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FACE Act Abuse: Justice Dept. Suit Against Pro-Life Advocate Thrown Out

Judge: “Speculation piled on top of speculation ... lacks any proof." (Also read J. Christian Adams' coverage of the case.)

by
Hans A. von Spakovsky

Bio

August 19, 2013 - 12:00 am

A federal judge in Kansas has just thrown out the latest ideologically driven Justice Department prosecution under the FACE Act, ending a long nightmare for a pro-life activist.

Judge J. Thomas Marten granted Angel Dillard summary judgment, finding that the government produced no evidence of a “true threat” under the law, and that Dillard’s letter to a doctor who planned to open an abortion clinic was “constitutionally protected speech.”

I’ve written previously about the Civil Rights Division’s abuse of its authority under the Free Access to Clinic Entrances Act. The statute was intended to stop physical obstruction, intimidation, or the use or threat of force outside of abortion clinics. But it specifically protects the First Amendment rights of “expressive conduct,” including peaceful demonstrations. Yet the Special Litigation Section of the Justice Department’s Civil Rights Division repeatedly used the FACE Act to intimidate pro-life activists who never posed any threat of violence against abortion clinics.

Last year, a federal court in Florida awarded $120,000 in attorneys’ fees to a woman wrongfully prosecuted by the Section for handing out pro-life literature outside of an abortion clinic. The almost total lack of evidence in that case left the judge wondering outright whether the prosecution was the result of the counselor’s political views. The judge was “at a loss as to why the Government chose to prosecute this particular case in the first place,” because the record was “almost entirely devoid of evidence” that the counselor “acted with the prohibited motive and intent” or had “engaged in any unlawful conduct.”

The Kansas case shows a near-identical lack of evidence regarding motive, intent, and wrongdoing. Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion clinic in Wichita. As the judge pointed out, most of Dillard’s letter “centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic.” But Dillard also wrote that Means would be “checking under” her car every day because she would never know if someone had placed “an explosive under it.”

As Dillard herself said, she was not threatening Means but telling her what would probably be the “state of mind” of Means all the time if she opened the clinic — she would be constantly worried about her safety. In fact, Means herself admitted that she had heard the very same warnings about her safety if she went through with her plans “from family and friends” (none of whom were prosecuted by Justice).

The Wichita Police Department concluded “there was not a direct threat against” Dr. Means.  The FBI also investigated the letter and Dillard. FBI Agent Sean Fitzgerald did not deny that he had told Dillard that the letter “was no big deal” and that he had recommended against a lawsuit. Indeed, he told the Justice Department that “there was nothing there, it’s not a threat.” Fitzgerald also told Dillard that the FBI in general was “frustrated by the suit … they felt this was undermining the trust and the relationships that they were trying to develop with people who were not extremists but were still pro-life.”

In fact, the FBI had investigated Dillard two years previously after she wrote a letter to Scott Roeder, who was imprisoned for the murder of abortion provider Dr. George Tiller. The FBI concluded that Dillard was not “involved in violations of criminal law” and that Dillard “felt that Scott Roeder had made a mistake” by using violence. She made it clear that abortion opponents should only “do within the law whatever we can do to stop abortion,” and the judge cited the fact that Dillard had “publicly deplored [Roeder’s] violent actions.”

Although it lost the case, the Justice Department may have partially achieved what it wanted when it filed suit against Dillard. The judge concluded that Dillard’s decision to refrain from vigorous anti-abortion activities after the lawsuit began:

… may be due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice. Almost immediately after the sending [of] the letter, Dillard became the target of investigations by the Wichita police and the F.B.I., followed by the present civil prosecution. Faced with such investigation and litigation, it is utterly unsurprising that Dillard has ceased political activity she might have otherwise undertaken.

The total lack of evidence of any threat or violent action by Dillard was so stark that the Justice Department lawyers tried to bring in an anonymous letter that accused Dillard of having “caches of weapons around her house.” Judge Marten criticized the government for submitting a letter that was “plainly inadmissible” and for introducing “absolutely nothing that would corroborate the allegations.” The government apparently never attempted to obtain a warrant to search Dillard’s home to see if the anonymous claims were even true. Turning up nothing in a search would have interfered with their attempt to use anonymous, Inquisition-type claims.

As Judge Marten concluded, the government’s evidence was “simply inadmissible or based on impermissible speculation.” In fact, the government’s arguments on possible future threats by Dillard were based on “speculation piled on top of speculation.” The claim against Dillard was “fatally flawed because it lacks any proof” of the essential components of proving that Dillard had made any threat of any kind against Means.

Dillard’s attorney Don McKinney rightly characterized the ruling as “a great victory for the First Amendment.” But this lawsuit should never have been filed in the first place. The Civil Rights Division has no business using federal laws to pursue an ideological agenda — in this case, intimidating the pro-life movement.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.

