think that the more
issues they raise, the greater their chance of success. Their
briefs squeeze nine issues out of this case, and many more
sub-issues. Untenable arguments get equal billing with po-
tentially promising ones. Because every contention is treated
equally, none receives much in-depth analysis. We will not
be drawn into providing a written response to every one of
the defendants' contentions. They have displayed no judg-
ment about what is a good argument and what is a bad one.
See United States v. Brocksmith, 991 F.2d 1363, 1366 (7th
Cir. 1993). We hope this opinion will provide some guidance:
those defense arguments not specifically addressed have been
considered and found so untenable that they do not warrant
comment.
A.
We have sustained the Access Act against a facial constitu-
tional challenge. Terry v. Reno, 101 F.3d 1412 (D.C. Cir.
1996). Defendants do not ask for reconsideration of Terry.
They do claim that the district court erred in finding that
they had violated the Act. To make out a violation the
government had to prove that the defendants (1) "by physical
obstruction," (2) "intentionally" (3) "injure[d], intimidate[d] or
interfere[d] with or attempt[ed] to injure, intimidate or inter-
fere with any person," (4) "because that person is or has been
... obtaining or providing reproductive health services." 18
U.S.C. s 248(a)(1). "[P]hysical obstruction" is defined as
"rendering impassable ingress to or egress from a facility
that provides reproductive health services ... or rendering
passage to or from such a facility ... unreasonably difficult
or hazardous." 18 U.S.C. s 248(e)(4). The record leaves no
doubt that the government established its case against six of
the seven defendants--Benham, Gabriel, Heldreth, Tyree,
Newman, and White. Their argument--or more accurately,
their bare assertion--is that they did not obstruct or block
access to the clinic. The evidence is to the contrary. When
they arrived at the clinic, Gabriel, Heldreth, Tyree, Newman,
and White knelt or sat within five feet of the south door, the
main entrance to the clinic. Benham was pacing just behind
them. When the police tried to remove them they offered
passive resistance and had to be carried away.
B.
The seventh defendant, Mahoney, seeks to differentiate
himself from the others. He contends that he was familiar
with the operation of the Capitol Women's Center, having
protested there before, and that as an experienced demon-
strator he knew the north walkway led to a locked door. And
so he claims that when he crossed over the police tape,
walked to the north door, positioned himself three feet from it
and prayed aloud he did so without intending to obstruct
anyone. The district court found that this door and its
connected walkway were "rarely used," that the door served
"largely [as] an exit for emergencies" and that it was "gener-
ally locked." United States v. Alaw, No. 98-1446, mem. op.
at 8 (D.D.C. Jan. 21, 2000). The fact that the door was
locked, Mahoney argues, meant that it was impossible for him
to "render[ ] impassable ingress to or egress from" the facili-
ty. 18 U.S.C. s 248(e)(4) (defining "physical obstruction").
He also claims that his selection of the north door shows that
he did not intend to obstruct or attempt to obstruct entrance
to the clinic, and was there to express his solidarity with
those who were protesting.
The district court found that Mahoney interfered or at-
tempted to interfere with ingress or egress from the facility,
mem. op. at 28, and that he did so with the requisite specific
intent. Id. at 30. We may set aside a district court's factual
findings only if they are "clearly erroneous." Fed. R. Civ. P.
52(a); United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir.
2000). At trial Mahoney repeatedly stated that he selected
the north door of the clinic specifically so he would not
interfere with ingress or egress. On direct examination,
when asked why he elected to kneel and pray before the
north door, he answered: "The reason I chose that [door is]
because I know that that door is never used, that no patients
or staff ever go in there, so I could be assured that I would
not interfere, harass or intimidate or block anyone wanting to
use the clinic." The district court refused, however, to credit
this "post hoc self-serving explanation." Mem. op. at 30. We
have no basis for setting aside what amounted to the district
court's assessment of Mahoney's credibility. Bishopp v. Dis-
trict of Columbia, 788 F.2d 781, 785 (D.C. Cir. 1986). The
court also noted that while on the walkway in front of the
north door, Mahoney said "let's pray right now for any
woman who was thinking about coming here this morning ...
as she sees all this going on, oh God, that she would make the
decision to save her child ... Father, we pray that even as
they come driving down this street and saw the police tape
and saw the folks out, that Father they would make the
decision for life." Mem. op. at 30. In light of this evidence
and the other circumstances of the protest, including Maho-
ney's organizational role in the event, id. at 9, the district
court's determination that Mahoney acted with the requisite
specific intent is not clearly erroneous.
The question remains whether the government proved the
other elements of a statutory violation. The district court
found that Mahoney intentionally interfered with persons
seeking reproductive care by physically obstructing access to
the clinic, or at least attempting to do so. We agree that he
accomplished his goal. The fact that Mahoney elected to
kneel and pray before a door that was mainly used as an
emergency exit does not mean that he did not render ingress
or egress "unreasonably difficult" given the circumstances.
