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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2003 Decided May 6, 2003
No. 02-5103
& No. 02-5104
UNITED STATES OF AMERICA,
APPELLEE
v.
OLIVIA A. ALAW, ET AL.,
APPELLEES
MARK H. GABRIEL, HOWARD S. HELDRETH, AND
PATRICK J. MAHONEY,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(No. 98cv01446)
James Matthew Henderson, Sr. argued the cause for appel-
lants. With him on the briefs was Richard P. Caro.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Kevin Russell, Attorney, U.S. Department of Justice, ar-
gued the cause for appellee. With him on the brief was
Jessica D. Silver, Attorney.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: The district court issued the
injunction in this case following our order to vacate and
remand its initial injunction in United States v. Mahoney, 247
F.3d 270, 279 (D.C. Cir. 2001). In that case, we upheld the
district court’s decision to issue an injunction against the
defendants who had violated the Freedom of Access to Clinic
Entrances Act, 18 U.S.C. § 248 (2000), by obstructing en-
trances to a reproductive health facility in the District of
Columbia during an anti-abortion protest on January 24,
1998. However, we found the resulting injunction to be
constitutionally overbroad, and remanded it to the district
court for correction. The district court entered the injunction
at issue in this appeal on January 17, 2002. See United
States v. Alaw, 180 F. Supp. 2d 197 (D.D.C. 2002). We
uphold the injunction with the exception of Part C. Because
we find that element does not conform to the requirements
set out in our prior decision, we vacate and remand to the
district court that portion of the injunction.
Background
We reviewed the facts underlying the imposition of the
initial injunction in our prior opinion, and because those facts
have not changed during the intervening years, we will only
summarize them briefly here. On January 24, 1998, the
defendants participated in a demonstration marking the twen-
ty-fifth anniversary of Roe v. Wade, 410 U.S. 113 (1973), at
the Capitol Women’s Center, a now defunct reproductive
health facility in the District of Columbia. The clinic had
three entrances, a north and south walkway; and a back
alley. During the course of the demonstration, several defen-
dants knelt on the south walkway in front of the clinic,
praying. Shortly thereafter, officers of the Metropolitan
Police Department cordoned off the front of the clinic, includ-
3
ing the walkways, with police tape. Even after repeated
warnings by police officers, some demonstrators continued to
occupy the cordoned-off areas and the walkways, both kneel-
ing and standing. Finally, police arrested demonstrators who
were inside the cordoned-off areas on a charge of ‘‘incommod-
ing’’ in violation of D.C. Code Ann. § 22–1107. Each arrestee
was released after pleading guilty and paying a $50.00 fine.
The United States later brought an action in federal district
court, charging the defendants with violating the Access Act,
18 U.S.C. § 248, and seeking an injunction.
After a two-day trial, the district court ruled in favor of the
government and entered a permanent injunction. The injunc-
tion precluded the defendants from:
1. Standing, sitting, lying or kneeling in front of
entrances to reproductive health facilities, or other-
wise physically blockading or obstructing access to
reproductive health facilities, located within the
boundaries of Interstate 495, popularly known as the
Capital Beltway;
2. Attempting, inducing, directing, aiding, or abet-
ting in any manner, others to take any of the actions
described in paragraph 1 above, or any actions that
would violate the Freedom of Access to Clinic En-
trances Act, 18 U.S.C. § 248;
3. Coming within a twenty-foot-radius of any re-
productive health facility located within the bound-
aries of Interstate 495;
4. ‘‘Reproductive health facility’’ means any hospi-
tal, clinic, physician’s office, or other facility that
provides medical, surgical, counseling, or referral
services relating to the human reproductive system,
including services relating to pregnancy, or the ter-
mination of pregnancy. 18 U.S.C. § 248(e)(1 & 5).
The defendants appealed the district court’s decision. Al-
though we affirmed the court’s finding of the defendants’
liability under the Act, we remanded the injunction because
we found it unconstitutionally overbroad in several specific
4
ways. See Mahoney, 247 F.3d at 287. The first problem we
noted with the injunction was the facial lack of correlation
between the provision restricting the defendants from coming
within a twenty-foot radius around ‘‘reproductive health facili-
ties’’ and the claimed government interests. Id. at 286. We
found that the definition of the covered facilities was ‘‘extraor-
dinarily broad,’’ and ‘‘[o]n its face would have prevented a
female defendant from visiting the offices of a gynecologist or
obstetrician, even for the purpose of receiving medical care.’’