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Top Rated Comments   
"the Justice Department may have partially achieved what it wanted when it filed suit against Dillard. The judge concluded that Dillard’s decision to refrain from vigorous anti-abortion activities after the lawsuit began:

… may be due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice."


This was always the purpose of FACE. It's ALWAYS been about shutting down dissent, NEVER about protecting anybody from actual threats.
48 weeks ago
48 weeks ago Link To Comment
Context my illiterate friend. Context. If you chose to prosecute that statement then you would have had to prosecute Dr. Means' family members and friends who told her the very same thing...
48 weeks ago
48 weeks ago Link To Comment
The government still got what it wanted, didn't it? Speech was silenced and she was forced to spend thousands on defense.
48 weeks ago
48 weeks ago Link To Comment
All Comments   (42)
All Comments   (42)
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Two points

To TradConservative: Your argument only makes sense if one of two things is true. A) You believe that freedom of conscience extends to ending another persons life while no threat to your own is present or B) you believe that a human being is NOT a human being during the gestation process.

Scientifically, an unborn human being is just that, a human being. It has everything you have that makes you human after at about the twelfth week of pregnancy when the brain is fully formed. All chromosomes necessary are there from the very second the egg is fertilized. From the very beginning, the unborn baby has everything that distinguishes it genetically from either of it's parents.

Arguments about it's a woman's body are nonsense. Arguments about the viability of the unborn child are as well, unless of course you want to extend the right to murder children up to their third or fourth birthday as they really aren't viable at very young ages. There are so called ethics professors who argue for just that - sick bastards all!

The part of the article that was very disappointing to me was the whole "She's hoarding weapons" false claim. It's bad enough that the government would take an unnamed source who made an accusation and file it as evidence that she must be prosecuted, but to leave undefended her complete and 2nd constitutional right to have weapons is unforgivable. The article doesn't make this point and I don't believe any of the comments have either.
48 weeks ago
48 weeks ago Link To Comment
Convicting Dillard would have been a bonus effect, but it was not the Justice Department's objective. Silencing her was the objective, and in this the government succeeded. The larger objective was pour encourager l'autres, and in this it will likely succeed, too.

For the real message of the trial is simply to cause pause of those standing against government-approved political positions to make them think about how much money it will cost even certainly to prevail in court.

Political prosecutions define success in ways other than "convict."
48 weeks ago
48 weeks ago Link To Comment
"The judge concluded that Dillard’s decision to refrain from vigorous anti-abortion activities after the lawsuit began:
… may be due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice."

Not that much different than the chill placed on the TEA Party by the IRS, is it?
48 weeks ago
48 weeks ago Link To Comment
Could there be a financial component to this case? No matter who paid for Dillard's defense whether it was pro bono or a Pro Life organization or God forbid she had to pay it herself someone was losing money. The government doesn't care about how much it spends. It's not their money.
48 weeks ago
48 weeks ago Link To Comment
What reason would the Civil Rights Division have to get involved in prosecuting anti-abortion protesters? Whose civil rights are being violated? Or is the CRD simply the liberals enforcement arm for anything that might offend his One-ness?
48 weeks ago
48 weeks ago Link To Comment
> "Whose civil rights are being violated?"

None, save for the people the anti-abortion protesters are fighting to save.
47 weeks ago
47 weeks ago Link To Comment
The suite was dismissed. When has that ever bothered this administration? If obama and/or holder decides they don't like the 'verdict', when has that ever stopped them. One glaring example is the Zimmerman trial.
48 weeks ago
48 weeks ago Link To Comment
suite = case.
48 weeks ago
48 weeks ago Link To Comment
How sweet!


;-)
48 weeks ago
48 weeks ago Link To Comment
"What religions teach that abortion is a right?" The new Progressive churches, like The Episcopal, methodist, Presbyterian I believe. It's sort of like "the Church of What's Happening" syndrome.
48 weeks ago
48 weeks ago Link To Comment
Freedom of conscience and religious liberty? What religions teach that abortion is a right? Certainly none that are grounded in Natural Law. Conscience understands that freedom of conscience does not mean that anything that we would like to think is morally acceptable is so. Appealing to freedom of conscience and religious liberty can be made to evade dictates of conscience and of religious teachings that are grounded in Natural Law. I have read that there are two universals: knowledge that some things are morally wrong and desire to evade that knowledge without feeling the true guilt for doing so. Your posts seem a confirmation of those two universals.
48 weeks ago
48 weeks ago Link To Comment
Time to hold the DOJ CRD trial attorney's legally responsible. Impeachment?
48 weeks ago
48 weeks ago Link To Comment
This Administration is nothing but a dictatorship and Obama may declare himself President for life because this Congress both Democrat and Republican do not have the ability to make proper decisions.
48 weeks ago
48 weeks ago Link To Comment
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