18 U.S.C. s 248(e)(4). Mahoney entered the cordoned-off
area in part so that he would be arrested with the other
demonstrators, and that is precisely what happened. It
required fourteen police officers to take Mahoney and the
other defendants into custody. In crossing the police line
after the officers warned those within the cordoned area that
they would be arrested, Mahoney contributed to the disrup-
tion and to the interference with those trying to enter or
leave the clinic. The Access Act does not limit physical
obstruction to bodily obstruction, but rather is broadly
phrased to prohibit any act rendering passage to the facility
unreasonably difficult. 18 U.S.C. s 248(e)(4); see United
States v. Soderna, 82 F.3d 1370, 1373 (7th Cir. 1996). By
contributing to the demonstration within a few feet of the
clinic entrances, Mahoney's actions compelled patients to
enter the clinic through the "crowded and chaotic" rear
entrance. Mem. op. at 24; see United States v. Lindgren,
883 F. Supp. 1321, 1328 (D.N.D. 1995). This was a foreseeable
and intended consequence of his action, and it constitutes
"physical obstruction."
Further, Mahoney does not dispute that he used his body
to obstruct the north door. While that door was not normally
used for ingress, the testimony was that the door was an
emergency exit--which is clearly a method of egress. In
light of the rash of attacks on women's health clinics, an
emergency exit may be a particularly important means of
egress. See Terry, 101 F.3d at 1416. The statute does not
distinguish between frequently used and infrequently used
means of egress, and we decline to write in such a distinction.
Accordingly, we affirm the district court's judgment against
defendant Mahoney.
C.
Defendant Tyree also tries to distinguish herself from the
other defendants. On the first day of trial, December 14,
1999, Tyree's counsel informed the court that the day before
he had reached a settlement with the government on behalf of
his client, but that government counsel had backed out that
morning. After hearing from the government, the district
court judge indicated that she was inclined to send the matter
to the magistrate judge to determine whether settlement had
in fact been reached. On January 12, 2000, Tyree filed a
"Motion Requesting Compliance with Mediation Order," re-
peating her contention that she had reached a settlement with
the government and requesting that the court refer the
matter to Magistrate Judge Facciola for resolution. On
January 21, 2000, the district court entered an order against
Tyree and issued an accompanying memorandum opinion,
neither of which addressed her motion. On January 24, 2000,
the government filed an opposition to Tyree's motion, denying
that any settlement had been reached. Attached to the
motion was a copy of a facsimile transmitted to government
counsel by Tyree's counsel on December 13, 1999. In part,
the facsimile stated that "Ester Tyree [is] willing to accept
the terms of settlement we discussed." On February 15,
2000, the district court issued an order dismissing Tyree's
motion as moot. In relevant part, the order states: "Given
the fact that judgment was granted ... against Defendant
Tyree (who has not appealed that judgment)," the motion is
moot. The district court appears to have assumed that the
time for appeal had run, and that this failure to take appeal
from the judgment mooted Tyree's motion.
The district court erred in dismissing the motion as moot.
Tyree's notice of appeal had to be filed within sixty days after
the district court's order of January 21, 2000. Fed. R. App. P.
4(a)(1)(B). By the date of the court's dismissal order (Febru-
ary 15) that time had not run. Whether parties have reached
a settlement is a question of contract law. Village of Kakto-
vik v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982); Wilson v.
Wilson, 46 F.3d 660, 666 (7th Cir. 1995). In the District of
Columbia, an enforceable contract exists when there is an
agreement about all material terms and an intention of the
parties to be bound. Quijano v. Eagle Maintenance Serv.,
Inc., 952 F. Supp. 1, 3 (D.D.C. 1998). When there is a
genuine dispute about whether the parties have entered into
a binding settlement, the district court must hold an eviden-
tiary hearing that includes the opportunity for cross-
examination. Autera v. Robinson, 419 F.2d 1197, 1202-03
(D.C. Cir. 1969); Wilson, 46 F.3d at 664. The district court
here failed to direct such a hearing before the magistrate
judge and failed to rule on the merits of Tyree's motion. We
therefore must vacate the judgment against Tyree and re-
mand with instructions to determine whether a valid settle-
ment had been reached.2
III.
While we affirm the judgment against all defendants except
Tyree, we vacate the injunction as overbroad and violative of
the First Amendment. The injunction precludes the defen-
dants from:
1. Standing, sitting, lying, or kneeling in front of en-
trances to reproductive health facilities, or otherwise
physically blockading or obstructing access to repro-
ductive health facilities, located within the boundaries
of Interstate 495, popularly known as the Capital
Beltway;
2. Attempting, inducing, directing, aiding, or abetting in
any manner, others to take any of the actions de-
scribed in paragraph 1 above, or any actions that
would violate the Freedom of Access to Clinic En-
trances Act, 18 U.S.C. s 248;
3. Coming within a twenty-foot-radius of any reproduc-
tive health facility located within the boundaries of
Interstate 495;
4. "Reproductive health facility" means any hospital,
clinic, physician's office, or other facility that pro-
vides medical, surgical, counseling, or referral ser-
vices relating to the human reproductive system,
including services relating to pregnancy, or the ter-
mination of pregnancy. 18 U.S.C. s 248(e)(1 & 5).