Id. We also expressed concern that the injunction could be
violated unknowingly because it contained no intent require-
ment, and therefore, a defendant might violate the injunction
by simply wandering within twenty feet of a covered facility.
Id. We noted, ‘‘we cannot see how this sort of liability
without fault is necessary to promote the government inter-
ests.’’ Finally, we found that the injunction inadequately
addressed the issue of how the injunction applies when the
covered facility is in a multi-story building, or a building
containing facilities other than those covered by the injunc-
tion. Id. at 286–87. Although we did not reject the appropri-
ateness of the imposition of an injunction in this case, we
vacated the injunction and remanded the case to the district
court for correction.
On October 11, 2001, the government filed a Motion For
Entry of Order on Remand, asking the district court to enter
a new injunction consistent with our opinion in Mahoney.
The defendants filed oppositions, but submitted no new evi-
dence and no party requested an evidentiary hearing. The
defendants again argued that they had not violated the Act
and that their conduct fell within the First Amendment’s
protection. In addition, the defendants argued that no in-
junction should issue because there was no risk of further
violations. On January 17, 2002, the district court found it
necessary to issue an injunction, modified in response to our
opinion. See United States v. Alaw, 180 F. Supp. 2d 197.
The new injunction enjoins the defendants from:
a. Intentionally standing, sitting, lying or kneeling
in front of entrances to any facility where abortions
5
are performed, or otherwise physically blockading or
obstructing access to such facilities, located within
the boundaries of Interstate 495, popularly known as
the Capital Beltway;
b. Intentionally attempting, inducing, directing,
aiding, or abetting in any manner, others to take any
of the actions described in paragraph (a) above;
c. Intentionally coming within a twenty-foot radius
of any facility where abortions are performed that is
located within the boundaries of Interstate 495; it is
further
ORDERED, that if an office where abortions are
performed is located in a building housing one or
more offices where abortions are not performed,
Defendants’ compliance with paragraph (b) above
shall be determined with reference to his or her
distance from the entrances and exits of the office
where abortions are performed TTT
The defendants now appeal this new version of the injunc-
tion.
Analysis
First, most of the issues presented by the defendants are
not properly before this Court, including the necessity of the
injunction and its alleged unconstitutional overbreadth and
vagueness violations of the First Amendment. In the prior
appeal in this case, we affirmed the appropriateness of injunc-
tive relief as to these defendants, as well as the district
court’s finding that the defendants were liable under the
Access Act. See Mahoney, 247 F.3d at 282–86. Therefore,
those issues are barred by law of the case doctrine, which
refers to the concept that, ‘‘[w]hen there are multiple appeals
taken in the course of a single piece of litigation, law-of-the-
case doctrine holds that decisions rendered on the first appeal
should not be revisited on later trips to the appellate court.’’
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.
Cir. 1995). In addition, the law of the circuit doctrine applica-
ble here prevents a new appellate panel from declining to
6
follow the legal rulings of the panel in a prior appeal. See
LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996). We
stated in Mahoney that ‘‘[w]e do not reject the proposition
that an injunction may be appropriate in this case to ensure
that women in the Washington, D.C. metropolitan area can
continue to exercise their constitutional rights.’’ Mahoney,
247 F.3d at 287. Therefore, we will not revisit the issues
raised in regard to the district court’s imposition of an
injunction in this case, as we have already affirmed the
appropriateness of that decision. Furthermore, several addi-
tional issues raised by the defendants are deemed waived,
either because they could have been brought during the prior
appeal and were not, or because they could have been raised
before the district court in this case, and were not. The
defendants have thus forfeited their right to bring these
claims in the instant appeal, most of which lacked merit in
any case. See Palmer v. Kelly, 17 F.3d 1490, 1495–96 (D.C.
Cir. 1994).