Injunctions against speech have long been disfavored. See
Near v. Minnesota, 283 U.S. 697 (1931). Some legal histori-
__________
2 We wish to make clear that we have considered defendant
Tyree's other claims and rejected them. To the extent that she did
not enter into a settlement with the government, we would affirm
the judgment against her.
ans believe that the essential purpose of the First Amend-
ment was to banish such prior restraints. Actions for injunc-
tions are equitable and so no jury is present, unlike criminal
prosecutions for speech already given. The burden of proof
is also different. And because of the rule of Walker v. City of
Birmingham, 388 U.S. 307 (1967), those subject to injunc-
tions, even invalid injunctions, must comply until the injunc-
tion is overturned on appeal. The unconstitutionality of an
injunction is no defense to a contempt prosecution. Despite
these considerations the Supreme Court has decided not to
use prior restraint analysis to determine the validity of
injunctions regulating anti-abortion protestors, at least when
the injunctions are based on past violations by those subject
to the court's decree. See Madsen v. Women's Health Ctr.,
Inc., 512 U.S. 753, 763 n.2 (1994); Schenck v. Pro-Choice
Network of Western New York, 519 U.S. 357, 374 n.6 (1997).
"Content-neutral" injunctions are to be tested under the First
Amendment by determining "whether the challenged provi-
sions of the injunction burden no more speech than necessary
to serve a significant government interest." Madsen, 512
U.S. at 765.
The significant government interests here are about the
same as those spelled out in Schenck: "ensuring public safety
and order, promoting the free flow of traffic on streets and
sidewalks, protecting property rights, and protecting a wom-
an's freedom to seek pregnancy-related services," 519 U.S. at
376. The question, then, is whether the injunction burdens
"more speech than necessary." Madsen, 512 U.S. at 765.
The injunction prohibits the defendants from coming within
a twenty-foot radius of any facility inside the Capital Beltway
that provides counseling, medical or referral services "relat-
ing to the human reproductive system." Although the defen-
dants have not challenged the geographic scope of the injunc-
tion (compare Schenck, 519 U.S. at 366 n.3, which upheld an
injunction for the entire Western District of New York) or its
lack of any temporal limits, there are other problems. The
buffer zone is fixed at twenty feet, compare Schenck, 519 U.S.
at 367, but it lacks the necessary correlation between the
provision and the government interests. The language defin-
ing a covered facility is extraordinarily broad. On its face,
the injunction would preclude a female defendant from visit-
ing the offices of a gynecologist or obstetrician, even for the
purpose of receiving medical care. It would preclude the
defendants from visiting any place of religious worship where
"counseling" is provided to pregnant women considering an
abortion. To give another example, it would preclude the
defendants from volunteering at an Operation Rescue facility
in the District of Columbia where they could counsel individu-
als to carry a pregnancy to term. Such burdens on speech
are unrelated to the interests in public order and unimpeded
access to medical care reflected in the Access Act.
We are also concerned that the injunction could be violated
unknowingly. Whenever a defendant wandered within twen-
ty feet of a covered facility he would be in technical violation
of the injunction. The injunction contains no intent require-
ment. Yet we cannot see how this sort of liability without
fault is necessary to promote the government interests the
Supreme Court identified. Some element of intent must be
inserted in the injunction in order to avoid curtailing legiti-
mate activities like walking down the street.
There is another problem. No one can be sure how the
injunction applies when the covered facility is in a multi-story
building. Would it be a violation of the injunction if a
defendant visited a different office within the same building?
From what point does one measure the twenty feet--the
doctor's office, or the entire structure? At oral argument
counsel for the government assured us that the district court
meant the office to be the point of measurement, but the
record leaves the subject in considerable doubt. To avoid
chilling legitimate speech, the question must be clarified. Cf.
Hill v. Colorado, 120 S. Ct. 2480, 2510 (2000) (Scalia, J.,
dissenting).
We do not reject the proposition that an injunction may be
appropriate in this case to ensure that women in the Wash-
ington, D.C. metropolitan area can continue to exercise their
constitutional rights. But this injunction is considerably
overbroad. Compare Schenck, 519 U.S. at 366 n.3. We
therefore vacate the injunction and remand this case to the
district court.
Affirmed in part, vacated in part, and remanded.
Karen LeCraft Henderson, Circuit Judge, concurring:
I concur in the majority opinion except that I would strike
the first paragraph of Part II and in its place add the
following final sentence to the opinion:
The appellants' remaining arguments are without merit and
warrant no discussion.