We therefore turn our attention to the newly issued injunc-
tion. As we noted in the prior appeal, injunctions against
speech have long been disfavored. See Mahoney, 247 F.3d at
285 (citing Near v. Minnesota, 283 U.S. 697 (1931)). The
Supreme Court has determined that the validity of ‘‘content-
neutral’’ injunctions regulating anti-abortion protests are to
be tested under the First Amendment by determining
‘‘whether the challenged provisions of the injunction burden
no more speech than necessary to serve a significant govern-
ment interest.’’ Mahoney, 247 F.3d at 286 (quoting Madsen
v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994)).
The government interests here continue to be: ensuring
public safety, protecting the free flow of traffic, protecting
property interests, and ensuring the freedom of access to
reproductive health services. See Mahoney, 247 F.3d at 286.
The question regarding this injunction remains whether it
burdens more speech than necessary.
The district court satisfied the requirements of our remand
order in several ways. The narrowing of covered facilities
from ‘‘reproductive health facilities’’ to those ‘‘where abor-
tions are performed’’ sufficiently cures the overbreadth of the
7
prior injunction on that point. Additionally, the new injunc-
tion properly clarifies the scope of the injunction as it applies
to multi-story buildings, or buildings containing facilities oth-
er than those covered by the injunction. However, the new
injunction fails to cure the intentionality problem we pointed
out in our prior decision. Paragraph (c) of the new injunction
attempts to address this problem by inserting the word
‘‘intentionally’’ into the wording of the vacated injunction.
This addition does not fully correct the flaw.
The example we used in our prior opinion remains relevant.
We stated then that one of the principal problems with the
lack of an intentionality element in the injunction was that,
‘‘[w]henever a defendant wandered within twenty feet of a
covered facility he would be in technical violation of the
injunction.’’ Mahoney, 247 F.3d at 286. We then ordered
that, ‘‘[s]ome element of intent must be inserted in the
injunction in order to avoid curtailing legitimate activities like
walking down the street.’’ Id. As the injunction could be
read, if a defendant was intentionally walking down the street
and the sidewalk happened to be within twenty feet of a
covered facility, he would violate the injunction, even if he had
no knowledge of the covered facility’s presence. Thus, the
mere insertion of the word ‘‘intentionally’’ does not address
the issue we raised previously, and we therefore remand the
discrete offending paragraph (c) once again to the district
court.
The government relies on two Supreme Court cases, both
of which upheld the constitutionality of a fixed buffer zone in
injunctions against anti-abortion protestors, Madsen v. Wom-
en’s Health Ctr., Inc., 512 U.S. 753 (1994), and Schenck v.
Pro–Choice Network of Western New York, 519 U.S. 357
(1997). Neither of these cases supports the issuing of an
injunction which creates a violation by merely passing
through a fixed buffer zone as untailored as the one created
here. First, in Madsen, the buffer zone was specifically
tailored to one particular clinic, and the injunction described
very specific activities prohibited within the thirty-six foot
buffer zone. See Madsen, 512 U.S. at 759–60. In this case,
the fixed buffer zone is not tailored to a particular site, and
8
the injunction describes the prohibited activities in only the
most general terms, ‘‘coming within a twenty-foot radius of a
covered facility.’’ The buffer zone in the instant case is far
more analogous to the one approved in Schenck, a fifteen-foot
zone around the entrances of covered facilities in Western
New York. The comparable provision in the Schenck injunc-
tion states that the enjoined parties were prohibited from:
(b) demonstrating within fifteen feet from either
side or edge of, or in front of, doorways or doorway
entrances, parking lot entrances, driveways and
driveway entrances of such facilities, or within fif-
teen feet of any person or vehicle seeking access to
or leaving such facilities, except that the form of
demonstrating known as sidewalk counseling by no
more than two persons as specified in paragraph (c)
shall be allowed;
Schenck, 519 U.S. at 366 n.3.
The Schenck injunction specifies the prohibited activity as
‘‘demonstrating,’’ which has an inherent intentionality to it, in
contrast to the injunction in the instant case, which prohibits
merely ‘‘coming’’ within the buffer zone. Neither case sup-
ports a requirement that would prohibit defendants from
entering the protected zone either while unaware that it was
a protected zone or, knowing that it is, while performing an
innocent act such as merely walking down the street. There-
fore, because that paragraph of the current injunction re-
mains untailored by an appropriate intent-based limitation,
we once again remand it to the district court.
So ordered.